Exhibit
4.1


 


 


 


 


 


PURCHASE CONTRACT AND PLEDGE AGREEMENT


 


Dated as of March 11, 2021


 


between


 


The AES Corporation


 


and


 


Deutsche Bank Trust Company Americas


 


as Purchase Contract Agent, Collateral Agent, Custodial Agent
and Securities Intermediary


 




     


     


    





 


 


TABLE OF CONTENTS


Page


 




	ARTICLE 1

                                                                                 

                                                                                DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

	Section 1.01.   Definitions	1
	Section 1.02.   Compliance Certificates and Opinions	19
	Section 1.03.   Form of Documents Delivered to Purchase Contract Agent or Collateral Agent	19
	Section 1.04.   Acts of Holders; Record Dates	20
	Section 1.05.   Notices	21
	Section 1.06.   Notice to Holders; Waiver	23
	Section 1.07.   Effect of Headings and Table of Contents	23
	Section 1.08.   Successors and Assigns	23
	Section 1.09.   Separability Clause	23
	Section 1.10.   Benefits of Agreement	23
	Section 1.11.   Governing Law; Jurisdiction; Waiver of Trial by Jury	24
	Section 1.12.   Legal Holidays	24
	Section 1.13.   Counterparts	25
	Section 1.14.   Inspection of Agreement	25
	Section 1.15.   Appointment of Financial Institution as Agent for the Company	25
	Section 1.16.   No Waiver	25
	ARTICLE 2

                                                                                 

                                                                                CERTIFICATE FORMS

	Section 2.01.   Forms of Certificates Generally	26
	Section 2.02.   Form of Purchase Contract Agent’s Certificate of Authentication	26
	ARTICLE 3

                                                                                 

                                                                                THE UNITS

	Section 3.01.   Amount; Form and Denominations	26
	Section 3.02.   Rights and Obligations Evidenced by the Certificates	26
	Section 3.03.   Execution, Authentication; Delivery and Dating	27
	Section 3.04.   Temporary Certificates	28
	Section 3.05.   Registration; Registration of Transfer and Exchange	29
	Section 3.06.   Book-entry Interests	30
	Section 3.07.   Appointment of Successor Depositary	31
	Section 3.08.   Definitive Certificates	31
	Section 3.09.   Mutilated, Destroyed, Lost and Stolen Certificates	32
	Section 3.10.   Persons Deemed Owners	33



 



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	Section 3.11.   Cancellation	34
	Section 3.12.   Creation of Treasury Units by Substitution of Treasury Security	35
	Section 3.13.   Creation of Cash Settled Units by Substitution of Cash	36
	Section 3.14.   Recreation of Corporate Units	38
	Section 3.15.   Transfer of Collateral Upon Occurrence of Termination Event	40
	Section 3.16.   No Consent to Assumption	42
	Section 3.17.   Substitutions	42
	ARTICLE 4

                                                                                 

                                                                                THE CONVERTIBLE PREFERRED STOCK

	Section 4.01.   Payments; Rights to Payments Preserved	42
	Section 4.02.   Payments Prior to or on Purchase Contract Settlement Date	44
	Section 4.03.   Notice and Voting	45
	Section 4.04.   Payments to Purchase Contract Agent	47
	Section 4.05.   Payments Held In Trust	47
	ARTICLE 5

                                                                                 

                                                                                THE PURCHASE CONTRACTS

	Section 5.01.   Purchase of Shares of Common Stock	47
	Section 5.02.   Remarketing; Notices; Separate Shares of Convertible Preferred Stock; Registration; Payment
of Purchase Price	49
	Section 5.03.   Issuance of Shares of Common Stock	57
	Section 5.04.   Fundamental Change Early Settlement	58
	Section 5.05.   Termination Event; Notice	63
	Section 5.06.   Early Settlement	63
	Section 5.07.   No Fractional Shares	66
	Section 5.08.   Charges and Taxes	66
	Section 5.09.   Contract Adjustment Payments	67
	Section 5.10.   Deferral of Contract Adjustment Payments	69
	Section 5.11.   Anti-dilution Adjustments	72
	Section 5.12.   Reorganization Events	80
	ARTICLE 6

                                                                                 

                                                                                RIGHTS AND REMEDIES OF HOLDERS

	Section 6.01.   Unconditional Right of Holders to Receive Contract Adjustment Payments and to Purchase Shares
of Common Stock	81
	Section 6.02.   Restoration of Rights and Remedies	81
	Section 6.03.   Rights and Remedies Cumulative	81
	Section 6.04.   Delay or Omission Not Waiver	81
	Section 6.05.   Undertaking for Costs	81
	Section 6.06.   Waiver of Stay or Extension Laws	82



 



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	ARTICLE 7

                                                                                 

                                                                                THE PURCHASE CONTRACT AGENT

	Section 7.01.   Certain Duties and Responsibilities	82
	Section 7.02.   Notice of Default	84
	Section 7.03.   Certain Rights of Purchase Contract Agent	84
	Section 7.04.   Not Responsible for Recitals or Issuance of Units	86
	Section 7.05.   May Hold Units	87
	Section 7.06.   Money Held in Custody	87
	Section 7.07.   Compensation and Reimbursement	87
	Section 7.08.   Corporate Purchase Contract Agent Required; Eligibility	88
	Section 7.09.   Resignation and Removal; Appointment of Successor	88
	Section 7.10.   Acceptance of Appointment by Successor	89
	Section 7.11.   Merger, Conversion, Consolidation or Succession to Business	90
	Section 7.12.   Preservation of Information; Communications to Holders	90
	Section 7.13.   No Obligations of Purchase Contract Agent	91
	Section 7.14.   Tax Compliance	91
	ARTICLE 8

                                                                                 

                                                                                SUPPLEMENTAL AGREEMENTS

	Section 8.01.   Supplemental Agreements Without Consent of Holders	91
	Section 8.02.   Supplemental Agreements with Consent of Holders	92
	Section 8.03.   Execution of Supplemental Agreements	93
	Section 8.04.   Effect of Supplemental Agreements	94
	Section 8.05.   Reference to Supplemental Agreements	94
	ARTICLE 9

                                                                                 

                                                                                CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER OR DISPOSITION

	Section 9.01.   Covenant Not To Consolidate, Merge, Sell, Convey, Transfer or Dispose Property except under
Certain Conditions	94
	Section 9.02.   Rights and Duties of Successor Corporation	95
	Section 9.03.   Opinion of Counsel Given to Purchase Contract Agent	95
	ARTICLE 10

                                                                                 

                                                                                COVENANTS

	Section 10.01.   Performance under Purchase Contracts	95
	Section 10.02.   Maintenance of Office or Agency	95
	Section 10.03.   Company to Reserve Common Stock	96
	Section 10.04.   Covenants as to Common Stock; Listing	96
	Section 10.05.   ERISA	97



 



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	Section 10.06.   Tax Treatment	97
	Section 10.07.   Withholding	97
	ARTICLE 11

                                                                                 

                                                                                PLEDGE

	Section 11.01.   Pledge	98
	Section 11.02.   Termination	98
	ARTICLE 12

                                                                                 

                                                                                ADMINISTRATION OF COLLATERAL

	Section 12.01.   Initial Deposit of Convertible Preferred Stock	98
	Section 12.02.   Establishment of Collateral Account	98
	Section 12.03.   Treatment as Financial Assets	99
	Section 12.04.   Sole Control by Collateral Agent	99
	Section 12.05.   Jurisdiction	100
	Section 12.06.   No Other Claims	100
	Section 12.07.   Investment and Release	100
	Section 12.08.   Treasury Securities	101
	Section 12.09.   Statements and Confirmations	101
	Section 12.10.   Tax Allocations	101
	Section 12.11.   No Other Agreements	102
	Section 12.12.   Powers Coupled with an Interest	102
	Section 12.13.   Waiver of Lien Waiver of Set-off	102
	ARTICLE 13

                                                                                 

                                                                                RIGHTS AND REMEDIES OF THE COLLATERAL AGENT

	Section 13.01.   Rights and Remedies of the Collateral Agent	102
	ARTICLE 14

                                                                                 

                                                                                REPRESENTATIONS AND WARRANTIES TO COLLATERAL AGENT; HOLDER COVENANTS

	Section 14.01.   Representations And Warranties	103
	Section 14.02.   Covenants	104
	ARTICLE 15

                                                                                 

                                                                                THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND THE SECURITIES INTERMEDIARY

	Section 15.01.   Appointment, Powers and Immunities	105



 



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	Section 15.02.   Instructions of the Company	106
	Section 15.03.   Reliance by Collateral Agent, Custodial Agent and Securities Intermediary	106
	Section 15.04.   Certain Rights	107
	Section 15.05.   Merger, Conversion, Consolidation or Succession to Business	107
	Section 15.06.   Rights in Other Capacities	108
	Section 15.07.   Non-reliance on the Collateral Agent, Custodial Agent and Securities Intermediary	108
	Section 15.08.   Compensation And Indemnity	108
	Section 15.09.   Failure to Act	109
	Section 15.10.   Resignation of Collateral Agent, the Custodial Agent and the Securities Intermediary	110
	Section 15.11.   Right to Appoint Agent or Advisor	111
	Section 15.12.   Survival	111
	Section 15.13.   Exculpation	111
	Section 15.14.   Expenses, Etc.	111
	ARTICLE 16

                                                                                 

                                                                                MISCELLANEOUS

	Section 16.01.   Company to Furnish Purchase Contract Agent Names and Addresses of Holders	112
	Section 16.02.   Preservation of Information; Communications to Holders	112
	Section 16.03.   Defaults, Waiver	112
	Section 16.04.   Purchase Contract Agent’s Knowledge of Defaults	112
	Section 16.05.   Security Interest Absolute	113
	Section 16.06.   Notice of Termination Event	113
	Section 16.07.   U.S.A. Patriot Act	113






 


	Exhibit A —	Form of Corporate Units Certificate
	Exhibit B —	Form of Treasury Units Certificate
	Exhibit C —	Form of Cash Settled Units Certificate
	Exhibit D —	Instruction to Purchase Contract Agent from Holder (To Create Treasury Units or Corporate Units)
	Exhibit E —	Instruction to Purchase Contract Agent from Holder (To Create Cash Settled Units)
	Exhibit F —	Notice from Purchase Contract Agent to Holders upon Termination Event
	Exhibit G —	Instruction from Purchase Contract Agent to Collateral Agent (Creation of Treasury Units)
	Exhibit H —	Instruction from Collateral Agent to Securities Intermediary (Creation of Treasury Units)
	Exhibit I —	Instruction from Purchase Contract Agent to Collateral Agent (Creation of Cash Settled Units)



 






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	Exhibit J —	Instruction from Collateral Agent to Securities Intermediary (Creation of Cash Settled Units)
	Exhibit K —	Instruction from Purchase Contract Agent to Collateral Agent (Recreation of Corporate Units)
	Exhibit L —	Instruction from Collateral Agent to Securities Intermediary (Recreation of Corporate Units)
	Exhibit M —	Instruction from Holder of Separate Shares of Convertible Preferred Stock to Custodial Agent Regarding Remarketing
	Exhibit N —	Instruction from Holder of Separate Shares of Convertible Preferred Stock to Custodial Agent Regarding Withdrawal from Remarketing
	Exhibit O —	Notification from Purchase Contract Agent to Collateral Agent Regarding [Fundamental Change Early Settlement][Early Settlement]
	Exhibit P —	Notice to Settle with Cash After Unsuccessful Final Remarketing
	Exhibit Q —	Notice from Purchase Contract Agent to Collateral Agent (Settlement with Separate Cash)
	Exhibit R —	Notice of Settlement with Separate Cash from Securities Intermediary to Purchase Contract Agent (Settlement with Separate Cash)
	Exhibit S —	Wire Instructions



 


 


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PURCHASE CONTRACT AND PLEDGE AGREEMENT,
dated as of March 11, 2021 between The AES Corporation, a Delaware corporation (the “Company”) and Deutsche
Bank Trust Company Americas, a New York banking corporation, not individually, but acting as purchase contract agent for, and as
attorney-in-fact of, the Holders from time to time of the Units (in such capacities, together with its successors and assigns in
such capacities, the “Purchase Contract Agent”), as collateral agent hereunder for the benefit of the Company
(in such capacity, together with its successors in such capacity, the “Collateral Agent”), as custodial agent
(in such capacity, together with its successors in such capacity, the “Custodial Agent”), as paying agent, as
conversion agent and as securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with respect to the Collateral
Account (in such capacity, together with its successors in such capacity, the “Securities Intermediary”).


 


RECITALS


 


WHEREAS, the Company has duly authorized
the execution and delivery of this Agreement and the Certificates evidencing the Units;


 


WHEREAS, all things necessary to
make the Purchase Contracts, when the Certificates are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Purchase Contract Agent, as provided in this Agreement, the valid obligations of the Company and the Holders,
and to constitute these presents a valid agreement of the Company, in accordance with its terms, have been done; and


 


WHEREAS, pursuant to the terms of
this Agreement and the Purchase Contracts, the Holders of the Units have irrevocably authorized the Purchase Contract Agent, as
attorney-in-fact of such Holders, among other things, to execute and deliver this Agreement on behalf of such Holders and to grant
the Pledge provided herein of the Collateral to secure the Obligations.


 


NOW, THEREFORE, the parties hereto agree as follows:


 


ARTICLE 1


 


DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section 1.01. Definitions.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:


 


(a) the terms defined in this Article
1 have the meanings assigned to them in this Article 1 and include the plural as well as the singular, and nouns and
pronouns of the masculine gender include the feminine and neuter genders;


 


(b) all accounting
terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles
in the United States;


 


(c) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section, Exhibit or other subdivision;


 




     


     


    

(d) the following terms, which are
defined in the UCC, shall have the meanings set forth therein: “certificated security,” “control,”
“financial asset,” “entitlement order,” “securities account” and “security
entitlement”; and


 


(e) the following terms have the
meanings given to them in this Section 1.01(e):


 


“Account Agreement” has the meaning
set forth in Section 12.05.


 


“Act” has the meaning, with respect
to any Holder, set forth in Section 1.04(a).


 


“Affiliate” of
any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control
with such Person. For the purposes of this definition, “control” when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.


 


“Agreement” means this
instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions hereof.


 


“Applicable AML Law” has the meaning
set forth in Section 16.07.


 


“Applicable Market Value”
means the average of the Daily VWAPs of the Common Stock during the Market Value Averaging Period, subject to Section 5.12;
provided that if 20 Trading Days for the Common Stock have not occurred during the period from, and including, the first
day of the Market Value Averaging Period to, and including, the second Scheduled Trading Day immediately preceding the Purchase
Contract Settlement Date, all remaining Trading Days in the Market Value Averaging Period shall be deemed to occur on such second
Scheduled Trading Day, and the Daily VWAP for each of those remaining Trading Days shall be the Daily VWAP on such second Scheduled
Trading Day or, if such day is not a Trading Day, the Closing Price of the Common Stock as of such day.


 


“Applicable
Ownership Interest in Convertible Preferred Stock” means a 1/10th, or 10%, undivided beneficial ownership interest in
one share of Convertible Preferred Stock that is a component of a Corporate Unit.


 


“Applicable Ownership Interest
in the Treasury Portfolio” means, with respect to a Corporate Unit and the Treasury Portfolio, a 1/10th, or 10%, undivided
beneficial ownership interest in $1,000 face amount of U.S. Treasury securities (or principal or interest strips thereof) included
in the Treasury Portfolio that mature on or prior to the Purchase Contract Settlement Date.


 


“Applicable
Remarketing Period” means any of (i) any Optional Remarketing Period specified by the Company pursuant to Section
5.02(a)(i) or (ii) the Final Remarketing Period, as the context requires.


 





 




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“Applicants” has the meaning set
forth in Section 7.12(b).


 


“Authorized Officer”
means the Company’s Chief Executive Officer, its President or one of its Vice Presidents or its Treasurer or one of its Assistant
Treasurers, or any other officer or agent of the Company duly authorized by the Board of Directors to act in respect of this Agreement.


 


“Bankruptcy Code”
means Title 11 of the United States Code, or any other law of the United States that from time to time provides a uniform system
of bankruptcy laws.


 


“Beneficial Owner”
means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest as reflected on
the books of the Depositary or on the books of a Person maintaining an account with such Depositary (directly as a Depositary Participant
or as an indirect participant, in each case in accordance with the rules of such Depositary).


 


“Blackout Period” means
the period (i) if the Company has elected an Optional Remarketing, from the close of business on the second Business Day immediately
preceding the first day of the Optional Remarketing Period to and including the Remarketing Settlement Date of such Optional Remarketing
Period or the date the Company announces that no Successful Optional Remarketing has occurred during such Optional Remarketing
Period, (ii) following any Successful Remarketing and (iii) after the close of business on the second Business Day immediately
preceding the first day of the Final Remarketing Period.


 


“Board of Directors”
means the board of directors of the Company or a duly authorized committee of that board.


 


“Board Resolution” means
one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification
and delivered to the Purchase Contract Agent.


 


“Book-Entry Interest
” means a beneficial interest in a Global Certificate, registered in the name of a Depositary or a nominee thereof, ownership
and transfers of which shall be maintained and made through book entries by such Depositary as described in Section 3.06.


 


“Business
Day” means any day other than a Saturday or a Sunday or any other day on which banking institutions and trust companies
in New York City, New York are authorized or required by law or executive order to remain closed.


 


“Cash” or “cash”
means any coin or currency of the United States as at the time shall be legal tender for payment of public and private debts.


 


“Cash Settled Unit” means,
following the substitution of Cash for Pledged Applicable Ownership Interests in Convertible Preferred Stock as Collateral to secure
a Holder’s obligations under the Purchase Contract, the collective rights and obligations of a Holder of a Cash Settled Units
Certificate in respect of such Cash, subject to the Pledge thereof, and the related Purchase Contract.


 





 




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“Cash
Settled Units Certificate” means a certificate evidencing the rights and obligations of a Holder in respect of the number
of Cash Settled Units specified on such certificate.


 


“Certificate”
means a Corporate Units Certificate, a Treasury Units Certificate or a Cash Settled Units Certificate, as the case may be.


 


“close of business” means 5:00
p.m., New York City time.


 


“Closing Price” per share
of Common Stock means, on any date of determination, the closing sale price (or if no closing sale price is reported, the average
of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that
date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common
Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant
date, the “Closing Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market
on the relevant date as reported by OTC Markets Group Inc. or similar organization. If the Common Stock is not so quoted, the “Closing
Price ” shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date
from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.


 


“Code” means the Internal Revenue
Code of 1986, as amended.


 


“Collateral” means the collective
reference to:


 


(i) the Collateral Account and all
investment property and other financial assets and Cash from time to time credited to the Collateral Account and all security
entitlements with respect thereto, including, without limitation, (A) the Applicable Ownership Interests in Convertible Preferred
Stock and security entitlements relating thereto (and the Convertible Preferred Stock and security entitlements relating thereto
delivered to the Collateral Agent in respect of such Applicable Ownership Interests in Convertible Preferred Stock), (B) the Applicable
Ownership Interests in the Treasury Portfolio of the Holders with respect to the Treasury Portfolio that is a component of the
Corporate Units from time to time and security entitlements relating thereto, (C) any Treasury Securities Transferred to the Securities
Intermediary from time to time in connection with the creation of Treasury Units in accordance with Section 3.12(a) hereof
and (D) any Cash Transferred to the Securities Intermediary from time to time in connection with the creation of Cash Settled
Units in accordance with Section 3.13(a) hereof;


 


(ii) all Proceeds
of any of the foregoing (whether such Proceeds arise before or after the commencement of any proceeding under any applicable bankruptcy,
insolvency or other similar law, by or against the pledgor or with respect to the pledgor); and


 


(iii) all powers and rights now owned
or hereafter acquired under or with respect to the Collateral.


 


“Collateral Account”
means the non-interest bearing account or any related deposit account of Deutsche Bank Trust Company Americas, as Collateral Agent,
maintained on the


 





 




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books of the Securities Intermediary and designated
“Deutsche Bank Trust Company Americas, as Collateral Agent of The AES Corporation, as pledgee of Deutsche Bank Trust Company
Americas, as the Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders,” and the subaccount maintained
therein of Deutsche Bank Trust Company Americas, as conversion agent.


 


“Collateral Agent”
means the Person named as “Collateral Agent” in the first paragraph of this Agreement until a successor Collateral
Agent shall have become such pursuant to this Agreement, and thereafter “Collateral Agent” shall mean the Person who
is then the Collateral Agent hereunder.


 


“collateral event of default” has
the meaning set forth in Section 13.01(b).


 


“Collateral Substitution”
means (i) with respect to the Corporate Units, the substitution of each 10 Pledged Applicable Ownership Interests in Convertible
Preferred Stock included in such Corporate Units with a Treasury Security for each 10 Corporate Units for which Collateral Substitution
is being effected or (ii) with respect to the Treasury Units, the substitution of each Treasury Security included in such Treasury
Units with a share of Convertible Preferred Stock for each 10 Treasury Units for which Collateral Substitution is being effected.


 


“Common Stock” means the common
stock, $0.01 par value, of the Company.


 


“Company” means the Person
named as the “Company” in the first paragraph of this Agreement until a successor shall have become such pursuant
to the applicable provisions of this Agreement, and thereafter “Company” shall mean such successor.


 


“Compounded Contract Adjustment
Payments” has the meaning set forth in Section 5.10(a).


 


“Constituent Person”
means, in respect of any Reorganization Event, a Person with which the Company is consolidated or into which the Company is merged
or which merged into the Company or to which the relevant sale or transfer was made, as the case may be, in connection with such
Reorganization Event.


 


“Contract Adjustment Payment
Method” has the meaning set forth in Section 5.09(e)(iv).


 


“Contract Adjustment Payments”
means the payments payable by the Company on the Payment Dates in respect of each Purchase Contract, at a rate per year of 6.875%
of the Stated Amount per Purchase Contract.


 


“Conversion Rate” has the meaning
set forth in the Series A Certificate of Designations.


 


“Convertible Preferred
Stock” means the series of preferred stock of the Company designated as “0% Series A Cumulative Perpetual Convertible
Preferred Stock,” without par value, with a liquidation preference of $1,000 per share created pursuant to the Series A Certificate
of Designations.


 





 




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“ Corporate Trust Office”
means the designated corporate trust office of the Purchase Contract Agent at which, at any particular time, its corporate trust
business shall be principally administered in New York, New York, which office at the date hereof is located at 60 Wall Street,
24th Floor, MS: NYC60-2405, New York, New York, 10005, Attention: Corporates Team, The AES Corporation, or such other
address as the Purchase Contract Agent may designate from time to time by notice to the Holders and the Company, or the designated
corporate trust office of any successor Purchase Contract Agent (or such other address as such successor Purchase Contract Agent
may designate from time to time by notice to the Holders and the Company).


 


“Corporate Unit”
means the collective rights and obligations of a Holder of a Corporate Units Certificate in respect of the Applicable Ownership
Interest in Convertible Preferred Stock or the Applicable Ownership Interest in the Treasury Portfolio, as the case may be, subject
in each case to the Pledge thereof and the related Purchase Contract.


 


“Corporate Units Certificate”
means a certificate evidencing the rights and obligations of a Holder in respect of the number of Corporate Units specified on
such certificate.


 


“Custodial Agent”
means the Person named as Custodial Agent in the first paragraph of this Agreement until a successor Custodial Agent shall have
become such pursuant to the applicable provisions of this Agreement, and thereafter “Custodial Agent” shall
mean the Person who is then the Custodial Agent hereunder.


 


“Daily VWAP”
means, in respect of the Common Stock, on any Trading Day, the per share volume weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page “AES <Equity> AQR” (or its equivalent successor if such page is
not available) in respect of the period from the scheduled open of trading on such Trading Day until the scheduled close of trading
on such Trading Day (or if such VWAP is unavailable, the market price of one share of Common Stock on such Trading Day determined,
using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose
by the Company).


 


“Depositary” means a
clearing agency registered under Section 17A of the Exchange Act that is designated to act as Depositary for the Units as contemplated
by Section 3.06 and Section 3.07.


 


“Depositary Participant”
means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depositary effects book
entry transfers and pledges of securities deposited with the Depositary.


 


“DTC” means The Depository Trust
Company.


 


“Early Settlement” has the meaning
set forth in Section 5.06(a).


 


“Early Settlement Amount” has the
meaning set forth in Section 5.06(b).


 





 




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“Early
Settlement Averaging Period ” with respect to any Early Settlement means the 20 consecutive Trading Day period beginning
on, and including, the Trading Day immediately following the relevant Early Settlement Date.


 


“Early Settlement Date” has the
meaning set forth in Section 5.06(b).


 


“Effective Date” has the meaning
specified in Section 5.04(b).


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended.


 


“Ex-Dividend Date” when
used with respect to any issuance or distribution on the Common Stock or any other security, means the first date on which the
Common Stock or such other security, as applicable, trades, regular way, on the principal U.S. securities exchange or market on
which the Common Stock or such other security, as applicable, is listed or traded at that time, without the right to receive the
issuance or distribution in question, from the Company or the issuer of such security, as the case may be, or, if applicable, from
the seller of Common Stock or such security, as the case may be, on such exchange or market (in the form of due bills or otherwise)
as determined by such exchange or market.


 


“Exchange
Act ” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time
to time, and the rules and regulations promulgated thereunder.


 


“Exchange Property” has the meaning
set forth in Section 5.12.


 


“Exchange Property Unit”
means, in respect of any Reorganization Event, the kind and amount of Exchange Property receivable in such Reorganization Event
(without any interest thereon, and without any right to dividends or distribution thereon which have a record date that is prior
to the applicable settlement date) per share of Common Stock by a holder of Common Stock that is not a Constituent Person, or an
Affiliate of a Constituent Person, to the extent such Reorganization Event provides for different treatment of Common Stock held
by the Constituent Person and/or the Affiliates of the Constituent Person, on the one hand, and non-Affiliates of a Constituent
Person, on the other hand.


 


“Executed Documentation” has the
meaning set forth in Section 1.05.


 


“Expiration Date” has the meaning
set forth in Section 1.04(e).


 


“Extension Period” has the meaning
set forth in Section 5.10(a).


 


“Final Remarketing”
means any Remarketing of the Convertible Preferred Stock that occurs during the Final Remarketing Period by the Remarketing Agent(s)
pursuant to the Remarketing Agreement.


 


“Final Remarketing Period”
means the five Business Day period beginning on, and including, the sixth Business Day, and ending on, and including, the second
Business Day immediately preceding the Purchase Contract Settlement Date.


 





 




    7 


     


    

“First Redemption Date”
has the meaning set forth in the Series A Certificate of Designations.


 


“Five-Day Average Price”
means the average of the Daily VWAPs per share of Common Stock over the five consecutive Trading Day period ending on the second
Trading Day immediately preceding the applicable Payment Date or other date in respect of which Contract Adjustment Payments are
being paid.


 


“Fundamental Change” means the
occurrence after the Units are originally issued of:


 


(i) any transaction or event (whether
by means of a share exchange or tender offer applicable to the Common Stock, a liquidation, consolidation, recapitalization, reclassification,
combination or merger of the Company or a sale, lease or other transfer of all or substantially all of the Company’s consolidated
assets) or a series of related transactions or events pursuant to which 50% or more of the Company’s outstanding Common Stock
is exchanged for, converted into or constitutes solely the right to receive Cash, securities or other property, more than 10% of
which consists of Cash, securities or other property that is not, or will not be upon consummation of such transaction, listed
on a United States national or regional securities exchange for a period of 30 or more consecutive Trading Days; or


 


(ii) the Common Stock ceases to be
listed or quoted on a United States national or regional securities exchange for 30 or more consecutive Trading Days.


 


“Fundamental Change Early Settlement”
has the meaning set forth in Section 5.04(a).


 


“Fundamental Change Early
Settlement Date” has the meaning set forth in Section 5.04(a)(i).


 


“Fundamental Change Early
Settlement Right” has the meaning set forth in Section 5.04(a).


 


“Global Certificate”
means a Certificate that evidences all or part of the Units and is registered in the name of the Depositary or a nominee thereof.


 


“Global Preferred Share”
has the meaning set forth in the Series A Certificate of Designations.


 


“Hague Securities Convention”
means the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, July 5, 2006,
17 U.S.T. 401, 46 I.L.M. 649.


 


“Holder” means, with
respect to a Unit, the Person in whose name the Unit evidenced by a Certificate is registered in the Security Register.


 


“Increased Balance” has the meaning
set forth in Section 12.07(b).


 


“Increased Conversion Rate”
means, in connection with a Remarketing, a number of shares of Common Stock per share of the Convertible Preferred Stock equal
to $1,000 divided by


 





 




    8 


     


    

122.5% of the Closing Price on the pricing date of such
Remarketing (rounded to the nearest ten-thousandth of a share) applicable to the Convertible Preferred Stock if such Remarketing
is a Successful Remarketing if and as determined by the Company pursuant to the terms of this Agreement and the relevant Remarketing
Agreement.


 


“ Increased Dividend Rate”
means, in connection with a Remarketing, the Dividend Rate (as such term is defined in the Series A Certificate of Designations)
per annum rounded to the nearest one thousandth (0.001) of one percent applicable to the Convertible Preferred Stock if such Remarketing
is a Successful Remarketing if and as determined by the Company pursuant to the terms of this Agreement and the relevant Remarketing
Agreement.


 


“Increased
Rates” means, collectively, in connection with a Remarketing, the Increased Conversion Rate, if any, and the Increased
Dividend Rate, if any, in each case, applicable to such Remarketing.


 


“Indebtedness”
means indebtedness of any kind of the Company unless the instrument under which such indebtedness is incurred expressly provides
that it is on a parity in right of payment with or subordinate in right of payment to the Contract Adjustment Payments.


 


“Indemnitees” has the meaning set
forth in Section 7.07(c).


 


“Issuer Order”
or “Issuer Request” means a written order or request signed in the name of the Company by an Authorized Officer
and delivered to the Purchase Contract Agent.


 


“Losses” has the meaning set forth
in Section 15.08(b).


 


“Make-Whole Shares” has the meaning
set forth in Section 5.04(a).


 


“Market Disruption Event”
means (i) a failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed
or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00
p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half- hour period in the aggregate
during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating
to the Common Stock.


 


“Market Value Averaging
Period” means the 20 consecutive Trading Day period beginning on, and including, the 21st Scheduled Trading Day immediately
preceding the Purchase Contract Settlement Date.


 


“Maximum Settlement Rate” has the
meaning set forth in Section 5.01(a)(i).


 


“Minimum Stock Price” has the meaning
set forth in Section 5.04(b).


 


“Modified Redemption
Date” has the meaning set forth in the Series A Certificate of Designations.


 





 




    9 


     


    

“NYSE” means The New York Stock
Exchange and its successors.


 


“Obligations” means,
with respect to each Holder, all obligations and liabilities of such Holder under such Holder’s Purchase Contract and this
Agreement or any other document made, delivered or given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before and after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding, relating to such Holder, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees, expenses and disbursements of counsel to the Company or the Purchase Contract Agent, the Collateral Agent, the Custodial
Agent, or the Securities Intermediary that are required to be paid by the Holder pursuant to the terms of any of the foregoing
agreements).


 


“Officer’s Certificate”
means a certificate signed by the Authorized Officer and delivered to the Purchase Contract Agent. Any Officer’s Certificate
delivered with respect to compliance with a condition or covenant provided for in this Agreement shall include the information
set forth in the second paragraph of Section 1.02 hereof.


 


“open of business” means 9:00 a.m.,
New York City time.


 


“Opinion
of Counsel” means a written opinion of counsel, who may be counsel to the Company (and who may be an employee of the
Company). An opinion of counsel may rely on certificates as to matters of fact.


 


“Optional Remarketing”
means any Remarketing of the Convertible Preferred Stock that occurs during the Optional Remarketing Window by the Remarketing
Agent(s) pursuant to the Remarketing Agreement.


 


“Optional Remarketing Date”
means the date the Convertible Preferred Stock offered in an Optional Remarketing are priced by the Remarketing Agent(s).


 


“Optional Remarketing Period” has
the meaning specified in Section 5.02(a)(i).


 


“Optional Remarketing
Settlement Date” means the second Business Day following the Optional Remarketing Date, or such other date the Company
and the Remarketing Agent agree to.


 


“Optional Remarketing Window”
means the period from and including November 15, 2023 ending on and including February 1, 2024.


 


“Outstanding”
means, as of any date of determination, all Units evidenced by Certificates theretofore authenticated, executed and delivered under
this Agreement, except:


 


(i)  all Units,
if a Termination Event has occurred;


 





 




    10 


     


    

(ii) Units evidenced by Certificates
theretofore cancelled by the Purchase Contract Agent or delivered to the Purchase Contract Agent for cancellation or deemed cancelled
pursuant to the provisions of this Agreement; and


 


(iii) Units evidenced by Certificates
in exchange for or in lieu of which other Certificates have been authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in respect of which there shall have been presented to the Purchase
Contract Agent proof satisfactory to it that such Certificate is held by a protected purchaser in whose hands the Units evidenced
by such Certificate are valid obligations of the Company;


 


provided, however, that in determining whether the Holders
of the requisite number of the Units have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
Units owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding Units, except
that, in determining whether the Purchase Contract Agent shall be authorized and protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units that a Responsible Officer of the Purchase Contract Agent actually
knows to be so owned shall be so disregarded. Units so owned that have been pledged in good faith may be regarded as Outstanding
Units if the pledgee establishes to the satisfaction of the Purchase Contract Agent the pledgee’s right so to act with respect
to such Units and that the pledgee is not the Company or any Affiliate of the Company.


 


“Payment Date”
means February 15, May 15, August 15 and November 15 of each year, commencing May 15, 2021.


 


“Permitted
Investments” means any one of the following, but, except for clause (4) below, in any case each investment shall not
exceed 5% of the total debt outstanding of any single issuer:


 


(1) any evidence of indebtedness
with an original maturity of 365 days or less issued, or directly and fully guaranteed or insured, by the United States of America
or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged
in support of the timely payment thereof or such indebtedness constitutes a general obligation of it);


 


(2)
time deposits or certificates of deposit with an original maturity of 365 days or less of any institution which
is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500 million
at the time of deposit and having a rating at the time of deposit at least equal to “A-1” by Standard &
Poor’s Ratings Services (“S&P”) and at least equal to “P-1” by Moody’s Investors
Service, Inc. (“Moody’s”) (and which may include the institution acting as the Collateral Agent);


 


(3)
investments in commercial paper, other than commercial paper issued by the Company or its Affiliates, of any corporation incorporated
under the laws of the United States or any State thereof, which commercial paper has a rating at the time of purchase at least
equal to “A-1” by S&P or at least equal to “P-1” by Moody’s; and


 







    11 


     


    

(4) investments
in money market funds (including, but not limited to, money market funds managed by the institution acting as the Collateral Agent
or an affiliate of the institution acting as the Collateral Agent) registered under the Investment Company Act of 1940, as amended,
rated in the highest applicable rating category by S&P or Moody’s.


 


“Person” means
a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other
entity of whatever nature.


 


“Plan”
means an employee benefit plan that is subject to ERISA, a plan or individual retirement account that is subject to Section 4975
of the Code or any entity whose assets are considered assets of any such plan.


 


“Pledge” means the lien and security
interest in the Collateral created by this Agreement.


 


“Pledge Indemnitees” has the meaning
set forth in Section 15.08(b).


 


“Pledged Applicable Ownership
Interests in Convertible Preferred Stock” means the Applicable Ownership Interests in Convertible Preferred Stock and
security entitlements with respect thereto from time to time credited to the Collateral Account and not then released from the
Pledge.


 


“Pledged Applicable Ownership
Interests in the Treasury Portfolio” means the U.S. Treasury securities described in the definition of Applicable Ownership
Interests in the Treasury Portfolio and security entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.


 


“ Pledged Cash”
means the Cash credited to the Collateral Account and not then released from the Pledge.


 


“Pledged Convertible Preferred Share”
has the meaning set forth in Section 12.07(b).


 


“Pledged Treasury Securities”
means Treasury Securities and security entitlements with respect thereto from time to time credited to the Collateral Account and
not then released from the Pledge.


 


“Predecessor Corporate
Units Certificate” of any particular Corporate Units Certificate means every previous Corporate Units Certificate evidencing
all or a portion of the rights and obligations of the Company and the Holder under the Corporate Units evidenced thereby; and,
for the purposes of this definition, any Corporate Units Certificate authenticated and delivered under Section 3.09 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Corporate Units Certificate shall be deemed to evidence the same rights
and obligations of the Company and the Holder as the mutilated, destroyed, lost or stolen Corporate Units Certificate.


 


“Predecessor Treasury
Units Certificate” of any particular Treasury Units Certificate means every previous Treasury Units Certificate evidencing
all or a portion of the rights and


 





 




    12 


     


    

obligations of the Company and the Holder under the
Treasury Units evidenced thereby; and, for the purposes of this definition, any Treasury Units Certificate authenticated and delivered
under Section 3.09 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury Units Certificate shall
be deemed to evidence the same rights and obligations of the Company and the Holder as the mutilated, destroyed, lost or stolen
Treasury Units Certificate.


 


“Primary Treasury Dealer” means
a primary U.S. government securities dealer.


 


“Pro Rata Portion” of
each Treasury Unit on any date means a fraction, expressed as a percentage rounded to the nearest one-thousandth of a percent,
the numerator of which is one and the denominator of which is the total number of Outstanding Treasury Units on such date.


 


“Proceeds” has
the meaning ascribed thereto in the UCC and includes, without limitation, all interest, dividends, Cash, instruments, securities,
financial assets and other property received, receivable or otherwise distributed upon the sale (including, without limitation,
any Remarketing), exchange, collection, maturity or disposition of any financial assets from time to time credited to the Collateral
Account.


 


“Prospectus”
means the prospectus relating to the delivery of shares or any securities in connection with an Early Settlement pursuant to Section
5.06(a) or a Fundamental Change Early Settlement of Purchase Contracts pursuant to Section 5. 04, in the form in which
first filed, or transmitted for filing, with the Securities and Exchange Commission after the effective date of the Registration
Statement pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein as of the
date of such Prospectus.


 


“Purchase Contract”
means, with respect to any Unit, the contract forming a part of such Unit and obligating the Company to (i) sell, and the Holder
of such Unit to purchase from the Company, shares of Common Stock and (ii) pay the Holder thereof Contract Adjustment Payments,
subject to the Company’s right to defer Contract Adjustment Payments pursuant to Section 5.10, in each case on the
terms and subject to the conditions set forth in Article 5 hereof.


 


“Purchase Contract Agent”
means the Person named as the “Purchase Contract Agent” in the first paragraph of this Agreement until a successor
Purchase Contract Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Purchase
Contract Agent” shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.


 


“Purchase Contract Settlement Date”
means February 15, 2024.


 


“Purchase Price” has the meaning
set forth in Section 5.01(a).


 


“Quotation Agent” means any Primary
Treasury Dealer selected by the Company.


 


“Record Date”
for any distribution and any Contract Adjustment Payment payable on any Payment Date means the first day of the calendar month
in which the relevant Payment Date falls (whether or not a Business Day) or if the Units are held in global book-entry form, the
“Record Date” means the Business Day immediately preceding the applicable Payment Date; provided that for purposes
of Section 5.11, “Record Date” means, with respect to any dividend,


 





 




    13 


     


    

distribution or other transaction or event in which
the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or
in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors, by statute, by contract or otherwise).


 


“Reduced Balance” has the meaning
set forth in Section 12.07(b).


 


“Reference Dividend” has the meaning
set forth in Section 5.11(d).


 


“Reference Price” means $25.88,
subject to adjustment as provided herein.


 


“Registration Statement”
means (i) in respect of any Early Settlement or Fundamental Change Early Settlement, a registration statement under the Securities
Act prepared by the Company covering, inter alia, the delivery by the Company of any securities in connection with an Early
Settlement on the Early Settlement Date under Section 5.06 or a Fundamental Change Early Settlement on the Fundamental Change
Early Settlement Date under Section 5.04(a), and (ii) in respect of any Contract Adjustment Payment made in shares of Common
Stock (in whole or in part), a registration statement under the Securities Act prepared by the Company covering, inter alia, the
issuance of or resales of shares of Common Stock issued as a Contract Adjustment Payment pursuant to Section 5.09(e)(i),
in each case, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in such registration
statement, and any post-effective amendments thereto.


 


“Released Share” has the meaning
set forth in Section 12.07(b). “Remarketing” will have the meaning set forth in the Remarketing Agreement.


 


“Remarketing Agent(s)”
has the meaning set forth in the Series A Certificate of Designations.


 


“Remarketing Agreement”
means a Remarketing Agreement to be entered into between the Company and one or more Remarketing Agents setting forth the terms
of a Remarketing.


 


“Remarketing Date”
means the date the Convertible Preferred Stock offered in an Optional Remarketing Period or the Final Remarketing Period are priced
by the Company and the Remarketing Agent(s).


 


“Remarketing Fee”
means, in the event of a Successful Remarketing, a remarketing fee, if any, paid to the Remarketing Agent(s) to be agreed upon
in writing by the Company and the Remarketing Agent(s) prior to any Remarketing pursuant to the Remarketing Agreement.


 


“ Remarketing Price”
means (i) in the case of an Optional Remarketing, the sum of (x) 100% of the Treasury Portfolio Purchase Price and (y) the Separate
Shares Purchase Price (if any) and (ii) in the case of the Final Remarketing, $1,000 multiplied by the aggregate number
of shares of Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in


 





 




    14 


     


    

Convertible Preferred Stock and Separate Shares of
Convertible Preferred Stock to be remarketed.


 


“Remarketing Price Per
Share” means, for each share of Convertible Preferred Stock, an amount in Cash equal to the quotient of the Treasury
Portfolio Purchase Price divided by the number of shares of Convertible Preferred Stock underlying the Pledged Applicable
Ownership Interests in Convertible Preferred Stock that are held as components of Corporate Units and remarketed in an Optional
Remarketing.


 


“Remarketing Settlement
Date” means (i) in the case of a Successful Optional Remarketing occurring during an Optional Remarketing Period, the
Optional Remarketing Settlement Date for such Successful Optional Remarketing and (ii) in the case of the Final Remarketing, the
Purchase Contract Settlement Date, or such other date as the Company and the Remarketing Agent(s) agree to.


 


“Reorganization Event” has the
meaning specified in Section 5.12


 


“Responsible Officer”
means, when used with respect to the Purchase Contract Agent, any officer of the Purchase Contract Agent including any managing
director, director, vice president, assistant vice president, assistant secretary, associate or any other officer or assistant
officer of the Purchase Contract Agent customarily performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, with responsibility for the administration of this Agreement located at the Corporate Trust
Office of the Purchase Contract Agent, who shall have direct responsibility for the administration of this Agreement, and for the
purposes of Section 7.01(b)(ii) and the proviso of Section 7.02 shall also include any other officer of the Purchase
Contract Agent to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with
the particular subject.


 


“Scheduled Trading Day” means any
day that is scheduled to be a Trading Day.


 


“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.


 


“Securities Intermediary”
means the Person named as Securities Intermediary in the first paragraph of this Agreement until a successor Securities Intermediary
shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Securities Intermediary”
shall mean such successor or any subsequent successor.


 


“Security Register”
and “Securities Registrar” have the respective meanings set forth in Section 3.05.


 


“Separate Shares of Convertible
Preferred Stock” means shares of Convertible Preferred Stock that have been released from the Pledge following Collateral
Substitution and therefore no longer underlie Corporate Units.


 


“Separate Shares Purchase Price”
means, for the shares of Convertible Preferred Stock remarketed in any Optional Remarketing, the amount in Cash equal to the product
of (i) the


 





 




    15 


     


    

Remarketing Price Per Share and (ii) the aggregate
number of Separate Shares of Convertible Preferred Stock remarketed in such Optional Remarketing.


 


“Series A Certificate of
Designations” means the certificate of designations, dated as of March 11, 2021, amending the Company’s Sixth Restated
Certificate of Incorporation creating the Convertible Preferred Stock.


 


“Series B Certificate of
Designations” means the certificate of designations, dated as of March 11, 2021, amending the Company’s Sixth Restated
Certificate of Incorporation creating the Series B Preferred Stock.


 


“Series B Preferred Stock”
means the series of preferred stock of the Company designated as “0% Series B Cumulative Perpetual Preferred Stock,”
without par value, with a liquidation preference of $1,000 per share created pursuant to the Series B Certificate of Designations.


 


“Settlement Rate” has the meaning
set forth in Section 5.01(a).


 


“Spin-Off” has the meaning specified
in Section 5.11(c)(2).


 


“Stated Amount” means $100.


 


“Stock Price” has the meaning specified
in Section 5.04(b).


 


“Subjected Share” has the meaning
set forth in Section 12.07(b).


 


“ Subsidiary” means a
corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more Subsidiaries. For the purposes of this definition, “voting
stock ” means stock which ordinarily has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any contingency.


 


“Successful Final Remarketing”
has the meaning set forth in Section 5.02(b)(v).


 


“Successful Optional Remarketing”
has the meaning set forth in Section 5.02(a)(iv).


 


“Successful Remarketing”
means, as applicable, a Successful Optional Remarketing or a Successful Final Remarketing.


 


“Termination Date” means the date,
if any, on which a Termination Event occurs.


 


“Termination Event”
means that at any time on or prior to the Purchase Contract Settlement Date:


 


(i) the Company institutes or has
instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors’ rights, or a petition for its winding-up or liquidation,


 





 




    16 


     


    

and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A) results in a judgment of insolvency or bankruptcy or the entry
of an order for relief or the making of an order for its winding-up or liquidation or (B) is not dismissed, discharged, stayed
or restrained in each case within 30 days of the institution or presentation thereof and if such proceeding, judgment, petition
or order shall have been entered more than 60 days prior to the Purchase Contract Settlement Date, such proceeding, judgment, petition
or order shall have continued undischarged and unstayed for a period of 60 days; or


 


(ii) the Company seeks or becomes
subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar
official for it or for all or substantially all its assets.


 


“TRADES” means
the Treasury/Reserve Automated Debt Entry System maintained by the Federal Reserve Bank of New York pursuant to the TRADES Regulations.


 


“TRADES Regulations”
means the regulations of the United States Department of the Treasury, published at 31 C.F.R. Part 357, as amended from time to
time. Unless otherwise defined herein, all terms defined in the TRADES Regulations are used herein as therein defined.


 


“Trading Day”
means (a) a day (i) on which the NYSE, or, if the Common Stock is not then listed on the NYSE, the principal exchange or quotation
system on which the Common Stock is listed or admitted for trading, is scheduled to open for business and (ii) on which there has
not occurred or does not exist a Market Disruption Event, or (b) if the Common Stock is not so listed or admitted for trading,
a “Trading Day” means a Business Day.


 


“Transfer” means
(i) in the case of certificated securities in registered form, delivery as provided in Section 8-301(a) of the UCC, indorsed to
the transferee or in blank by an effective endorsement; (ii) in the case of Treasury securities, registration of the transferee
as the owner of such Treasury securities on TRADES; and (iii) in the case of security entitlements, including, without limitation,
security entitlements with respect to Treasury securities, a securities intermediary indicating by book-entry that such security
entitlement has been credited to the transferee’s securities account.


 


“Transfer
Agent” means Computershare Trust Company, N.A. as registrar and transfer agent for the Convertible Preferred Stock, or
any successor thereto as described in the Series A Certificate of Designations.


 


“Treasury Portfolio”
means U.S. Treasury securities (or principal or interest strips thereof) that mature on or prior to the Purchase Contract Settlement
Date in an aggregate amount at maturity equal to $1,000 multiplied by the number of shares of Convertible Preferred Stock
underlying Applicable Ownership Interests in Convertible Preferred Stock included in the Corporate Units on the Optional Remarketing
Date; provided that if the U.S. Treasury securities (or principal or interest strips thereof) that are to be included in
the Treasury Portfolio in connection with a Successful Optional Remarketing have a yield that is less than zero, the Treasury Portfolio
shall consist of an amount in Cash equal to the aggregate principal amount at maturity of the U.S. Treasury securities described
above, in which case references herein to


 





 




    17 


     


    

“U.S. Treasury securities (or principal and interest
strips thereof)” in connection with the Treasury Portfolio shall, thereafter, be deemed to be references to such amount of
Cash.


 


“Treasury Portfolio Purchase
Price” means the lowest aggregate ask-side price quoted by a primary U.S. government securities dealer to the Quotation
Agent between 9:00 a.m. and 4:00 p.m., New York City time, on the Optional Remarketing Date for the purchase of the Treasury Portfolio
for settlement on the Optional Remarketing Settlement Date.


 


“Treasury Security” means
a zero-coupon U.S. Treasury security with a principal amount of $1,000 that matures on or prior to the Purchase Contract Settlement
Date (e.g., CUSIP No. 912820L47).


 


“Treasury Unit”
means, following the substitution of a Treasury Security for Pledged Applicable Ownership Interests in Convertible Preferred Stock
as Collateral to secure a Holder’s obligations under the Purchase Contract, the collective rights and obligations of a Holder
of a Treasury Units Certificate in respect of a 1/10th undivided beneficial ownership interest in a Treasury Security, subject
to the Pledge thereof, and the related Purchase Contract.


 


“Treasury Units Certificate”
means a certificate evidencing the rights and obligations of a Holder in respect of the number of Treasury Units specified on such
certificate.


 


“UCC” means the
Uniform Commercial Code as in effect in the State of New York from time to time.


 


“Underwriters”
means the underwriters identified in Schedule A to the Underwriting Agreement.


 


“ Underwriting Agreement”
means the Underwriting Agreement, dated March 5, 2021, between the Company and Citigroup Global Markets Inc., Goldman Sachs &
Co. LLC, BofA Securities, Inc. and Morgan Stanley & Co. LLC, as representatives of the Underwriters, relating to the sale of
Corporate Units.


 


“Unit” means a Corporate Unit,
a Cash Settled Unit or a Treasury Unit, as the case may be.


 


“Unsuccessful Final Remarketing”
has the meaning set forth in Section 5.02(b)(vii). “Unsuccessful Optional Remarketing” has the meaning
set forth in Section 5.02(a)(v).


 


“Unsuccessful Remarketing”
means, as applicable, an Unsuccessful Optional Remarketing or an Unsuccessful Final Remarketing.


 


“Valuation Period” has the meaning
set forth in Section 5.11(c)(2).


 


“Value” means,
with respect to any item of Collateral on any date, as to (1) Cash, the amount thereof, (2) Treasury Securities, the aggregate
principal amount thereof at maturity, (3) Applicable Ownership Interests in the Treasury Portfolio, the appropriate aggregate percentage
of the aggregate principal amount at maturity of the Treasury Portfolio and (4) Applicable


 





 




    18 


     


    

Ownership Interests in Convertible Preferred Stock,
$1,000 multiplied by the aggregate number of the underlying shares of Convertible Preferred Stock.


 


Section 1.02. Compliance Certificates
and Opinions . Except as otherwise expressly provided by this Agreement, upon any application or request by the Company to
the Purchase Contract Agent, the Custodial Agent or the Collateral Agent to take any action in accordance with any provision of
this Agreement, the Company shall furnish to the Purchase Contract Agent, the Custodial Agent or the Collateral Agent an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate
or opinion need be furnished.


 


Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Agreement shall include:


 


(a) a statement that each individual
signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;


 


(b) a brief statement as to the nature
and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based;


 


(c) a statement that, in the opinion of each
such individual, he or she has made such examination or investigation as is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been complied with; and


 


(d) a statement as to whether, in
the opinion of each such individual, such condition or covenant has been complied with.


 


Section 1.03. Form of Documents
Delivered to Purchase Contract Agent or Collateral Agent. In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company
may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with
respect to the matters upon which its certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such factual matters is in the possession of the Company,
unless such


 





 




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counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to such matters are erroneous.


 


Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they
may, but need not, be consolidated and form one instrument.


 


Section 1.04. Acts of Holders; Record
Dates. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement
to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Purchase Contract Agent and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject
to Section 7.01) conclusive in favor of the Purchase Contract Agent and the Company, if made in the manner provided in this
(a).


 


(b) The fact and date of the execution by
any Person of any such instrument or writing may be proved in any manner that the Purchase Contract Agent deems sufficient.


 


(c)
The ownership of Units shall be proved by the Security Register.


 


(d)
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Unit shall bind every
future Holder of the same Unit and the Holder of every Certificate evidencing such Unit issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Purchase
Contract Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Certificate.


 


(e) The Company may set any date as
a record date for the purpose of determining the Holders of Outstanding Units entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or
taken by Holders. If any record date is set pursuant to this paragraph, the Holders of the Outstanding Corporate Units, the Outstanding
Treasury Units and the Outstanding Cash Settled Units, as the case may be, on such record date, and no other Holders, shall be
entitled to take the relevant action with respect to the Corporate Units, the Treasury Units or the Cash Settled Units, as the
case may be, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective
hereunder unless taken prior to or on the applicable Expiration Date by Holders of the requisite number of Outstanding Units on
such record date. Nothing contained in this paragraph shall be construed to prevent the Company from setting a new record date
for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously
set shall automatically and with no action by any Person be cancelled and be of no effect), and nothing contained in this paragraph
shall be construed to render ineffective any action taken by Holders


 





 




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of the requisite number of Outstanding Units on the
date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Purchase
Contract Agent in writing and to each Holder in the manner set forth in Section 1.06.


 


With respect to any record date set pursuant to this
Section 1.04(e), the Company may designate any date as the “Expiration Date” and from time to time may change
the Expiration Date to any later day; provided that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the Purchase Contract Agent in writing, and to each Holder in the manner set forth in Section 1.06,
prior to or on the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant
to this (a), the Company shall be deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable record date.


 


Section 1.05. Notices . All
notices, requests, consents, directions, instructions and other communications provided for herein (including, without limitation,
any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation,
by telecopy) delivered to the intended recipient at the “Address for Notices” specified below its name on the signature
pages hereof or, as to any party, at such other address as shall be designated by such party in a notice to the other parties.
Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted
by telecopier, facsimile, electronically (and in the case of the Purchase Contract Agent, upon the Purchase Contract Agent’s
confirmation of receipt in writing or by telephone) or personally delivered or, in the case of a mailed notice, upon receipt, in
each case given or addressed as aforesaid.


 


Each of the Purchase Contract Agent, Collateral Agent, Custodial
Agent and Securities Intermediary shall have the right, but shall not be required, to conclusively rely upon and comply with notices,
instructions, directions or other communications sent by e-mail, facsimile and other similar unsecured electronic methods by persons
reasonably believed by such entity to be authorized to give instructions and directions on behalf of the Company. Each of the Purchase
Contract Agent, Collateral Agent, Custodial Agent and Securities Intermediary shall have no duty or obligation to verify or confirm
that the person who sent such instructions or directions is, in fact, a person authorized to give instructions or directions on
behalf of the Company; and each such entity shall have no liability for any losses, liabilities, costs or expenses incurred or
sustained by the Company as a result of such reliance upon or compliance with such notices, instructions, directions or other communications.
The Company agrees to assume all risks arising out of the use of such electronic methods to submit notices, instructions, directions
or other communications to the Purchase Contract Agent, Collateral Agent, Custodial Agent and Securities Intermediary, including
without limitation the risk of any such entity acting on unauthorized instructions, and the risk of interception and misuse by
third parties. The Company shall use all reasonable efforts to ensure that any such notices, instructions, directions or other
communications transmitted to the Purchase Contract Agent, Collateral Agent, Custodial Agent or Securities Intermediary pursuant
to this Agreement are complete and correct. Any such


 





 




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notices, instructions, directions or other communications
shall be conclusively deemed to be valid instructions from the Company to the Purchase Contract Agent, Collateral Agent, Custodial
Agent or Securities Intermediary, as the case may be, for the purposes of this Agreement.


 


The Purchase Contract Agent shall send to the Transfer
Agent at the following address a copy of any notices in the form of Exhibits D, E, F, G, I or
K it sends or receives:


 


Computershare Trust Company, N.A. Transfer Agent
and Registrar





150 Royall Street





Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 


Whenever a notice or other communication to the Holders is required
to be given under this Agreement, the Company or the Company’s agent shall give such notices and communications to the Holders
and, with respect to any Units registered in the name of the Depositary or the nominee of the Depositary, the Company or the Company’s
agent shall, except as set forth herein, have no obligations to the Beneficial Owners.


 


Facsimile, documents executed, scanned and transmitted
electronically and electronic signatures, including those created or transmitted through a software platform or application, shall
be deemed original signatures for purposes of this Agreement and all other related documents and all matters and agreements related
thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures. The parties
agree that this Agreement or any other related document or any instrument, agreement or document necessary for the consummation
of the transactions contemplated by this Agreement or the other related documents or related hereto or thereto (including, without
limitation, addendums, amendments, notices, instructions, communications with respect to the delivery of securities or the wire
transfer of funds or other communications) (“Executed Documentation”) may be accepted, executed or agreed to
through the use of an electronic signature in accordance with applicable laws, rules and regulations in effect from time to time
applicable to the effectiveness and enforceability of electronic signatures. Any Executed Documentation accepted, executed or agreed
to in conformity with such laws, rules and regulations will be binding on all parties hereto to the same extent as if it were physically
executed and each party hereby consents to the use of any third party electronic signature capture service providers as may be
reasonably chosen by a signatory hereto or thereto. When the Purchase Contract Agent, the Collateral Agent, the Custodial Agent
and the Securities Intermediary acts on any Executed Documentation sent by electronic transmission, the Purchase Contract Agent,
the Collateral Agent, the Custodial Agent and the Securities Intermediary will not be responsible or liable for any losses, costs
or expenses arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding
that such Executed Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such
party sent or intended to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with,
a subsequent written instruction or communication; it being understood and agreed that the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall conclusively presume that Executed Documentation that purports
to have been sent by an authorized officer of a Person has been sent by an authorized officer of


 





 




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such Person. The party providing Executed Documentation
through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic
methods, including, without limitation, the risk of the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and
the Securities Intermediary acting on unauthorized instructions and the risk of interception and misuse by third parties.


 


Section 1.06. Notice to Holders;
Waiver. Where this Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder, at its address as it appears
in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this
Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Purchase Contract Agent, but such filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.


 


In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall
be made with the approval of the Purchase Contract Agent shall constitute a sufficient notification for every purpose hereunder.


 


Notwithstanding the foregoing or any other provision
of this Agreement to the contrary, whenever notice is required to be given with respect to a Unit represented by a Global Certificate,
such notice shall be sufficiently given if given to the Depositary for such Global Certificate (or its designee) pursuant to customary
procedures of such Depositary.


 


Section 1.07. Effect of Headings
and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.


 


Section 1.08. Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Company,
the Purchase Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary, and the Holders from time
to time of the Units, by their acceptance of the same, shall be deemed to have agreed to be bound by the provisions hereof and
to have ratified the agreements of, and the grant of the Pledge hereunder by, the Purchase Contract Agent.


 


Section
1.09. Separability Clause. In case any provision in this Agreement or in the Units shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired
thereby.


 


Section 1.10. Benefits of Agreement.
Nothing contained in this Agreement or in the Units, express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder and, to the extent provided hereby, the Holders, any benefits or any legal or


 





 




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equitable right, remedy or claim under this Agreement.
The Holders from time to time shall be beneficiaries of this Agreement and shall be bound by all of the terms and conditions hereof
and of the Units evidenced by their Certificates by their acceptance of delivery of such Certificates.


 


Section 1.11. Governing Law; Jurisdiction;
Waiver of Trial by Jury . THIS AGREEMENT AND THE UNITS AND THE PURCHASE CONTRACTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS THEREOF TO THE EXTENT THAT A DIFFERENT
LAW WOULD GOVERN AS A RESULT.


 


Each of the parties hereto irrevocably consents and
agrees, for the benefit of the Holders from time to time of the Units and the Purchase Contracts, and the other parties hereto,
that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of
or in connection with this Agreement, the Units or the Purchase Contracts may be brought in the courts of the State of New York
or the courts of the United States, in each case located in the Borough of Manhattan, New York City, New York and hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect
to any action, suit or proceeding for itself in respect of its properties, assets and revenues.


 


Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any
of the aforesaid actions, suits or proceedings arising out of or in connection with this Agreement, the Units or the Purchase Contracts
brought in the courts of the State of New York or the courts of the United States, in each case, located in the Borough of Manhattan,
New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.


 


EACH PARTY HERETO, AND EACH HOLDER OF A UNIT BY
ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, THE
UNITS, THE PURCHASE CONTRACTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.


 


Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day (notwithstanding any other provision of this Agreement or the Units),
Contract Adjustment Payments, deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon),
and other distributions shall not be paid on such date, but Contract Adjustment Payments, deferred Contract Adjustment Payments
(including Compounded Contract Adjustment Payments thereon) and such other distributions shall be paid on the next succeeding Business
Day, with the same force and effect as if made on such scheduled Payment Date; provided that no interest or other amount
shall accrue or be payable by the Company or to any Holder in respect of any such delay.


 





 




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In any case where the Purchase Contract Settlement Date
or any Early Settlement Date or Fundamental Change Early Settlement Date shall not be a Business Day (notwithstanding any other
provision of this Agreement or the Units), Purchase Contracts shall not be performed and Early Settlement or Fundamental Change
Early Settlement shall not be effected on such date, but Purchase Contracts shall be performed or Early Settlement or Fundamental
Change Early Settlement shall be effected, as applicable, on the next succeeding Business Day with the same force and effect as
if made on such Purchase Contract Settlement Date, Early Settlement Date or Fundamental Change Early Settlement Date, as applicable.


 


Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the parties hereto, each of which, when so executed and delivered,
shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.


 


The exchange of copies of this Agreement and of signature
pages by facsimile, electronically or PDF transmission shall constitute effective execution and delivery of this Agreement as to
the parties hereto and may be used in lieu of the original Agreement for all purposes. Signatures of the parties hereto transmitted
by facsimile, electronically or PDF shall be deemed to be their original signatures for all purposes.


 


Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office
for inspection by any Holder or Beneficial Owner.


 


Section 1.15. Appointment of
Financial Institution as Agent for the Company. The Company may appoint a financial institution (which may be the Collateral
Agent, provided that it shall have accepted such appointment) to act as its agent in performing its obligations and in accepting
and enforcing performance of the obligations of the Purchase Contract Agent and the Holders, under this Agreement and the Purchase
Contracts, by giving notice of such appointment in the manner provided in Section 1.05 hereof. Any such appointment shall
not relieve the Company in any way from its obligations hereunder.


 


Section 1.16. No Waiver. No failure
on the part of the Company, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Securities Intermediary
or any of their respective agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Company, the Purchase
Contract Agent, the Collateral Agent, the Custodial Agent, the Securities Intermediary or any of their respective agents of any
right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies provided by law.


 





 




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ARTICLE 2


 


CERTIFICATE FORMS


 


Section 2.01. Forms of Certificates Generally.
The Certificates (including the form of Purchase Contract forming part of each Unit evidenced thereby) shall be in substantially
the form set forth in Exhibit A hereto (in the case of Corporate Units Certificates), Exhibit B hereto (in the case
of Treasury Units Certificates) or Exhibit C hereto (in the case of Cash Settled Units Certificates), with such letters,
numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon
as may be required by the rules of any securities exchange on which the Units are listed or any depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company executing such Certificates, as evidenced by their execution
of the Certificates.


 


The definitive Certificates shall
be produced in any manner as determined by the officers of the Company executing the Units evidenced by such Certificates, consistent
with the provisions of this Agreement, as evidenced by their execution thereof.


 


Every Global Certificate authenticated, executed on
behalf of the Holders and delivered hereunder shall bear a legend substantially in the form set forth in Exhibit A, Exhibit
B and Exhibit C for a Global Certificate.


 


Section 2.02. Form of Purchase
Contract Agent’s Certificate of Authentication. The form of the Purchase Contract Agent’s certificate of authentication
of the Units shall be in substantially the form set forth on the form of the applicable Certificates.


 


ARTICLE 3


 


THE UNITS


 


Section 3.01. Amount; Form and
Denominations. The aggregate number of Units evidenced by Certificates authenticated, executed on behalf of the Holders and
delivered hereunder is limited to 10,430,500, except for Certificates authenticated, executed and delivered upon registration of
transfer of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.04, Section 3.05, Section
3.06, Section 3.09, Section 3.12(a), Section 3.14(a) or Section 8.05.


 


The Certificates shall be issuable only in registered
form and only in denominations of a single Corporate Unit, Treasury Unit or Cash Settled Unit and any integral multiple thereof.


 


Section 3.02. Rights and Obligations
Evidenced by the Certificates. Each Corporate Units Certificate shall evidence the number of Corporate Units specified therein,
with each such Corporate Unit representing (1) the ownership by the Holder thereof of the Pledged Applicable Ownership Interests
in Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case may be, in
respect of such Holder’s Corporate Unit and (2) the rights and obligations of the Holder thereof and the Company under one
Purchase Contract. The Purchase Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder of each
Corporate Unit, to pledge, pursuant to Article 11 hereof, the


 





 




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Applicable Ownership Interest in Convertible Preferred
Stock, or the Applicable Ownership Interest in the Treasury Portfolio, forming a part of such Corporate Unit to the Collateral
Agent, for the benefit of the Company, and to grant to the Collateral Agent, as agent of and for the benefit of the Company, a
security interest in the right, title and interest of such Holder in such Applicable Ownership Interest in Convertible Preferred
Stock or such portion of the Applicable Ownership Interest in the Treasury Portfolio to secure the obligation of the Holder under
each Purchase Contract to purchase shares of Common Stock. To effect such Pledge and grant such security interest, the Purchase
Contract Agent on behalf of the Holders of Corporate Units has, on the date hereof, delivered to the Collateral Agent the Applicable
Ownership Interests in Convertible Preferred Stock.


 


Upon the formation of a Treasury Unit pursuant to Section
3.12(a), each Treasury Units Certificate shall evidence the number of Treasury Units specified therein, with each such Treasury
Unit representing (1) the ownership by the Holder thereof of a 1/10th undivided beneficial ownership interest in one Treasury Security,
subject to the Pledge of such interest by such Holder pursuant to this Agreement, and (2) the rights and obligations of the Holder
thereof and the Company under one Purchase Contract. The Purchase Contract Agent is hereby authorized, as attorney-in-fact for,
and on behalf of, the Holder of each Treasury Unit, to pledge, pursuant to Article 11 hereof, such Holder’s interest
in the Treasury Security forming a part of such Treasury Unit to the Collateral Agent, as agent of and for the benefit of the Company,
and to grant to the Collateral Agent, for the benefit of the Company, a security interest in the right, title and interest of such
Holder in such Treasury Security to secure the obligation of the Holder under each Purchase Contract to purchase shares of Common
Stock.


 


Upon the formation of a Cash Settled Unit pursuant to
Section 3.13(a), each Cash Settled Units Certificate shall evidence the number of Cash Settled Units specified therein,
with each such Cash Settled Unit representing (1) the ownership by the Holder thereof of $100 Cash, subject to the Pledge of such
Cash by such Holder pursuant to this Agreement, and (2) the rights and obligations of the Holder thereof and the Company under
one Purchase Contract. The Purchase Contract Agent is hereby authorized, as attorney-in-fact for, and on behalf of, the Holder
of each Cash Settled Unit, to pledge, pursuant to Article 11 hereof, such Holder’s Cash forming a part of such Cash
Settled Unit to the Collateral Agent, as agent of and for the benefit of the Company, and to grant to the Collateral Agent, for
the benefit of the Company, a security interest in the right, title and interest of such Holder in such Cash to secure the obligation
of the Holder under each Purchase Contract to purchase shares of Common Stock.


 


The Purchase Contracts shall not, prior to the settlement
thereof, entitle the Holder to any of the rights of a holder of shares of Common Stock, including, without limitation, the right
to vote or receive any dividends or other payments or to consent or to receive notice as a shareholder in respect of the meetings
of shareholders or for the election of directors of the Company or for any other matter, or any other rights whatsoever as a shareholder
of the Company.


 


Section 3.03. Execution, Authentication;
Delivery and Dating. Subject to the provisions of Section 3.12(a), Section 3.13(a) and Section 3.14(a)
hereof, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, the Company may deliver
Certificates executed by the Company to the Purchase Contract Agent for authentication, execution on behalf of the Holders and
delivery, together with its Issuer Order for authentication,


 





 




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execution on behalf of the Holders
and delivery of such Certificates, and the Purchase Contract Agent in accordance with such Issuer Order shall authenticate, execute
on behalf of the Holders and deliver such Certificates.


 


The Certificates shall be executed on behalf of the
Company by its Chairman of the Board of Directors, its Chief Executive Officer, its President, its Treasurer, one of its Vice Presidents
or one of its Assistant Treasurers. The signature of any of these officers on the Certificates may be manual, electronic or facsimile.


 


Certificates bearing the manual, electronic or facsimile
signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates.


 


No Purchase Contract evidenced by a Certificate shall be valid
until such Certificate has been executed on behalf of the Holder by the manual or electronic signature of an authorized signatory
of the Purchase Contract Agent, as such Holder’s attorney-in-fact. Such signature by an authorized signatory of the Purchase
Contract Agent shall be conclusive evidence that the Holder of such Certificate has entered into the Purchase Contracts evidenced
by such Certificate.


 


Each Certificate shall be dated the date of its authentication.


 


No Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by an authorized officer of the Purchase Contract Agent by manual or facsimile
signature, and such certificate of authentication upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder.


 


Section 3.04. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company may execute and deliver to the Purchase Contract Agent, and the
Purchase Contract Agent shall, upon receipt of an Issuer Order, authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Certificates, temporary Certificates which are in substantially the form set forth in Exhibit A,
Exhibit B or Exhibit C hereto, as the case may be, with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities
exchange on which the Corporate Units, Treasury Units or Cash Settled Units, as the case may be, are listed, or as may, consistently
herewith, be determined by the officers of the Company executing such Certificates, as evidenced by their execution of the Certificates.


 


If temporary Certificates are issued, the Company will
cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates, the
temporary Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the Corporate
Trust Office, at the expense of the Company and without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Certificates, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall,
upon receipt of an Issuer Order, authenticate, execute on behalf of the


 





 




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Holder, and deliver in exchange therefor, one or more
definitive Certificates of like tenor and denominations and evidencing a like number of Units as the temporary Certificate or Certificates
so surrendered. Until so exchanged, the temporary Certificates shall in all respects evidence the same benefits and the same obligations
with respect to the Units evidenced thereby as definitive Certificates.


 


Section 3.05. Registration;
Registration of Transfer and Exchange. The Purchase Contract Agent shall keep at the Corporate Trust Office a register (the
“Security Register”) in which, subject to such reasonable regulations as are then customary and standard, the
Purchase Contract Agent shall provide for the registration of Certificates and of transfers of Certificates (the Purchase Contract
Agent, in such capacity, the “Security Registrar”). The Security Registrar shall record separately the registration
and transfer of the Certificates evidencing Corporate Units, Treasury Units and Cash Settled Units.


 


Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract
Agent shall, upon receipt of an Issuer Order, authenticate, execute on behalf of the designated transferee or transferees, and
deliver, in the name of the designated transferee or transferees, one or more new Certificates of any authorized denominations,
like tenor, and evidencing a like number of Corporate Units, Treasury Units or Cash Settled Units, as the case may be.


 


At the option of the Holder, Certificates may be exchanged
for other Certificates, of any authorized denominations and evidencing a like number of Corporate Units, Treasury Units or Cash
Settled Units, as the case may be, upon surrender of the Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase
Contract Agent shall, upon receipt of an Issuer Order, authenticate, execute on behalf of the Holder, and deliver the Certificates
which the Holder making the exchange is entitled to receive.


 


All Certificates issued upon any registration of transfer or
exchange of a Certificate shall evidence the ownership of the same number of Corporate Units, Treasury Units or Cash Settled Units,
as the case may be, and be entitled to the same benefits and subject to the same obligations under this Agreement as the Corporate
Units, Treasury Units or Cash Settled Units, as the case may be, evidenced by the Certificate surrendered upon such registration
of transfer or exchange.


 


Every Certificate presented or surrendered for registration
of transfer or exchange shall (if so required by the Purchase Contract Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Purchase Contract Agent duly executed by the Holder thereof
or its attorney duly authorized in writing.


 


No service charge shall be made for any registration
of transfer or exchange of a Certificate, but the Company and the Purchase Contract Agent may require payment from the Holder of
a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer
or exchange of Certificates, other than any exchanges pursuant to Section 3.04, Section 3.06 and Section 8.05
not involving any transfer.


 





 




    29 


     


    

Notwithstanding the foregoing, the Company shall not be obligated
to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated to authenticate,
execute on behalf of the Holder and deliver any Certificate in exchange for any other Certificate presented or surrendered for
registration of transfer or for exchange on or after the Business Day immediately preceding the earliest to occur of any Early
Settlement Date with respect to such Certificate, any Fundamental Change Early Settlement Date with respect to such Certificate,
the Purchase Contract Settlement Date or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such
Holder, the Purchase Contract Agent shall:


 


(a) if the Purchase
Contract Settlement Date, an Early Settlement Date or a Fundamental Change Early Settlement Date with respect to such other Certificate
(or portion thereof) has occurred, deliver the shares of Common Stock issuable in respect of the Purchase Contracts forming a part
of the Units evidenced by such other Certificate (or portion thereof); and


 


(b) if a Termination Event, Early
Settlement, or Fundamental Change Early Settlement shall have occurred prior to the Purchase Contract Settlement Date, Transfer
the Applicable Ownership Interests in Convertible Preferred Stock, the Cash, the Treasury Security or the Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, underlying such Certificate, in each case subject to the applicable conditions
and in accordance with the applicable provisions of Section 3.15(a) and Article 5 hereof.


 


Section 3.06. Book- entry Interests.
The Certificates will be issued in the form of one or more fully registered Global Certificates, to be delivered to the Depositary
or its custodian by, or on behalf of, the Company. The Company hereby designates DTC as the initial Depositary. Such Global Certificates
shall initially be registered on the Security Register in the name of Cede & Co., the nominee of the Depositary, and no Beneficial
Owner will receive a definitive Certificate representing such Beneficial Owner’s interest in such Global Certificate, except
as provided in Section 3.08. The Purchase Contract Agent shall enter into an agreement with the Depositary if so requested
by the Company. Following the issuance of such Global Certificates and unless and until definitive, and fully registered Certificates
have been issued to Beneficial Owners pursuant to Section 3.08:


 


(a)
the provisions of this Section 3.06 shall be in full force and effect;


 


(b) the Company and the Purchase
Contract Agent shall be entitled to deal with the Depositary for all purposes of this Agreement (including, without limitation,
making Contract Adjustment Payments and receiving approvals, votes or consents hereunder) as the Holder of the Units and the sole
holder of the Global Certificates and shall have no obligation to the Beneficial Owners; provided that a Beneficial Owner
may directly enforce against the Company, without any consent, proxy, waiver or involvement of the Depositary of any kind, such
Beneficial Owner’s right to receive a definitive Certificate representing the Units beneficially owned by such Beneficial
Owner, as set forth in Section 3.08;


 





 




    30 


     


    

(c) to the extent that the provisions
of this Section 3.06 conflict with any other provisions of this Agreement, the provisions of this Section 3.06 shall
control; and


 


(d) except as set forth in the proviso
of clause (b) of this Section 3.06 , the rights of the Beneficial Owners shall be exercised only through the Depositary
and shall be limited to those established by law and agreements between such Beneficial Owners and the Depositary or the Depositary
Participants. The Depositary will make book-entry transfers among Depositary Participants and receive and transmit payments of
Contract Adjustment Payments to such Depositary Participants.


 


Transfers of securities evidenced by Global Certificates
shall be made through the facilities of the Depositary, and any cancellation of, or increase or decrease in the number of, such
securities (including the creation of Treasury Units, the creation of Cash Settled Units and the recreation of Corporate Units
pursuant to Section 3.12(a), Section 3.13(a) and Section 3.14(a), respectively) shall be accomplished by making
appropriate annotations on the Schedule of Increases and Decreases set forth in such Global Certificate.


 


Section 3.07. Appointment of
Successor Depositary. If the Depositary elects to discontinue its services as securities depositary with respect to the Units,
the Company may, in its sole discretion, appoint a successor Depositary with respect to the Units.


 


Section 3.08. Definitive Certificates.


 


If:


 


(a) the Depositary notifies the Company
that it is unwilling or unable to continue its services as securities depositary with respect to the Units and no successor Depositary
has been appointed pursuant to Section 3.07 within 90 days after such notice;


 


(b) the Depositary ceases to be a
“clearing agency” registered under Section 17A of the Exchange Act when the Depositary is required to be so registered
to act as the Depositary and so notifies the Company, and no successor Depositary has been appointed pursuant to Section 3.07
within 90 days after such notice;


 


(c) to the extent permitted by the
Depositary, the Company determines in its discretion that the Global Certificates shall be exchangeable for definitive Certificates
and Beneficial Owners elect to withdraw their interests in the Global Certificates; or


 


(d) a Beneficial
Owner seeking to exercise or enforce its rights under the Corporate Units, Treasury Units or Cash Settled Units requests to exchange
such Beneficial Owner’s interest in the Global Certificates for definitive Certificates;


 


then (x) definitive Certificates shall be prepared by the Company
with respect to such Units and delivered to the Purchase Contract Agent and (y) upon surrender of the Global Certificates representing
the Units by the Depositary, accompanied by registration instructions, the Company shall cause definitive Certificates to be delivered
to Beneficial Owners in accordance with instructions provided by the Depositary. The Company and the Purchase Contract Agent shall
not be liable for any delay in delivery of such instructions and may conclusively rely on and shall


 





 




    31 


     


    

be authorized and protected in relying on, such instructions.
Each definitive Certificate so delivered shall evidence Units of the same kind and tenor as the Global Certificate so surrendered
in respect thereof.


 


Section 3.09. Mutilated, Destroyed,
Lost and Stolen Certificates. If any mutilated Certificate is surrendered to the Purchase Contract Agent, the Company shall
execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall, upon receipt of an Issuer Order, authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, a new Certificate, evidencing the same number of Corporate Units,
Treasury Units or Cash Settled Units, as the case may be, and bearing a Certificate number not contemporaneously outstanding.


 


If there shall be (i) delivered to the Company and the Purchase
Contract Agent satisfactory evidence of the destruction, loss or theft of any Certificate, and (ii) furnished to the Company and
the Purchase Contract Agent such security or indemnity satisfactory to the Purchase Contract Agent and the Company to hold each
of them and any agent of any of them harmless against any and all related loss, liability, cost, claim and expense, then, in the
absence of notice to the Company or the Purchase Contract Agent that such Certificate has been acquired by a protected purchaser,
the Company shall execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall, upon receipt of an
Issuer Order, authenticate, execute on behalf of the Holder, and deliver to the Holder, in lieu of any such destroyed, lost or
stolen Certificate, a new Certificate, evidencing the same number of Corporate Units, Treasury Units or Cash Settled Units, as
the case may be, and bearing a Certificate number not contemporaneously outstanding.


 


Notwithstanding the foregoing, the Company shall not
be obligated to execute and deliver to the Purchase Contract Agent, and the Purchase Contract Agent shall not be obligated to authenticate,
execute on behalf of the Holder, and deliver to the Holder, a Certificate on or after the Business Day immediately preceding the
earliest of any Early Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate, any Fundamental Change
Early Settlement Date with respect to such lost, stolen, destroyed or mutilated Certificate, the Purchase Contract Settlement Date
or the Termination Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above
in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Purchase Contract Agent
shall:


 


(a) if the Purchase Contract Settlement
Date, an Early Settlement Date or a Fundamental Change Early Settlement Date with respect to such lost, stolen, destroyed or mutilated
Certificate has occurred, deliver the shares of Common Stock issuable in respect of the Purchase Contracts forming a part of the
Units evidenced by such Certificate; and


 


(b) if a Termination Event, Fundamental
Change Early Settlement or an Early Settlement with respect to such lost, stolen, destroyed or mutilated Certificate shall have
occurred prior to the Purchase Contract Settlement Date, transfer the Applicable Ownership Interests in Convertible Preferred Stock,
the Treasury Security, the Applicable Ownership Interests in the Treasury Portfolio or the Cash, as the case may be, underlying
each Unit evidenced by such Certificate, in each case subject to the applicable conditions and in accordance with the applicable
provisions of Section 3.15(a) and Article 5 hereof.


 





 




    32 


     


    

Upon the issuance of any new Certificate under this Section
3.09 , the Company and the Purchase Contract Agent may require the payment by the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other fees and expenses (including, without limitation,
the fees and expenses of the Purchase Contract Agent and its counsel) connected therewith.


 


Every new Certificate issued pursuant to this Section
3.09 in lieu of any destroyed, lost or stolen Certificate shall constitute an original additional contractual obligation of
the Company and of the Holder in respect of the Units evidenced thereby, whether or not the destroyed, lost or stolen Certificate
(and the Units evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits and be
subject to all the obligations of this Agreement equally and proportionately with any and all other Certificates delivered hereunder.


 


The provisions of this Section 3.09 are exclusive
and shall preclude, to the extent lawful, all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates.


 


Section 3.10. Persons Deemed Owners.
Prior to due presentment of a Certificate for registration of transfer, the Company, the Collateral Agent, and the Purchase Contract
Agent and any agent of the Company, the Collateral Agent or the Purchase Contract Agent, may treat the Person in whose name such
Certificate is registered as the absolute owner of the Units evidenced thereby for purposes of any payment or distribution with
respect to the Applicable Ownership Interests in Convertible Preferred Stock, on the Treasury Security, on the Applicable Ownership
Interests in the Treasury Portfolio or payment of Contract Adjustment Payments (in each case, subject to any Record Date or other
applicable record date) and for purposes of performance of the Purchase Contracts and for all other purposes whatsoever in connection
with such Units (subject to the proviso in Section 3.06(b)), whether or not such payment, distribution, or performance shall
be overdue and notwithstanding any notice to the contrary, and neither the Company nor the Purchase Contract Agent, nor any agent
of the Company or the Purchase Contract Agent, shall be affected by, or incur any liability as a result of, notice to the contrary.


 


Neither the Purchase Contract Agent nor the Securities Registrar
shall have any responsibility or obligation to any Beneficial Owner of Units represented by a Global Certificate or other Person
with respect to the accuracy of the records of the Depositary or its nominee or of any agent member, with respect to any ownership
interest in the Units or with respect to the delivery to any agent member, Beneficial Owner or other Person (other than the Depositary)
of any notice or the payment of any amount, under or with respect to such Units. All notices and communications to be given to
the Holders and all payments to be made to Holders pursuant to the Units and this Agreement shall be given or made only to or upon
the order of the registered holders (which shall be the Depositary or its nominee in the case of a Global Certificate). The rights
of Beneficial Owners of the Units underlying a Global Certificate shall be exercised only through the Depositary subject to its
applicable procedures. The Purchase Contract Agent and the Securities Registrar shall be entitled to conclusively rely and shall
be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any Beneficial
Owners. The Purchase Contract Agent and the Securities Registrar shall be entitled to deal with the Depositary, and any nominee
thereof, that is the registered holder of any Global Certificate for all purposes of this Agreement relating to such Global Certificate
(including the


 





 




    33 


     


    

payment of principal, premium, if any, and interest and the
giving of instructions or directions by or to the Beneficial Owner in any Units underlying such Global Certificate) as the sole
Holder of such Global Certificate and shall have no obligations to the Beneficial Owners thereof (subject to the proviso
in Section 3.06(b)). Neither the Purchase Contract Agent nor the Securities Registrar shall have any responsibility or incur any
liability for any acts or omissions of the Depositary with respect to any Units underlying such Global Certificate, for the records
of the Depositary, including records in respect of beneficial ownership interests in respect of Units underlying such Global Certificate,
for any transactions between the Depositary and any agent member or between or among the Depositary, any such agent member and/or
any Holder or Beneficial Owner of any Units underlying such Global Certificate, or for any transfers of beneficial interests in
any Units underlying such Global Certificate.


 


Notwithstanding the foregoing, with respect to any Global
Certificate, nothing contained herein shall prevent the Company, the Purchase Contract Agent or any agent of the Company or the
Purchase Contract Agent, from giving effect to any written certification, proxy or other authorization furnished by the Depositary
(or its nominee), as a Holder, with respect to such Global Certificate, or impair, as between such Depositary and the related Beneficial
Owner, the operation of customary practices governing the exercise of rights of the Depositary (or its nominee) as Holder of such
Global Certificate. None of the Company, the Purchase Contract Agent or any agent of the Company or the Purchase Contract Agent
will have any responsibility or incur any liability for any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Certificate or maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.


 


Section 3.11. Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on or after the Purchase Contract Settlement Date or in connection
with an Early Settlement or a Fundamental Change Early Settlement or for delivery of the Convertible Preferred Stock underlying
the Applicable Ownership Interests in Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio,
the Cash proceeds of the Treasury Security, as the case may be, after the occurrence of a Termination Event, an Early Settlement
or a Fundamental Change Early Settlement, a Collateral Substitution, or upon the registration of transfer or exchange of a Unit,
shall, if surrendered to any Person other than the Purchase Contract Agent, be delivered to the Purchase Contract Agent along with
appropriate written instructions regarding the cancellation thereof and, if not already cancelled, shall be promptly cancelled
by it. The Company may at any time deliver to the Purchase Contract Agent for cancellation any Certificates previously authenticated,
executed and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Certificates so delivered
shall, upon an Issuer Order, be promptly cancelled by the Purchase Contract Agent. No Certificates shall be authenticated, executed
on behalf of the Holder and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section 3.11,
except as expressly permitted by this Agreement. All cancelled Certificates held by the Purchase Contract Agent shall be disposed
of in accordance with its then customary practices.


 


If the Company or any Affiliate of the Company shall
acquire any Certificate, such acquisition shall not operate as a cancellation of such Certificate unless and until such Certificate
is delivered to the Purchase Contract Agent cancelled or for cancellation.


 





 




    34 


     


    

Section 3.12. Creation of Treasury
Units by Substitution of Treasury Security. (a) Subject to the conditions set forth in this Agreement, and subject to the limitations
on a Collateral Substitution in connection with an Optional Remarketing as set forth under


 


Section 5.02(a)(i) below, a Holder of Corporate Units
may, at any time from and after the date of this Agreement, other than during a Blackout Period, effect a Collateral Substitution
and separate the shares of Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred
Stock in respect of such Corporate Units by substituting for such Holder’s Pledged Applicable Ownership Interests in Convertible
Preferred Stock for which Collateral Substitution is being made, Treasury Securities; provided that Holders may make Collateral
Substitutions only in integral multiples of 10 Corporate Units. To effect such substitution, the Holder must:


 


(i) Transfer to the Collateral
Agent, for credit to the Collateral Account, one Treasury Security for every 10 Corporate Units with respect to which such substitution
is being made; and


 


(ii) Transfer the related Corporate
Units to the Purchase Contract Agent accompanied by a notice to the Purchase Contract Agent, substantially in the form of Exhibit
D hereto, whereupon the Purchase Contract Agent shall promptly provide a direction and instruction to the Collateral Agent
in writing, substantially in the form of Exhibit G hereto.


 


Upon confirmation that the Treasury Securities described in
clause ((i)) above have been credited to the Collateral Account and receipt of the written instruction to the Collateral Agent
described in clause ((ii)) above, the Collateral Agent shall release such Pledged Applicable Ownership Interests in Convertible
Preferred Stock from the Pledge and instruct the Securities Intermediary by a notice, substantially in the form of Exhibit H
hereto, to Transfer the shares of Convertible Preferred Stock underlying such Pledged Applicable Ownership Interests in Convertible
Preferred Stock to the Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. Notwithstanding
anything to the contrary herein, the Securities Intermediary and the Collateral Agent shall take no action to release such Pledged
Applicable Ownership Interests in Convertible Preferred Stock from the Pledge unless and until the direction is provided by the
Purchase Contract Agent substantially in the form of Exhibit G hereto.


 


Upon credit to the Collateral Account of the Treasury
Securities delivered by a Holder of Corporate Units and receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall promptly Transfer the shares of Convertible Preferred Stock underlying the appropriate Pledged Applicable Ownership
Interests in Convertible Preferred Stock to the Purchase Contract Agent for distribution to such Holder, free and clear of the
Pledge created hereby.


 


Upon receipt of the shares of Convertible Preferred
Stock underlying such Pledged Applicable Ownership Interests in Convertible Preferred Stock, the Purchase Contract Agent shall
promptly:


 


(A) cancel
the related Corporate Units;


 





 




    35 


     


    

(B) Transfer such shares of
Convertible Preferred Stock to the Holder (such shares of Convertible Preferred Stock shall constitute Separate Shares of Convertible
Preferred Stock and be tradable as separate securities, independent of the concurrently created Treasury Units) in book-entry form,
to the extent a Global Preferred Share is registered in the name of the Depositary or its nominee; and


 


(C) deliver Treasury Units in
book-entry form, or if applicable, authenticate, execute on behalf of such Holder and deliver Treasury Units in the form of a Treasury
Units Certificate executed by the Company in accordance with Section 3.03 evidencing the same number of Purchase Contracts
as were evidenced by the cancelled Corporate Units.


 


Holders who elect to separate the shares of Convertible
Preferred Stock by substituting Treasury Securities for Applicable Ownership Interests in Convertible Preferred Stock shall be
responsible for any taxes, governmental charges or other fees or expenses (including, without limitation, fees and expenses payable
to the Collateral Agent and counsel), in respect of such Collateral Substitution, and neither the Company nor the Purchase Contract
Agent shall be responsible for any such taxes, governmental charges or other fees or expenses.


 


(b) In the event a Holder making a
Collateral Substitution pursuant to Section 3.12(a) fails to effect a book-entry transfer of the Corporate Units or fails
to deliver Corporate Units Certificates to the Purchase Contract Agent after depositing Treasury Securities with the Collateral
Agent, any distributions on the shares of Convertible Preferred Stock underlying the Applicable Ownership Interests in Convertible
Preferred Stock constituting a part of such Corporate Units, shall be held in the name of the Purchase Contract Agent or its nominee
in trust for the benefit of such Holder, until such Corporate Units are so transferred or the Corporate Units Certificate is so
delivered, as the case may be, or such Holder provides evidence satisfactory to the Company and the Purchase Contract Agent that
such Corporate Units Certificate has been destroyed, lost or stolen, together with satisfactory indemnity or security to the Purchase
Contract Agent and the Company.


 


(c) Except as described in Section
5.02, Section 3.12(a), Section 3.13(a) or in connection with an Early Settlement, a Fundamental Change Early
Settlement or a Termination Event, for so long as the Purchase Contract underlying a Corporate Unit remains in effect, such Corporate
Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder in respect of the Convertible
Preferred Stock and the Purchase Contract comprising such Corporate Units may be acquired, and may be transferred and exchanged,
only as a Corporate Unit.


 


Section 3.13. Creation of Cash
Settled Units by Substitution of Cash. (a) Subject to the conditions set forth in this Agreement, a Holder of Corporate Units
may, at any time from and after the date the Company gives the notice of Final Remarketing as set forth in Section 5.02(b)(ii)
below and other than during a Blackout Period, effect a Collateral Substitution and separate the shares of Convertible Preferred
Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock in respect of such Holder’s Corporate
Units by substituting for such Pledged Applicable Ownership Interests in Convertible Preferred Stock for which Collateral Substitution
is being made, Cash in an aggregate amount


 





 




    36 


     


    

equal to the aggregate number of shares of Convertible
Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock multiplied by $1,000;
provided that Holders may make Collateral Substitutions only in integral multiples of 10 Corporate Units. To effect such
substitution, the Holder must:


 


(i) Transfer to the Collateral
Agent, for credit to the Collateral Account, Cash in an amount equal to the aggregate number of shares of Convertible Preferred
Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock for which such Collateral Substitution
is made multiplied by $1,000; and


 


(ii) Transfer the related Corporate
Units to the Purchase Contract Agent accompanied by a notice to the Purchase Contract Agent, substantially in the form of Exhibit
E hereto, whereupon the Purchase Contract Agent shall promptly provide a direction and instruction to the Collateral Agent
in writing, substantially in the form of Exhibit I hereto.


 


Upon confirmation that the Cash described in clause ((i)) above
has been credited to the Collateral Account and receipt of the written instruction to the Collateral Agent described in clause
((ii)) above, the Collateral Agent shall release such Pledged Applicable Ownership Interests in Convertible Preferred Stock from
the Pledge and instruct the Securities Intermediary by a notice, substantially in the form of Exhibit J hereto, to Transfer
the shares of Convertible Preferred Stock underlying such Pledged Applicable Ownership Interests in Convertible Preferred Stock
to the Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. Notwithstanding anything
to the contrary herein, the Securities Intermediary and the Collateral Agent shall take no action to release such Pledged Applicable
Ownership Interests in Convertible Preferred Stock from the Pledge unless and until the direction is provided by the Purchase Contract
Agent substantially in the form of Exhibit I hereto.


 


Upon credit to the Collateral Account of Cash delivered
by a Holder of Corporate Units and receipt of the related instruction from the Collateral Agent, the Securities Intermediary shall
promptly Transfer the shares of Convertible Preferred Stock underlying the appropriate Pledged Applicable Ownership Interests in
Convertible Preferred Stock to the Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created
hereby.


 


Upon receipt of the shares of Convertible Preferred
Stock underlying such Pledged Applicable Ownership Interests in Convertible Preferred Stock, the Purchase Contract Agent shall
promptly:


 


(A)
cancel the related Corporate Units;


 


(B)
Transfer such shares of Convertible Preferred Stock to the Holder (such shares of Convertible Preferred Stock shall constitute
Separate Shares of Convertible Preferred Stock and be tradable as separate securities, independent of the concurrently created
Cash Settled Units) in book-entry form, to the extent a Global Preferred Share is registered in the name of the Depositary or
its nominee; and


 


(C) deliver Cash Settled Units
in book-entry form, or if applicable, authenticate, execute on behalf of such Holder and deliver Cash Settled Units in the form
of a Cash Settled Units Certificate executed by the Company in accordance


 





 




    37 


     


    

with Section 3.03 evidencing the same number
of Purchase Contracts as were evidenced by the cancelled Corporate Units.


 


Holders who elect to separate the shares of Convertible Preferred
Stock by substituting Cash for Applicable Ownership Interests in Convertible Preferred Stock shall be responsible for any taxes,
governmental charges or other fees or expenses (including, without limitation, fees and expenses payable to the Collateral Agent
and counsel), in respect of such Collateral Substitution, and neither the Company nor the Purchase Contract Agent shall be responsible
for any such taxes, governmental charges or other fees or expenses.


 


(b) In the event a Holder making a
Collateral Substitution pursuant to Section 3.13(a) fails to effect a book-entry transfer of the Corporate Units or fails
to deliver Corporate Units Certificates to the Purchase Contract Agent after depositing Cash with the Collateral Agent, any distributions
on the shares of Convertible Preferred Stock underlying the Applicable Ownership Interests in Convertible Preferred Stock constituting
a part of such Corporate Units, shall be held in the name of the Purchase Contract Agent or its nominee in trust for the benefit
of such Holder, until such Corporate Units are so transferred or the Corporate Units Certificate is so delivered, as the case may
be, or such Holder provides evidence satisfactory to the Company and the Purchase Contract Agent that such Corporate Units Certificate
has been destroyed, lost or stolen, together with satisfactory indemnity or security to the Purchase Contract Agent and the Company.


 


(c) Except as described in Section
5.02, Section 3.12(a), Section 3.13(a) or in connection with an Early Settlement, a Fundamental Change Early
Settlement or a Termination Event, for so long as the Purchase Contract underlying a Corporate Unit remains in effect, such Corporate
Unit shall not be separable into its constituent parts, and the rights and obligations of the Holder in respect of the Convertible
Preferred Stock and the Purchase Contract comprising such Corporate Units may be acquired, and may be transferred and exchanged,
only as a Corporate Unit.


 


Section 3.14. Recreation of Corporate
Units. (a) Subject to the conditions set forth in this Agreement, and subject to the limitations on a Collateral Substitution
in connection with an Optional Remarketing, as set forth in Section 5.02(a)(i) below, a Holder of Treasury Units may effect
a Collateral Substitution and recreate Corporate Units at any time from and after the date of this Agreement, other than during
a Blackout Period; provided that Holders of Treasury Units may only recreate Corporate Units in integral multiples of 10
Treasury Units. To recreate Corporate Units, the Holder must:


 


(i) Transfer to the Collateral
Agent, for credit to the Collateral Account, a number of shares of Convertible Preferred Stock or security entitlements with respect
thereto equal to the number of Corporate Units to be created divided by 10; and


 


(ii) Transfer the related Treasury
Units to the Purchase Contract Agent accompanied by a notice to the Purchase Contract Agent, substantially in the form of Exhibit
D hereto, whereupon the Purchase Contract Agent shall promptly provide a direction and instruction to the Collateral Agent
in writing, substantially in the form of Exhibit K hereto.


 





 




    38 


     


    

Upon confirmation that the shares of Convertible Preferred
Stock described in clause ((i)) above or security entitlements with respect thereto have been credited to the Collateral Account
and receipt of the written instruction from the Purchase Contract Agent described in clause ((ii)) above, the Collateral Agent
shall (i) release the related Treasury Securities from the Pledge and (ii) instruct the Securities Intermediary by a notice, substantially
in the form of Exhibit L hereto, to Transfer the Treasury Securities described above to the Purchase Contract Agent for
distribution to such Holder, free and clear of the Pledge created hereby.


 


The substituted Convertible Preferred Stock will be
pledged to the Company through the Collateral Agent to secure such Holder’s obligation to purchase shares of Common Stock
under the related Purchase Contract.


 


Upon credit to the Collateral Account of shares of Convertible
Preferred Stock or security entitlements with respect thereto delivered by a Holder of Treasury Units and receipt of the related
instruction from the Collateral Agent, the Securities Intermediary shall promptly Transfer the Treasury Securities described above
to the Purchase Contract Agent for distribution to such Holder, free and clear of the Pledge created hereby. Notwithstanding anything
to the contrary herein, the Securities Intermediary and the Collateral Agent shall take no action to release such Treasury Security
from the Pledge unless and until the direction is provided by the Purchase Contract Agent substantially in the form of Exhibit
K hereto.


 


Upon receipt of such Treasury Securities, the Purchase Contract
Agent shall promptly:


 


(A)
cancel the related Treasury Units;


 


(B)
Transfer the Treasury Securities to the Holder; and


 


(C)
deliver Corporate Units in book-entry form or, if applicable, authenticate, execute on behalf of such Holder and deliver Corporate
Units in the form of a Corporate Units Certificate executed by the Company in accordance with Section 3.03 evidencing the
same number of Purchase Contracts as were evidenced by the cancelled Treasury Units.


 


Holders who elect to recreate Corporate Units shall
be responsible for any taxes, governmental charges or other fees or expenses (including, without limitation, fees and expenses
payable to the Collateral Agent and its counsel), in respect of the recreation, and neither the Company nor the Purchase Contract
Agent shall be responsible for any such taxes, governmental charges or other fees or expenses.


 


(b) Except as provided in Section 5.02
or in Section 3.14(a) or in connection with an Early Settlement, a Fundamental Change Early Settlement or a Termination
Event, for so long as the Purchase Contract underlying a Treasury Unit remains in effect, such Treasury Unit shall not be separable
into its constituent parts and the rights and obligations of the Holder of such Treasury Unit in respect of the interest in the
Treasury Security and the Purchase Contract comprising such Treasury Unit may be acquired, and may be transferred and exchanged,
only as a Treasury Unit.


 





 




    39 


     


    

Section 3.15. Transfer of Collateral
Upon Occurrence of Termination Event. (a) Upon the occurrence of a Termination Event, the Company shall notify the Collateral
Agent in writing of the occurrence thereof and request that the Collateral Agent request the Securities Intermediary to release
the Collateral from the Pledge. Upon receipt by the Collateral Agent of such written notice or written notice pursuant to Section
5.05 hereof from the Company that a Termination Event has occurred, the Collateral Agent shall promptly release all Collateral
from the Pledge and shall promptly instruct the Securities Intermediary to Transfer all:


 


(i) shares of Convertible Preferred
Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock or security entitlements with respect thereto
or Pledged Applicable Ownership Interests in the Treasury Portfolio;


 


(ii)
Pledged Treasury Securities;


 


(iii)
Pledged Cash;


 


(iv)
payments by Holders (or the Permitted Investments of such payments) pursuant to Section 5.02 hereof; and


 


(v) Proceeds and all other payments
the Collateral Agent receives in respect of the foregoing,


 


to the Purchase Contract Agent for the benefit of the Holders
for distribution to such Holders, in accordance with their respective interests, free and clear of the Pledge created hereby; provided,
however, if any Holder or Beneficial Owner shall be entitled to receive shares of Convertible Preferred Stock in any non-integral
number, the Purchase Contract Agent shall request, on behalf of such Holder or Beneficial Owner, pursuant to the Series A Certificate
of Designations that the Company shall issue fractional shares of Convertible Preferred Stock, each with a liquidation preference
of $100, or integral multiples thereof, in exchange for whole shares of Convertible Preferred Stock or integral multiples thereof;
and provided further, if any Holder shall be entitled to receive, with respect to its Applicable Ownership Interests in
the Treasury Portfolio or Treasury Securities, any securities having a principal amount at maturity of less than the minimum denominations
thereof, the Purchase Contract Agent shall dispose of such Applicable Ownership Interests in the Treasury Portfolio or Treasury
Securities for Cash and deliver to such Holder Cash in lieu of delivering the Applicable Ownership Interests in the Treasury Portfolio
or Treasury Securities, as the case may be.


 


(b) Notwithstanding anything to the
contrary in Section 3.15(a), if such Termination Event shall result from the Company’s becoming a debtor under the
Bankruptcy Code, and if the Collateral Agent shall for any reason fail promptly to effectuate the release and Transfer of all shares
of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock, Applicable Ownership
Interests in the Treasury Portfolio, Pledged Cash, Pledged Treasury Securities and payments by Holders (or the Permitted Investments
of such payments) pursuant to Section 5.02 and Proceeds and all other payments received by the Collateral Agent in respect
of the foregoing, as the case may be, as provided by Section 3. 15(a), the Purchase Contract Agent shall use its best efforts
to obtain an opinion of a nationally recognized law firm to the effect that, notwithstanding the Company’s being the


 





 




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debtor in such a bankruptcy case, the Collateral Agent will
not be prohibited from releasing or Transferring the Collateral as provided in Section 3.15(a) , and shall deliver or cause
to be delivered such opinion addressed to the Collateral Agent within ten days after the occurrence of such Termination Event,
and if (A) the Purchase Contract Agent shall be unable to obtain such opinion within ten days after the occurrence of such Termination
Event or (B) the Collateral Agent shall continue, after delivery of such opinion, to refuse to effectuate the release and Transfer
of all shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock,
Applicable Ownership Interests in the Treasury Portfolio, Pledged Cash, Pledged Treasury Securities and the payments by Holders
(or the Permitted Investments of such payments) pursuant to Section 5.02 hereof and Proceeds and all other payments received
by the Collateral Agent in respect of the foregoing, as the case may be, as provided in Section 3.15(a), then the Purchase
Contract Agent shall within fifteen days after the occurrence of such Termination Event commence an action or proceeding in the
court having jurisdiction of the Company’s case under the Bankruptcy Code seeking an order requiring the Collateral Agent
to effectuate the release and transfer of all shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests
in Convertible Preferred Stock, Applicable Ownership Interests in the Treasury Portfolio, Pledged Cash, Pledged Treasury Securities
and the payments by Holders (or the Permitted Investments of such payments) pursuant to Section 5.02 hereof and Proceeds
and all other payments received by the Collateral Agent in respect of the foregoing, or as the case may be, as provided by Section
3.15(a).


 


(c) Upon the occurrence of a Termination
Event and the Transfer to the Purchase Contract Agent of the Convertible Preferred Stock underlying Pledged Applicable Ownership
Interests in Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio, the Pledged Cash or the
Pledged Treasury Securities, as the case may be, pursuant to Section 3.15(a), the Purchase Contract Agent shall request
transfer instructions with respect to such Convertible Preferred Stock, Applicable Ownership Interests in the Treasury Portfolio,
Pledged Cash or Pledged Treasury Securities, as the case may be, from each Holder by written request, substantially in the form
of Exhibit F hereto, mailed to such Holder at its address as it appears in the Security Register.


 


(d) Upon book-entry transfer of the
Corporate Units, the Treasury Units or the Cash Settled Units or delivery of a Corporate Units Certificate, Treasury Units Certificate
or Cash Settled Units Certificate to the Purchase Contract Agent with such transfer instructions, the Purchase Contract Agent shall
transfer the shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock,
the Applicable Ownership Interests in the Treasury Portfolio, the applicable Treasury Securities or Pledged Cash, as the case may
be, underlying such Corporate Units, Treasury Units or Cash Settled Units, as the case may be, to such Holder by book-entry transfer,
or other appropriate procedures, in accordance with such instructions and, in the case of the shares of Convertible Preferred Stock
underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock, in accordance with the terms of the Series A
Certificate of Designations. In the event a Holder of Corporate Units, Treasury Units or Cash Settled Units fails to effect such
transfer or delivery, the shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible
Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio, the applicable Treasury Securities or Pledged Cash,
as the case may be, underlying such Corporate Units, Treasury Units or Cash Settled Units, as the case may be, and any


 





 




    41 


     


    

distributions thereon, shall be held in the name of
the Purchase Contract Agent or its nominee in trust for the benefit of such Holder, until the earlier to occur of:


 


(i) the transfer of such Corporate
Units, Treasury Units or Cash Settled Units or surrender of the Corporate Units Certificate, Treasury Units Certificate or Cash
Settled Units Certificate or the receipt by the Company and the Purchase Contract Agent from such Holder of satisfactory evidence
that such Corporate Units Certificate, Treasury Units Certificate or Cash Settled Units Certificate has been destroyed, lost or
stolen, together with satisfactory indemnity or security to the Purchase Contract Agent and the Company; and


 


(ii) the
expiration of the time period specified by the applicable law governing abandoned property in the state in which the Purchase Contract
Agent holds such property.


 


Notwithstanding the foregoing, the Purchase Contract
Agent may opt to deliver to the Company any funds or property held for two years, in which event the Company shall have sole responsibility
for compliance with all applicable escheat laws with respect to all funds or property returned to it pursuant to this sentence.


 


Section 3.16. No Consent to Assumption.
Each Holder of a Unit, by acceptance thereof, shall be deemed expressly to have (a) withheld any consent to the assumption under
Section 365 of the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its trustee, receiver, liquidator or
a person or entity performing similar functions in the event that the Company becomes a debtor under the Bankruptcy Code or subject
to other similar state or Federal law providing for reorganization or liquidation and (b) agreed with the Company, the Purchase
Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary that the transaction contemplated by
the Purchase Contract constitutes a “swap agreement” within the meaning of Section 101 (53B) of the Bankruptcy Code
and that each such Holder shall constitute a “swap participant” within the meaning of Section 101 (53C) of the Bankruptcy
Code.


 


Section 3.17. Substitutions. Whenever
a Holder has the right to substitute Cash or shares of Convertible Preferred Stock underlying Applicable Ownership Interests in
Convertible Preferred Stock, as the case may be, or security entitlements for any of them for financial assets held in the Collateral
Account, such substitution shall not constitute a novation of the security interest created hereby.


 


ARTICLE 4


 


THE CONVERTIBLE PREFERRED STOCK


 


Section 4.01. Payments; Rights to Payments
Preserved. (a) The Collateral Agent shall transfer all income and distributions (other than those described in Section 4.02(a))
received by it on account of the shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible
Preferred Stock (if the Pledged Convertible Preferred Share is in the name of the Collateral Agent), the Applicable Ownership Interests
in the Treasury


 





 




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Portfolio, the Treasury Securities or Permitted Investments
from time to time held in the Collateral Account to the Purchase Contract Agent for distribution to the applicable Holders as provided
in this Agreement and the Purchase Contracts, free and clear of the Pledge created hereby.


 


(b) Any payment on any share of Convertible
Preferred Stock underlying Applicable Ownership Interests in Convertible Preferred Stock or any distribution on any Applicable
Ownership Interests in the Treasury Portfolio (in each case other than those described in Section 4.02(a)), as the case may be,
which is paid on or immediately prior to any Payment Date shall, subject to receipt thereof by the Purchase Contract Agent from
the Company or from the Collateral Agent as provided in Section 4.01(a) above, be paid on the related Payment Date to the
Person in whose name the Corporate Units Certificate (or one or more Predecessor Corporate Units Certificates) of which such Applicable
Ownership Interests in Convertible Preferred Stock or Applicable Ownership Interests in the Treasury Portfolio, as the case may
be, form a part is registered at the close of business on the Record Date for such Payment Date.


 


(c) Each Corporate Units Certificate evidencing
Applicable Ownership Interests in the Treasury Portfolio delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other Corporate Units Certificate shall carry the right to accrued interest which was carried by
Applicable Ownership Interests in the Treasury Portfolio (if any) underlying such other Corporate Units Certificate.


 


(d) In the case of any Corporate Unit
with respect to which (1) Early Settlement of the underlying Purchase Contract is properly effected pursuant to Section 5.06(a)
hereof, (2) Fundamental Change Early Settlement of the underlying Purchase Contract is properly effected pursuant to Section
5.04 hereof or (3) a Collateral Substitution is properly effected pursuant to Section 3.12(a) or Section 3.13(a),
in each case on a date that is after any Record Date and prior to or on the next succeeding Payment Date, distributions on Applicable
Ownership Interests in the Treasury Portfolio (if any) underlying such Corporate Units otherwise payable on such Payment Date shall
be payable on such Payment Date notwithstanding such Early Settlement, Fundamental Change Early Settlement or Collateral Substitution,
and distributions shall, subject to receipt thereof by the Purchase Contract Agent, be payable to the Person in whose name the
Corporate Units Certificate (or one or more Predecessor Corporate Units Certificates) was registered at the close of business on
the Record Date.


 


(e) In the case of any Treasury Unit
with respect to which (1) Early Settlement of the underlying Purchase Contract is properly effected pursuant to Section 5.06(a)
hereof, (2) Fundamental Change Early Settlement of the underlying Purchase Contract is properly effected pursuant to Section
5.04 hereof or (3) a Collateral Substitution is properly effected pursuant to Section 3.14(a), in each case on a date
that is after any Record Date and prior to or on the next succeeding Payment Date, distributions in respect of the Treasury Securities
underlying such Treasury Unit otherwise payable on such Payment Date (if any) shall be payable on such Payment Date notwithstanding
such Early Settlement, Fundamental Change Early Settlement or Collateral Substitution, and such payment or distributions shall,
subject to receipt thereof by the Purchase Contract Agent, be payable to the Person in whose name the Treasury Units Certificate
(or one or more Predecessor Treasury Units Certificates) was registered at the close of business on the Record Date.


 





 




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(f) Except as otherwise expressly
provided in Section 4.01(d) hereof, in the case of any Corporate Unit with respect to which Early Settlement or Fundamental
Change Early Settlement of the component Purchase Contract is properly effected, or with respect to which a Collateral Substitution
has been effected, payments attributable to the shares of Convertible Preferred Stock underlying Applicable Ownership Interests
in Convertible Preferred Stock, if any, or distributions on Applicable Ownership Interests in the Treasury Portfolio, as the case
may be, that would otherwise be payable on or made after the Early Settlement Date, Fundamental Change Early Settlement Date or
the date of the Collateral Substitution, as the case may be, shall not be payable hereunder to the Holder of such Corporate Units;
provided, however, that to the extent that such Holder continues to hold Separate Shares of Convertible Preferred Stock
or Applicable Ownership Interests in the Treasury Portfolio that formerly comprised a part of such Holder’s Corporate Units,
such Holder shall be entitled to receive dividends, if any, on such Separate Shares of Convertible Preferred Stock or distributions
on such Applicable Ownership Interests in the Treasury Portfolio.


 


Section 4.02. Payments Prior to or on
Purchase Contract Settlement Date. (a) Subject to the provisions of Section 5.02, Section 5.04 and Section
5.06(a), and except as provided in Section 4. 02(b) below, if no Termination Event shall have occurred, all payments
received by the Securities Intermediary in respect of (1) the proceeds received in a Successful Remarketing attributable to the
shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock, (2) the
Pledged Applicable Ownership Interests in the Treasury Portfolio and (3) the Pledged Treasury Securities, shall be credited to
the Collateral Account, to be invested in Permitted Investments until the Purchase Contract Settlement Date and transferred to
the Company on the Purchase Contract Settlement Date as provided in Section 5.02 hereof to the extent necessary to satisfy
the Holder’s obligation pursuant to Section 5.01 hereof to pay the Purchase Price to settle the Purchase Contracts.
Any balance remaining in the Collateral Account shall be released from the Pledge and transferred to the Purchase Contract Agent
for the benefit of the applicable Holders for distribution to such Holders in accordance with their respective interests, free
and clear of the Pledge created hereby. The Company shall instruct the Collateral Agent in writing as to the specific Permitted
Investments in which any payments made under this Section 4 .02(a) shall be invested, provided, however, that if
the Company fails to deliver such instructions by 10:30 a.m. (New York City time) on the day such payments are received by the
Securities Intermediary, such payments shall remain uninvested, and provided, further, however, that all Permitted
Investments shall mature on or prior to the Purchase Contract Settlement Date. In no event shall the Collateral Agent or the Securities
Intermediary be liable for the selection of Permitted Investments or for any losses, fees, taxes or other charges arising from
any investment, reinvestment or liquidation of Permitted Investments made hereunder. Neither the Collateral Agent nor the Securities
Intermediary shall have any liability in respect of losses, fees, taxes or other charges incurred based on acting or omitting to
act under this Section 4.02(a) pursuant to any direction of the Company or as a result of the failure of the Company to
provide timely written investment direction. Any interest or other income received on such investment and reinvestment of the funds
shall become part of the Collateral Account and any losses, fees, taxes or other charges incurred on such investment and reinvestment
of the funds shall be debited against the Collateral Account. For the avoidance of doubt, no such losses, fees, taxes or other
charges shall affect the Company’s obligations under Article 5 and Holders’ obligations shall remain subject
to Section 5.02(i). It is agreed and understood that the entity serving as Securities Intermediary may earn fees associated
with the


 





 




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investments outlined above in accordance with the terms
of such investments. In no event shall the Securities Intermediary or the Collateral Agent be deemed an investment manager or adviser
in respect of any selection of investments hereunder.


 


(b) All payments received by the Securities
Intermediary in respect of (1) the Convertible Preferred Stock, (2) the Applicable Ownership Interests in the Treasury Portfolio
and (3) the Treasury Securities or security entitlements with respect thereto, that, in each case, have been released from the
Pledge pursuant hereto shall be transferred to the Purchase Contract Agent for the benefit of the applicable Holders for distribution
to such Holders in accordance with their respective interests and the terms of this Agreement.


 


(c) The Purchase Contract Agent shall have
no obligation to invest or reinvest the funds if deposited with the Purchase Contract Agent after 11:00 a.m. (New York City time)
on such day of deposit. Instructions received after 11:00 a.m. (New York City time) will be treated as if received on the following
Business Day. The Purchase Contract Agent shall have no responsibility for any investment losses resulting from the investment,
reinvestment or liquidation of any investment account. Any interest or other income received on such investment and reinvestment
of any investment account shall become part of the such investment account and any losses incurred on such investment and reinvestment
of such investment account shall be debited against such investment account. If a selection is not made and a written direction
not given to the Purchase Contract Agent, the funds shall remain uninvested with no liability for interest therein. It is agreed
and understood that the entity serving as Purchase Contract Agent may earn fees associated with the investments outlined above
in accordance with the terms of such investments. In no event shall the Purchase Contract Agent be deemed an investment manager
or adviser in respect of any selection of investments hereunder. It is understood and agreed that the Purchase Contract Agent or
its affiliates are permitted to receive additional compensation that could be deemed to be in the Purchase Contracts Agent’s
economic self-interest for (1) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub custodian
with respect to certain of the investments, (2) using affiliates to effect transactions in certain investments and (3) effecting
transactions in investments.


 


Section 4.03. Notice and Voting.
(a) Subject to Section 4.03(b) hereof, the Purchase Contract Agent may exercise, or refrain from exercising, any and all
voting and other consensual rights pertaining to the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests
in Convertible Preferred Stock or any part thereof for any purpose not inconsistent with the terms of this Agreement; provided
that the Purchase Contract Agent shall not exercise or shall not refrain from exercising such right, as the case may be, if, in
the judgment of the Purchase Contract Agent, such action would impair or otherwise have a material adverse effect on the value
of all or any of the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock
(it being understood and agreed that the Purchase Contract Agent shall have no affirmative duty to determine whether in its judgment
such action would impair or otherwise have a material adverse effect on the value of all or any of the Convertible Preferred Stock
underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock); and provided further that the Purchase
Contract Agent shall give the Company and the Collateral Agent at least five Business Days’ prior written notice of the manner
in which it intends to exercise, or its reasons for refraining from exercising, any such right. Upon receipt of any notices and
other communications in respect of any Convertible


 





 




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Preferred Stock underlying Pledged Applicable Ownership Interests
in Convertible Preferred Stock, including either notice of any meeting at which holders of the Convertible Preferred Stock are
entitled to vote or the solicitation of consents, waivers or proxies of holders of the Convertible Preferred Stock, the Collateral
Agent shall send promptly to the Purchase Contract Agent such notice or communication, and as soon as reasonably practicable after
receipt of a written request therefor from the Purchase Contract Agent, to execute and deliver to the Purchase Contract Agent such
proxies and other instruments in respect of such Convertible Preferred Stock underlying Pledged Applicable Ownership Interests
in Convertible Preferred Stock (in commercially reasonable form and substance) as are prepared by the Company and delivered to
the Purchase Contract Agent with respect to the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in
Convertible Preferred Stock.


 


(b) Upon receipt of notice of any
meeting at which holders of Convertible Preferred Stock are entitled to vote or upon any solicitation of consents, waivers or proxies
of holders of Convertible Preferred Stock, the Purchase Contract Agent shall, as soon as practicable thereafter, mail, first class,
postage pre-paid, to the Holders of Corporate Units a notice:


 


(i)  containing
such information as is contained in the notice or solicitation;


 


(ii) stating that each Holder
on the record date set by the Purchase Contract Agent therefor (which, to the extent possible, shall be the same date as the record
date set by the Company for determining the holders of shares of Convertible Preferred Stock entitled to vote) shall be entitled
to instruct the Purchase Contract Agent in writing as to the exercise of the voting rights pertaining to the Convertible Preferred
Stock underlying Applicable Ownership Interests in Convertible Preferred Stock that are a component of their Corporate Units; and


 


(iii)  stating
the manner in which such instructions may be given.


 


Upon the written request of the Holders of Corporate
Units on such record date received by the Purchase Contract Agent at least six days prior to such meeting or the expiration date
of any consent solicitation, the Purchase Contract Agent shall endeavor insofar as practicable to vote or cause to be voted or
to consent with respect to, in accordance with the instructions set forth in such requests, the maximum aggregate number of shares
of Convertible Preferred Stock as to which any particular voting or consenting instructions are received. In the absence of specific
instructions from the Holder of Corporate Units, the Purchase Contract Agent shall abstain from voting or consenting with respect
to the Convertible Preferred Stock underlying Applicable Ownership Interests in Convertible Preferred Stock that are a component
of such Corporate Units. The Company hereby agrees, if applicable, to solicit Holders of Corporate Units to timely instruct the
Purchase Contract Agent in writing as to the exercise of such voting or consenting rights in order to enable the Purchase Contract
Agent to vote or consent with respect to such Convertible Preferred Stock.


 


(c) The Holders of Corporate Units,
the Holders of Cash Settled Units and the Holders of Treasury Units shall, in their capacity as Holders, have no voting rights,
rights to dividends or other distributions or other rights in respect of Common Stock.


 





 




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Section 4.04. Payments to Purchase
Contract Agent. The Securities Intermediary shall use commercially reasonable efforts to deliver any payments required to be
made by it to the Purchase Contract Agent hereunder to the account designated by the Purchase Contract Agent for such purpose not
later than 12:00 p.m. (New York City time) on the Business Day such payment is received by the Securities Intermediary; provided,
however, that if such payment is received by the Securities Intermediary on a day that is not a Business Day or after 11:00
a.m. (New York City time) on a Business Day, then the Securities Intermediary shall use commercially reasonable efforts to deliver
such payment to the Purchase Contract Agent no later than 10:30 a.m. (New York City time) on the next succeeding Business Day.


 


Section 4.05. Payments Held In
Trust. If the Purchase Contract Agent or any Holder shall receive any payments on account of financial assets credited to the
Collateral Account and not released therefrom in accordance with this Agreement, the Purchase Contract Agent or such Holder shall
hold such payments as trustee of an express trust for the benefit of the Company and, upon receipt of an Officer’s Certificate
of the Company so directing, promptly deliver such payments to the Securities Intermediary for credit to the Collateral Account
or to the Company for application to the Obligations of the applicable Holder or Holders, and the Purchase Contract Agent and Holders
shall acquire no right, title or interest in any such payments of principal amounts so received. The Purchase Contract Agent shall
have no liability under this Section 4.05 unless and until it has been notified in writing that such payment was delivered
to it erroneously and shall have no liability for any action taken, suffered or omitted to be taken prior to its receipt of such
notice.


 


ARTICLE 5


 


THE PURCHASE CONTRACTS


 


Section 5.01. Purchase of Shares of Common
Stock. (a) Each Purchase Contract shall obligate the Holder of the related Unit to purchase from the Company, and the Company
to issue, on the Purchase Contract Settlement Date at a price equal to the Stated Amount (the “Purchase Price”),
a number of shares of Common Stock equal to the Settlement Rate, together with Cash, if applicable, in lieu of any fractional share
of Common Stock in accordance with Section 5.07, unless an Early Settlement Date, a Fundamental Change Early Settlement
or a Termination Event with respect to the Units of which such Purchase Contract is a part shall have occurred, subject to Section
5.04.


 


The “Settlement Rate” is determined as follows:


 


(i) if the Applicable Market
Value is less than or equal to the Reference Price, the Settlement Rate shall be 3.8640 shares of Common Stock (such Settlement
Rate, subject to adjustment as provided in Section 5.11, the “Maximum Settlement Rate”); and


 


(ii) if the Applicable Market
Value is greater than the Reference Price, the Settlement Rate shall be a number of shares of Common Stock equal to the Stated
Amount, divided by the Applicable Market Value, rounded to the nearest 1/10,000th of a share.


 





 




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The Maximum Settlement Rate is subject to adjustment
as provided in Section 5.11 and shall be rounded upward or downward to the nearest 1/10,000th of a share.


 


(b) Each Holder and Beneficial Owner of a
Corporate Unit, a Treasury Unit or a Cash Settled Unit, by its acceptance of such Unit:


 


(i) irrevocably authorizes the
Purchase Contract Agent to enter into and perform the related Purchase Contract on its behalf as its attorney-in-fact (including,
without limitation, the execution of Certificates in the name of and on behalf of such Holder);


 


(ii) agrees to be bound by
the terms and provisions of such Unit, including but not limited to the terms and provisions of the Purchase Contract and this
Agreement;


 


(iii) covenants and agrees to
perform its obligations under such Purchase Contract and under this Agreement for so long as such Holder remains a Holder of a
Corporate Unit, a Treasury Unit or a Cash Settled Unit;


 


(iv)
consents to the provisions hereof;


 


(v) irrevocably authorizes the
Purchase Contract Agent to enter into and perform this Agreement on its behalf and in its name as its attorney-in-fact;


 


(vi) consents to, and agrees to
be bound by, the Pledge of such Holder’s right, title and interest in and to the Collateral, including the Applicable Ownership
Interests in Convertible Preferred Stock and the Applicable Ownership Interests in the Treasury Portfolio, the Treasury Securities
or the Cash pursuant to this Agreement, and the delivery of the shares of Convertible Preferred Stock underlying such Applicable
Ownership Interests in Convertible Preferred Stock by the Transfer Agent on behalf of the Purchase Contract Agent to the Collateral
Agent; and


 


(vii) for United States federal
income tax purposes, agrees to (A) treat the acquisition of the Corporate Units as an acquisition of the Applicable Ownership
Interests in Convertible Preferred Stock and Purchase Contracts constituting the Corporate Units, (B) treat such Applicable Ownership
Interests in Convertible Preferred Stock as equity of the Company, (C) allocate, as of the date hereof, 100% of the purchase price
for a Corporate Unit to the Applicable Ownership Interests in Convertible Preferred Stock and 0% to each Purchase Contract, which
will establish each Beneficial Owner’s initial tax basis in each Purchase Contract as $0 and each Beneficial Owner’s
initial tax basis in each Applicable Ownership Interest in Convertible Preferred Stock as $100, and (D) treat the Beneficial Owner
as the owner of the applicable interests in the Collateral, including the Applicable Ownership Interests in Convertible Preferred
Stock, the Applicable Ownership Interests in the Treasury Portfolio, the Treasury Securities or the Cash, as applicable;


 


provided that upon a Termination Event, the
rights of the Holder of such Units under the Purchase Contract may be enforced without regard to any other rights or obligations.


 





 




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(c) Each Holder of a Corporate Unit,
a Treasury Unit or a Cash Settled Unit, by its acceptance thereof, further covenants and agrees that to the extent and in the manner
provided in Section 5.02 hereof, but subject to the terms thereof, on the Purchase Contract Settlement Date, Proceeds of
the Pledged Applicable Ownership Interests in Convertible Preferred Stock, the Pledged Applicable Ownership Interests in the Treasury
Portfolio, the Pledged Treasury Securities or the Pledged Cash, as applicable, equal to the Purchase Price shall be paid by the
Collateral Agent, upon the written direction of the Company, to the Company in satisfaction of such Holder’s obligations
under the Purchase Contract underlying such Unit and such Holder shall acquire no right, title or interest in such Proceeds.


 


(d) Upon registration of transfer
of a Certificate, the transferee shall be bound (without the necessity of any other action on the part of such transferee) by the
terms of this Agreement and the Purchase Contracts underlying such Certificate and the transferor shall be released from the obligations
under this Agreement and the Purchase Contracts underlying the Certificate so transferred. The Company covenants and agrees, and
each Holder of a Certificate, by its acceptance thereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.


 


(e) Promptly after the calculation of the
Settlement Rate and the Applicable Market Value, the Company shall give the Purchase Contract Agent written notice thereof. All
calculations and determinations of the Settlement Rate and the Applicable Market Value and all other calculations and determinations
hereunder and any adjustments to the Reference Price shall be made by the Company or its agent based on their good faith calculations,
and the Purchase Contract Agent shall have no responsibility with respect thereto.


 


(f) If a Market Disruption Event
occurs on any Scheduled Trading Day during the Market Value Averaging Period or any Early Settlement Averaging Period, the Company
shall give the Holders and the Purchase Contract Agent written notice thereof on the calendar day on which such event occurs.


 


Section 5.02. Remarketing; Notices;
Separate Shares of Convertible Preferred Stock; Registration; Payment of Purchase Price.


 


(a) Optional Remarketing. (i)
Unless a Termination Event has occurred, the Company may elect, at its option, to, on one or more occasions as specified herein,
engage the Remarketing Agent(s), pursuant to the terms of the Remarketing Agreement, to remarket the aggregate number of shares
of Convertible Preferred Stock underlying the aggregate Applicable Ownership Interests in Convertible Preferred Stock that are
components of Corporate Units, along with any Separate Shares of Convertible Preferred Stock, the holders of which have elected
to participate in such Remarketing pursuant to Section 5.02(d) below over a period of five consecutive Business Days (each
such period, an “ Optional Remarketing Period”) selected by the Company that falls during the Optional Remarketing
Window.


 


(ii) The Company shall issue a
press release and notify the Purchase Contract Agent and the Custodial Agent in writing and request that the Depositary notify
the Depositary Participants holding Corporate Units, Treasury Units and Separate Shares of Convertible Preferred Stock as to the
dates and procedures to be followed in the


 





 




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Optional Remarketing no later than fifteen (15) calendar
days prior to the first day of an Optional Remarketing Period.


 


(iii) If the Company elects to conduct
an Optional Remarketing, by 11:00 a.m. (New York City time) on the Business Day immediately preceding the first day of an Optional
Remarketing Period, the Purchase Contract Agent shall notify the Remarketing Agent(s) in writing of the aggregate number of shares
of Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock that are a
part of the Corporate Units to be remarketed, and the Custodial Agent shall notify in writing the Remarketing Agent(s) of the aggregate
number of Separate Shares of Convertible Preferred Stock (if any) to be remarketed pursuant to Section 5.02(d) below. Pursuant
to, and subject to the terms of, the Remarketing Agreement, upon receipt of such notices from the Purchase Contract Agent and the
Custodial Agent, the Remarketing Agent(s) will use its reasonable best efforts to remarket such shares of Convertible Preferred
Stock at the applicable Remarketing Price or more.


 


(iv) If the Remarketing Agent(s) is able to
remarket such Convertible Preferred Stock for at least the applicable Remarketing Price in any Optional Remarketing in accordance
with the Remarketing Agreement (a “Successful Optional Remarketing”), the Collateral Agent shall cause the Securities
Intermediary, upon receipt of written instructions from the Company, to transfer to the Remarketing Agent(s) the remarketed Convertible
Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock upon confirmation of deposit
to the Collateral Account of proceeds of such Successful Optional Remarketing attributable to such Convertible Preferred Stock,
and the Custodial Agent shall transfer the remarketed Separate Shares of Convertible Preferred Stock to the Remarketing Agent(s)
upon confirmation of receipt of proceeds of such Successful Optional Remarketing attributable to such Separate Shares of Convertible
Preferred Stock. Settlement shall occur on the Optional Remarketing Settlement Date. Upon deposit in the Collateral Account of
such proceeds attributable to the remarketed Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests
in Convertible Preferred Stock, the Collateral Agent shall, upon receipt of written instructions from the Company, (A) instruct
the Securities Intermediary to apply an amount equal to the Treasury Portfolio Purchase Price to purchase the Treasury Portfolio
from the Quotation Agent (the amount and issue of the U.S. Treasury securities (or principal or interest strips thereof) constituting
the Treasury Portfolio to be determined by the Remarketing Agent(s)), (B) credit to the Collateral Account the Applicable Ownership
Interests in the Treasury Portfolio, and (C) promptly remit any remaining portion of such proceeds to the Purchase Contract Agent
for payment to the Holders of Corporate Units, whereupon the Purchase Contract Agent shall make such payment on the Optional Remarketing
Settlement Date to the Holders whose Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible
Preferred Stock were remarketed pro rata in accordance with their respective interests. With respect to any Separate Shares
of Convertible Preferred Stock remarketed, upon receipt of proceeds of such Successful Optional Remarketing attributable to the
remarketed Separate Shares of Convertible Preferred Stock, the Custodial Agent shall remit such proceeds of such Separate Shares
of Convertible Preferred Stock sold in the


 










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Successful Optional Remarketing received from the Remarketing
Agent(s) to holders of such Separate Shares of Convertible Preferred Stock on the Optional Remarketing Settlement Date.


 


(v) Following the occurrence of a Successful
Optional Remarketing, the Applicable Ownership Interests in the Treasury Portfolio will be substituted as Collateral for the Pledged
Applicable Ownership Interests in Convertible Preferred Stock and will be held by the Collateral Agent in accordance with the terms
hereof to secure the Obligation of each Holder of Corporate Units, and the Holders of Corporate Units and the Collateral Agent
shall have such respective rights, obligations and security interests with respect to the Applicable Ownership Interests in the
Treasury Portfolio as the Holder of Corporate Units and the Collateral Agent had in respect of the Pledged Applicable Ownership
Interests in Convertible Preferred Stock, subject to the Pledge thereof. Any reference in this Agreement or the Certificates to
the Pledged Applicable Ownership Interests in Convertible Preferred Stock shall thereupon be deemed to be a reference to such Applicable
Ownership Interests in the Treasury Portfolio. The Company may cause to be made in any Corporate Units Certificates thereafter
to be issued such change in phraseology and form (but not in substance) as may be appropriate to reflect the substitution of the
Applicable Ownership Interests in the Treasury Portfolio for the Pledged Applicable Ownership Interests in Convertible Preferred
Stock as Collateral.


 


(vi) If, in spite of its reasonable
best efforts, the Remarketing Agent(s) cannot remarket the Convertible Preferred Stock as set forth above during the Optional Remarketing
Period at a price not less than the applicable Remarketing Price or a condition precedent set forth in the Remarketing Agreement
is not fulfilled, the Optional Remarketing will be deemed to have been unsuccessful (an “Unsuccessful Optional Remarketing”).
Promptly after receipt of written notice from the Company of an Unsuccessful Optional Remarketing, the Custodial Agent will return
Separate Shares of Convertible Preferred Stock to the appropriate holders thereof.


 


(vii) If the Company elects to remarket
the Convertible Preferred Stock during the Optional Remarketing Period and a Successful Optional Remarketing has not occurred on
or prior to the last day of the Optional Remarketing Period, the Company shall cause a notice of the Unsuccessful Optional Remarketing
to be published before the open of business on the Business Day immediately following the last date of the Optional Remarketing
Period. This notice shall be validly published by making a timely release to any appropriate news agency, including, without limitation,
Bloomberg Business News and the Dow Jones News Service. The Company shall similarly cause a notice of a Successful Optional Remarketing
to be published before the open of business on the Business Day immediately following the date of such Successful Optional Remarketing,
and the Company shall request the Depositary to notify its participants holding Separate Shares of Convertible Preferred Stock,
if any, of the modified terms established for the Convertible Preferred Stock during the Optional Remarketing on the Business Day
following the date on which the Convertible Preferred Stock was successfully remarketed.


 


 




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(viii) The Company has the right
to elect not to attempt or to postpone any Optional Remarketing that has not concluded in its absolute discretion on any day of
the relevant Optional Remarketing Period.


 


(b) Final Remarketing. (i)
Unless a Termination Event or a Successful Optional Remarketing has occurred, in order to remarket the Convertible Preferred Stock
underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock of any Holders of Corporate Units, the Company
shall engage the Remarketing Agent(s), pursuant to the terms of the Remarketing Agreement, to use its reasonable best efforts to
remarket such Convertible Preferred Stock, along with any Separate Shares of Convertible Preferred Stock, the holders of which
have elected to participate in the Final Remarketing pursuant to Section 5.02(d) below, during the Final Remarketing Period.


 


(ii) The Company shall notify the
Purchase Contract Agent and the Custodial Agent in writing and request that the Depositary notify the Depositary Participants holding
Corporate Units, Treasury Units and Separate Shares of Convertible Preferred Stock of the Final Remarketing no later than January
18, 2024. In such notice, the Company shall set forth the dates of the Final Remarketing Period, the applicable procedures for
holders of Separate Shares of Convertible Preferred Stock to participate in the Final Remarketing, the applicable procedures for
Holders of Corporate Units to create Treasury Units or Cash Settled Units, if applicable, the applicable procedures for Holders
of Treasury Units to recreate Corporate Units, the applicable procedures for Holders of Corporate Units to effect Early Settlement
with respect to their Purchase Contracts and any other applicable procedures, including the procedures that must be followed by
a holder of Corporate Units in the case of an Unsuccessful Final Remarketing if such Holder wishes not to have the Convertible
Preferred Stock underlying its Applicable Ownership Interests in Convertible Preferred Stock automatically delivered to the Company
in satisfaction of such Holder’s obligations under the related Purchase Contracts, as described in Section 5.02(b)(vii)
below.


 


(iii) The Purchase Contract Agent
shall notify the Remarketing Agent(s) in writing, promptly after the close of business on the Business Day immediately preceding
the first day of the Final Remarketing Period, of the aggregate number of shares of Convertible Preferred Stock underlying the
Pledged Applicable Ownership Interests in Convertible Preferred Stock that are to be remarketed, and the Custodial Agent shall
notify in writing the Remarketing Agent(s) of the aggregate number of Separate Shares of Convertible Preferred Stock (if any) to
be remarketed pursuant to Section 5.02(d) below.


 


(iv) The Company may postpone
the Final Remarketing in its absolute discretion on any day prior to the last Business Day of the Final Remarketing Period. The
Company will promptly furnish notice of any such postponement to the Purchase Contract Agent.


 


(v) If the Remarketing Agent(s)
is able to remarket such Convertible Preferred Stock and the Separate Shares of Convertible Preferred Stock (if any) for at least
the applicable Remarketing Price in any Final Remarketing in accordance with the


 





 




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Remarketing Agreement (a “Successful Final
Remarketing”), the Collateral Agent shall, upon receipt of written instructions from the Company, cause the Securities
Intermediary to Transfer to the Remarketing Agent(s) the remarketed Convertible Preferred Stock underlying the Pledged Applicable
Ownership Interests in Convertible Preferred Stock upon confirmation of deposit to the Collateral Account of proceeds of such Successful
Final Remarketing attributable to such Convertible Preferred Stock, and the Custodial Agent shall Transfer the remarketed Separate
Shares of Convertible Preferred Stock to the Remarketing Agent(s) upon confirmation of receipt of proceeds of such Successful Final
Remarketing attributable to such Separate Shares of Convertible Preferred Stock. Settlement shall occur on the Remarketing Settlement
Date. Upon deposit in the Collateral Account of such proceeds, the Collateral Agent shall, on the Purchase Contract Settlement
Date, in consultation with the Purchase Contract Agent and upon the written direction of the Company, instruct the Securities Intermediary
to remit a portion of such proceeds equal to $1,000 multiplied by the aggregate number of such shares of Convertible Preferred
Stock to satisfy in full the Obligations of Holders of Corporate Units to pay the Purchase Price for the shares of Common Stock
under the related Purchase Contracts, and promptly remit the balance of such proceeds to the Purchase Contract Agent for payment
to the Holders of Corporate Units whose Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible
Preferred Stock were remarketed, whereupon the Purchase Contract Agent shall make such payment on the Purchase Contract Settlement
Date pro rata in accordance with their respective interests. With respect to any Separate Shares of Convertible Preferred
Stock remarketed, the Custodial Agent shall remit such proceeds of the Successful Final Remarketing received from the Remarketing
Agent(s) pro rata to holders of such Separate Shares of Convertible Preferred Stock on the Purchase Contract Settlement
Date.


 


(vi)
[Reserved].


 


(vii)
If, in spite of its reasonable best efforts, the Remarketing Agent(s) cannot remarket the Convertible Preferred Stock during the
Final Remarketing Period at a price equal to or greater than the applicable Remarketing Price or a condition precedent set forth
in the Remarketing Agreement is not fulfilled, the Remarketing will be deemed to have been unsuccessful (an “Unsuccessful
Final Remarketing”). The Company shall cause a notice of the Unsuccessful Final Remarketing to be published before the
open of business on the Business Day immediately following the last date of the Final Remarketing Period. This notice shall be
validly published by making a timely release to any appropriate news agency, including, without limitation, Bloomberg Business
News and the Dow Jones News Service.


 


Following an Unsuccessful Final Remarketing, on February
15, 2024, (A) the Company shall pay each Holder all accrued and unpaid Contract Adjustment Payments to, but excluding, the February
15, 2024 Payment Date, and (B) immediately following such payments (to the extent applicable), as of the Purchase Contract Settlement
Date, each Holder of any Pledged Applicable Ownership Interests in Convertible Preferred Stock, unless such Holder has (I) provided
written notice to the Purchase Contract Agent in substantially the form of Exhibit P hereto prior to 5:00 p.m. (New York
City time) on the second Business Day immediately preceding the Purchase


 





 




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Contract Settlement Date of its intention to settle the related
Purchase Contract with separate cash, whereupon the Purchase Contract Agent shall promptly provide a direction and instruction
to the Collateral Agent in writing, substantially in the form of Exhibit Q hereto, (II) surrendered the Certificate evidencing
the Corporate Units (if they are in certificated form) or the related Book-Entry Interests, to the Purchase Contract Agent prior
to 5:00 p.m., New York City time, on the second Business Day immediately preceding the Purchase Contract Settlement Date and (III)
on or prior to the Business Day immediately preceding the Purchase Contract Settlement Date delivered the Purchase Price in Cash
to the Securities Intermediary for deposit to the Collateral Account by certified or cashier’s check or wire transfer in
immediately available funds payable to or upon the order of the Securities Intermediary (which settlement may only be effected
in integral multiples of 10 Corporate Units), shall be deemed to have automatically delivered the shares of Convertible Preferred
Stock underlying such Pledged Applicable Ownership Interests in Convertible Preferred Stock in full satisfaction of such Holder’s
obligation to pay the aggregate Purchase Price for the shares of Common Stock to be issued under the related Purchase Contracts.
Following such automatic delivery, each such Holder’s Obligations, including to pay the Purchase Price for the shares of
Common Stock, will be deemed to be satisfied in full, and the Collateral Agent shall, upon receipt of written instructions from
the Company, cause the Securities Intermediary to release the Convertible Preferred Stock underlying such Pledged Applicable Ownership
Interests in Convertible Preferred Stock from the Collateral Account and shall promptly transfer such shares of Convertible Preferred
Stock to the Company.


 


Upon (x) receipt by the Collateral Agent of the direction and
instruction from the Purchase Contract Agent in substantially the form of Exhibit Q hereto and (y) payment by such Holder
to the Securities Intermediary of the Purchase Price in accordance with the first sentence of the immediately preceding paragraph,
in lieu of the automatic delivery described in such sentence, the Securities Intermediary shall give the Purchase Contract Agent
and the Collateral Agent notice of the receipt of such payment in substantially the form of Exhibit R hereto and the Collateral
Agent shall, and is hereby authorized to, or to cause the Securities Intermediary to (X) deposit the separate cash received from
such Holder to the Collateral Account and, if the Company so requests and the Collateral Agent and Securities Intermediary consent
thereto, invest such separate cash received in Permitted Investments, (Y) promptly release from the Pledge the Convertible Preferred
Stock underlying the Applicable Ownership Interests in Convertible Preferred Stock related to the Corporate Units as to which such
Holder has paid such separate cash and (Z) promptly Transfer all such shares of Convertible Preferred Stock to the Purchase Contract
Agent for distribution to such Holder, in each case, free and clear of the Pledge created hereby, whereupon the Purchase Contract
Agent shall Transfer such shares of Convertible Preferred Stock in accordance with written instructions provided by the Holder
thereof or, if no such instructions are given to the Purchase Contract Agent by the Holder, the Purchase Contract Agent shall hold
such shares of Convertible Preferred Stock in the name of the Purchase Contract Agent or its nominee in trust for the benefit of
such Holder until the expiration of the time period specified in the relevant abandoned property laws of the state where such shares
of Convertible Preferred Stock are held, after which time such shares of Convertible Preferred Stock shall be delivered to the
Company on request of the Company contained in an Officer’s Certificate. On the Purchase Contract Settlement Date, the Collateral
Agent shall, and is hereby authorized to, (A) instruct the Securities Intermediary to remit to the Company the separate cash amount
or such portion of the proceeds of such Permitted Investments as is equal


 





 




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to the aggregate Purchase Price under all Purchase
Contracts in respect of which separate cash has been paid as provided in this Section 5.02(b)(vii), as the case may be,
to the Company, and


 


(B) release any amounts in excess of the aggregate Purchase
Price to the Purchase Contract Agent for distribution to the Holders who have paid such separate cash pro rata in proportion
to the amount paid by such Holders under this Section 5.02(b)(vii), as adjusted to reflect the period of time that each
such Holder’s cash was invested in such Permitted Investments.


 


Following an Unsuccessful Final Remarketing, as of the Purchase
Contract Settlement Date, each Holder of Treasury Units shall be deemed to have elected to apply a portion of the Cash constituting
such Holder’s Pro Rata Portions of the Treasury Unit Collateral equal to the aggregate Purchase Price for the shares of Common
Stock to be issued under the related Purchase Contracts to satisfy such Holder’s obligation to pay such aggregate Purchase
Price in full satisfaction of such Holder’s Obligations under such Purchase Contracts. Following such application, each such
Holder’s Obligations, including to pay the Purchase Price for the shares of Common Stock, will be deemed to be satisfied
in full, and the Collateral Agent shall, upon receipt of written instructions from the Company, cause the Securities Intermediary
to release such Cash from the Collateral Account and shall promptly transfer such Cash to the Company. Thereafter, the Collateral
Agent shall promptly remit the remaining Cash constituting the Holder’s Pro Rata Portions of the Treasury Unit Collateral
in excess of the aggregate Purchase Price for the shares of Common Stock to be issued under such Purchase Contracts to the Purchase
Contract Agent for payment to the Holder of the Treasury Units to which such Pro Rata Portions of the Treasury Unit Collateral
relate.


 


Following an Unsuccessful Final Remarketing, as of the
Purchase Contract Settlement Date, each Holder of Cash Settled Units shall be deemed to have elected to apply the Cash component
of such Holder’s Cash Settled Units to satisfy such Holder’s obligation to pay the aggregate Purchase Price for the
shares of Common Stock to be issued under the related Purchase Contracts in full satisfaction of such Holder’s Obligations
under such Purchase Contracts. Following such application, each such Holder’s Obligations, including to pay the Purchase
Price for the shares of Common Stock, will be deemed to be satisfied in full, and the Collateral Agent shall, upon receipt of written
instructions from the Company, cause the Securities Intermediary to release such Cash from the Collateral Account and shall promptly
transfer such Cash to the Company.


 


(c) In connection with an Optional
Remarketing or the Final Remarketing, the Dividend Rate (as such term is defined in the Series A Certificate of Designations) on
all shares of Convertible Preferred Stock (whether or not remarketed) may be increased by the Company to the Increased Dividend
Rate and dividends thereafter shall be payable when, as and if declared by the Board of Directors quarterly in arrears, commencing
on the February 15, May 15, August 15 or November 15 immediately succeeding the applicable Remarketing Settlement Date. In addition,
pursuant to the terms of the Series A Certificate of Designations, (i) the Conversion Rate on all shares of Convertible Preferred
Stock (whether or not remarketed) may be increased by the Company to the Increased Conversion Rate if the Closing Price on the
pricing date of a Successful Remarketing is less than or equal to the Reference Price and/or (ii) the First Redemption Date may
be changed to the Modified Redemption Date. The Increased Rates shall be fixed rates, subject to adjustment as set forth in this
Agreement and the Series A Certificate of Designations, determined by the Board of Directors after consultation with the Remarketing


 





 




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Agents, as the rate(s) the Convertible Preferred Stock should
bear and the terms the Convertible Preferred Stock should include in order for the proceeds in connection with such Remarketing
to equal (A) in the case of a Final Remarketing, at least $1,000 multiplied by the number of shares of Convertible Preferred
Stock being remarketed and (B) in the case of an Optional Remarketing, at least the sum of (1) 100% of the Treasury Portfolio Purchase
Price and (2) the Separate Shares Purchase Price. Neither the Conversion Rate nor the Dividend Rate (as such term is defined in
the Series A Certificate of Designations) shall be decreased in connection with a Successful Remarketing. Any Modified Redemption
Date shall be after March 22, 2024 and on or prior to March 21, 2025. These modifications shall become effective if the Remarketing
is successful, without the consent of the Holders, upon the Remarketing Settlement Date. If a Successful Remarketing occurs, the
Company will request the Depositary to notify the Depositary Participants holding shares of Convertible Preferred Stock of any
Increased Rate, Modified Redemption Date, Payment Dates and other modified terms for the Convertible Preferred Stock on the Business
Day following the date of the Successful Remarketing.


 


(d) Prior to the close of business
on the second Business Day immediately preceding an Applicable Remarketing Period, holders of Separate Shares of Convertible Preferred
Stock may elect to have their Separate Shares of Convertible Preferred Stock remarketed in such Remarketing in the same manner
as the Convertible Preferred Stock underlying Applicable Ownership Interests in Convertible Preferred Stock by delivering their
Separate Shares of Convertible Preferred Stock along with a notice of this election, substantially in the form of Exhibit M
attached hereto, to the Custodial Agent. After such time, such election shall become an irrevocable election to have such Separate
Shares of Convertible Preferred Stock remarketed in all Remarketings to occur in the Applicable Remarketing Period. The Custodial
Agent shall hold the Separate Shares of Convertible Preferred Stock in an account separate from the collateral account in which
the Convertible Preferred Stock underlying Applicable Ownership Interests in Convertible Preferred Stock shall be held. Holders
electing to have their Separate Shares of Convertible Preferred Stock remarketed shall also have the right to withdraw the election
by written notice to the Collateral Agent, substantially in the form of Exhibit N hereto, at any time prior to the close
of business on the second Business Day immediately preceding the first day of the Applicable Remarketing Period. In the event of
a Successful Remarketing, proceeds from the Remarketing attributable to holders of Separate Shares of Convertible Preferred Stock
that elected to have their Convertible Preferred Stock remarketed shall be remitted by the Remarketing Agent(s) for the benefit
of such holders on the Optional Remarketing Settlement Date (in the case of any Optional Remarketing) or on the Purchase Contract
Settlement Date (in the case of the Final Remarketing).


 


(e) For the avoidance of doubt, the
right of each holder of the Convertible Preferred Stock underlying the aggregate Applicable Ownership Interests in Convertible
Preferred Stock that are components of Corporate Units and the Separate Shares of Convertible Preferred Stock, the holders of which
have elected to participate in any Remarketing, to have such Convertible Preferred Stock remarketed and sold on any Remarketing
Date shall be subject to the conditions that (i)(1) the Remarketing Agent(s) conducts an Optional Remarketing, or (2) in the case
of the Final Remarketing, that no Successful Optional Remarketing has occurred, each pursuant to the terms of this Agreement, (ii)
a Termination Event has not occurred prior to such Remarketing Date, (iii) the Remarketing Agent(s) is able to find a purchaser
or purchasers for such Convertible Preferred Stock at the applicable Remarketing Price or more based on the


 





 




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Increased Rates and Modified Redemption Date, if any,
and (iv) such purchaser or purchasers deliver the purchase price therefor to the Remarketing Agent(s) as and when required.


 


(f) The Company agrees to use its commercially
reasonable efforts to ensure that, if required by applicable law, a Registration Statement, including a prospectus, under the Securities
Act with regard to the full amount of the Convertible Preferred Stock to be remarketed in each Remarketing in each case shall be
effective with the Securities and Exchange Commission in a form that may be used by the Remarketing Agent(s) in connection with
such Remarketing (unless such registration statement is not required under the applicable laws and regulations that are in effect
at that time or unless the Company conducts any Remarketing in accordance with an exemption under the securities laws).


 


(g) Holders whose shares of Convertible
Preferred Stock are remarketed will not be responsible for the payment of any Remarketing Fee.


 


(h) In the case of a Treasury Unit
or a Corporate Unit (if Applicable Ownership Interests in the Treasury Portfolio have replaced the Applicable Ownership Interests
in Convertible Preferred Stock as a component of such Corporate Unit), if the Pledged Treasury Securities or the appropriate Pledged
Applicable Ownership Interests in the Treasury Portfolio held by the Securities Intermediary mature prior to the Purchase Contract
Settlement Date, the principal amount of the Treasury Securities or the appropriate Pledged Applicable Ownership Interests in the
Treasury Portfolio received by the Securities Intermediary shall be placed in the Collateral Account. On the Purchase Contract
Settlement Date, an amount equal to the Purchase Price for all related Purchase Contracts shall be remitted to the Company as payment
of such Holder’s Obligations under such Purchase Contracts without receiving any instructions from the Holder. In the event
the sum of the Proceeds from the related Pledged Treasury Securities or the related Pledged Applicable Ownership Interests in the
Treasury Portfolio is in excess of the aggregate Purchase Price, the Collateral Agent shall cause the Securities Intermediary to
distribute such excess, when received by the Securities Intermediary, to the Purchase Contract Agent for the benefit of the Holder
of the related Treasury Units or Corporate Units, as applicable.


 


(i) The obligations of the Holders to pay
the Purchase Price are non-recourse obligations and, except to the extent satisfied by Early Settlement, Fundamental Change Early
Settlement or settlement with separate cash pursuant to Section 5.02(b)(vii) or terminated upon a Termination Event, are
payable solely out of the proceeds of any Collateral pledged to secure the obligations of the Holders, and in no event will Holders
be liable for any deficiency between the proceeds of the disposition of Collateral and the Purchase Price.


 


(j) The Company shall not be obligated to
issue any shares of Common Stock in respect of a Purchase Contract or deliver any certificates thereof to the Holder of the related
Units unless the Company shall have received, subject to Section 5.02(i), payment for the Common Stock to be purchased thereunder
in the manner herein set forth.


 


Section 5.03. Issuance of Shares
of Common Stock. Unless a Termination Event, an Early Settlement or a Fundamental Change Early Settlement shall have occurred,
on the Purchase Contract Settlement Date, upon receipt of the aggregate Purchase Price payable on all


 





 




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Outstanding Units in accordance with Section 5.02, the
Company shall issue and deposit with the Purchase Contract Agent, for the benefit of the Holders of the Outstanding Units, one
or more certificates representing shares of Common Stock registered in the name of the Purchase Contract Agent (or its nominee)
as custodian for the Holders to which the Holders are entitled hereunder; provided, that, in case such Common Stock is to
be delivered through the facilities of DTC or another Depositary, the Company shall cause its stock transfer agent to deliver beneficial
interests in such Common Stock on behalf of the Purchase Contract Agent through such facilities to the Holders entitled thereto.


 


Subject to the foregoing, upon presentation and surrender
of a Certificate, if in certificated form, to the Purchase Contract Agent on or after the Purchase Contract Settlement Date, Early
Settlement Date or Fundamental Change Early Settlement Date, as the case may be, together with settlement instructions thereon
duly completed and executed, the Holder of such Certificate shall be entitled to receive forthwith in exchange therefor a certificate
representing that number of whole shares of Common Stock which such Holder is entitled to receive pursuant to the provisions of
this Article 5 (after taking into account all Units then held by such Holder), and the Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered in the name of the Holder or the Holder’s designee as specified in
the settlement instructions set forth on the reverse of the Certificate provided by the Holder to the Purchase Contract Agent.
If any shares of Common Stock issued in respect of a Purchase Contract are to be registered in the name of a Person other than
the Person in whose name the Certificate evidencing such Purchase Contract is registered (but excluding any Depositary or nominee
thereof), no such registration shall be made unless and until the Person requesting such registration has paid any transfer and
other taxes (including any applicable stamp taxes) required by reason of such registration in a name other than that of the registered
Holder of the Certificate evidencing such Purchase Contract or has established to the satisfaction of the Company that such tax
either has been paid or is not payable.


 


Section 5.04. Fundamental Change Early Settlement.


 


(a) If a Fundamental Change occurs
prior to the Purchase Contract Settlement Date, then, following the occurrence of a Fundamental Change, each Holder of a Unit,
subject to the conditions described in this Section 5.04, shall have the right (a “Fundamental Change Early Settlement
Right”) to settle (a “Fundamental Change Early Settlement”) its Purchase Contract early on the Fundamental
Change Early Settlement Date at the Settlement Rate determined as if the Applicable Market Value equaled the Stock Price, plus
an additional number of shares of Common Stock (such additional number, the “Make-Whole Shares”), subject to
adjustment under Section 5.11, and receive payment of Cash in lieu of any fraction of a share, as provided in Section
5.07; provided that no Fundamental Change Early Settlement will be permitted pursuant to this Section 5.04(a)
unless, at the time such Fundamental Change Early Settlement is effected, there is an effective Registration Statement with respect
to any shares of Common Stock to be issued and delivered in connection with such Fundamental Change Early Settlement, if such a
Registration Statement is required (in the view of counsel, which need not be in the form of a written opinion, for the Company)
under the Securities Act. If such a Registration Statement is so required, the Company covenants and agrees to use its commercially
reasonable efforts to (x) have in effect a Registration Statement covering the Common Stock and other securities, if any, to be
delivered in respect of the Purchase Contracts being settled and (y)


 





 




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provide a Prospectus in connection therewith, in each case in
a form that may be used in connection with such Fundamental Change Early Settlement (it being understood that if there is a material
business transaction or development that has not yet been publicly disclosed, the Company will not be required to file such Registration
Statement or provide such a Prospectus, and the right to effect Fundamental Change Early Settlement will not be available, until
the Company has publicly disclosed such transaction or development, provided that the Company will use its commercially
reasonable efforts to make such disclosure as soon as it is commercially reasonable to do so).


 


In the event that a Holder seeks to exercise its Fundamental
Change Early Settlement Right and a Registration Statement is required to be effective in connection with the exercise of such
right but no such Registration Statement is then effective, the Holder’s exercise of such right shall be void unless and
until such a Registration Statement shall be effective, but such Holder shall receive consideration calculated as described in
this Section 5.04(a) when such Registration Statement becomes effective; provided that the Fundamental Change Early
Settlement Date shall not be so postponed beyond the Purchase Contract Settlement Date. If, but for the proviso in the immediately
preceding sentence, the Fundamental Change Early Settlement Date would occur on or after the Purchase Contract Settlement Date,
the Company shall deliver to any Holder on the Purchase Contract Settlement Date the applicable number of Make-Whole Shares in
addition to a number of shares of Common Stock equal to the Settlement Rate, determined as if the Applicable Market Value were
equal to the Stock Price.


 


If a Holder elects a Fundamental Change Early Settlement
of some or all of its Purchase Contracts, such Holder shall be entitled to receive, on the Fundamental Change Early Settlement
Date, the aggregate amount of any accrued and unpaid Contract Adjustment Payments (including deferred Contract Adjustment Payments
and Compounded Contract Adjustment Payments thereon), with respect to such Purchase Contracts to, but excluding, the Fundamental
Change Settlement Date (except when the Fundamental Change Early Settlement Date falls after any Record Date and prior to the next
succeeding Payment Date, in which case Contract Adjustment Payments shall be payable to the Person in whose name a Certificate
is registered at the close of business on such Record Date relating to the next succeeding Payment Date), payable in the manner
set forth in Section 5.09(e)(i). The Company shall pay such amount as a credit against the amount otherwise payable by such
Holder to effect such Fundamental Change Early Settlement.


 


The Company shall provide each Holder and the Purchase
Contract Agent with notice of a Fundamental Change within five Business Days after the Effective Date of such Fundamental Change,
which shall specify:


 


(i) the date on which such Fundamental
Change Early Settlement shall occur (such date, the “Fundamental Change Early Settlement Date”) which shall
be at least 10 Business Days after the Effective Date of such Fundamental Change but, subject to the foregoing, no later than the
earlier of (x) 20 Business Days after the Effective Date of such Fundamental Change and (y) one Business Day prior to (i) the first
day of the commencement of an Optional Remarketing Period, or (ii) if the Company has not specified an Optional Remarketing Period
or the Optional Remarketing


 





 




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is not successful, the first day of the commencement
of the Final Remarketing Period or, if the Final Remarketing is not successful, the Purchase Contract Settlement Date;


 


(ii) the date by which Holders
must exercise the Fundamental Change Early Settlement Right;


 


(iii)
the Settlement Rate and number of Make-Whole Shares;


 


(iv)
the amount and kind (per share of Common Stock) of the Cash, securities and other consideration receivable by the Holder upon
Fundamental Change Early Settlement; and


 


(v) the amount of accrued and
unpaid Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments
thereon), if any, that will be paid to Holders exercising the Fundamental Change Early Settlement Right and the method by which
the Company will pay such Contract Adjustment Payments.


 


Notwithstanding the foregoing,
if the Final Remarketing Period begins less than ten Business Days following the occurrence of a Fundamental Change, the notice
will specify the Purchase Contract Settlement Date as the Fundamental Change Early Settlement Date.


 


Corporate Units Holders and Treasury Units Holders may only
effect Fundamental Change Early Settlement pursuant to this Section 5.04(a)5.04(a) in integral multiples of 10 Corporate
Units or Treasury Units, as the case may be. Other than the provisions relating to timing of notice and settlement, which shall
be as set forth above, the provisions of Section 5.01(a) shall apply with respect to a Fundamental Change Early Settlement
pursuant to this Section 5.04(a).


 


In order to exercise the right to effect a Fundamental Change
Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units shall deliver, no later
than the close of business on the second Business Day immediately preceding the Fundamental Change Early Settlement Date, such
Certificate to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed and accompanied by payment (payable to the Company
in immediately available funds) in an amount equal to the aggregate Purchase Price corresponding to the number of Purchase Contracts
with respect to which the Holder has elected to effect Fundamental Change Early Settlement. In the event that Units are held by
or through DTC or another Depositary, the exercise of the right to effect Fundamental Change Early Settlement shall occur in conformity
with the standing arrangements between DTC or such Depositary and the Purchase Contract Agent.


 


Upon receipt of such Certificate and payment of such
funds, the Purchase Contract Agent shall pay the Company from such funds the related Purchase Price pursuant to the terms of the
related Purchase Contracts, the receipt of which payment the Company shall confirm in writing. The Purchase Contract Agent shall
then provide to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto, that all the conditions
necessary for a Fundamental Change Early Settlement by such Holder have been satisfied pursuant to which the Purchase





 




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Contract Agent has received from such Holder, and paid
to the Company as confirmed in writing by the Company, the related Purchase Price.


 


Upon receipt by the Collateral Agent of the written
notice from the Purchase Contract Agent set forth in the immediately preceding paragraph, the Collateral Agent shall release from
the Pledge,


 


(1) the Convertible Preferred Stock underlying the Pledged
Applicable Ownership Interests in Convertible Preferred Stock or the Pledged Applicable Ownership Interests in the Treasury Portfolio
or (2) the applicable Treasury Securities corresponding to the number of Purchase Contracts as to which such Holder of Treasury
Units has elected to effect a Fundamental Change Early Settlement, and shall instruct the Securities Intermediary to Transfer all
such Pledged Applicable Ownership Interests in the Treasury Portfolio or Convertible Preferred Stock underlying Pledged Applicable
Ownership Interests in Convertible Preferred Stock or applicable Proceeds of the Treasury Securities, as the case may be, to the
Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created hereby.


 


If a Holder properly effects an effective Fundamental
Change Early Settlement in accordance with the provisions of this Section 5.04(a)5.04(a), the Company will deliver (or will
cause and instruct the Collateral Agent in writing to deliver) to the Holder on the Fundamental Change Early Settlement Date for
each Purchase Contract with respect to which such Holder has elected Fundamental Change Early Settlement:


 


(i) a number of shares of Common
Stock (or Exchange Property Units, if applicable) equal to the Settlement Rate determined as if the Applicable Market Value equaled
the Stock Price plus the Make-Whole Shares, if any;


 


(ii) the shares of Convertible Preferred
Stock, the Applicable Ownership Interests in the Treasury Portfolio or applicable Proceeds of the Treasury Securities underlying
the Corporate Units or Treasury Units, as the case may be, with respect to which the Holder is effecting a Fundamental Change Early
Settlement, free and clear of the Pledge created hereby; and


 


(iii) if so required under the
Securities Act, a Prospectus as contemplated by this Section 5.04(a).


 


For the avoidance of doubt, any accrued and unpaid
Contract Adjustment Payments (including any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon)
with respect to such Purchase Contract to, but excluding, the Fundamental Change Early Settlement Date shall be due and payable
by the Company on the Fundamental Change Early Settlement Date for such Purchase Contract, subject to Section 5.09(e)(i).


 


The Corporate Units or the Treasury Units of the Holders
who do not elect Fundamental Change Early Settlement in accordance with the foregoing will continue to remain outstanding and be
subject to settlement on the Purchase Contract Settlement Date in accordance with the terms hereof.


 


(b) The number of Make-Whole Shares per Purchase
Contract applicable to Fundamental Change Early Settlement shall be determined by reference to the table below, based


 





 




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on the date on which the Fundamental Change occurs
or becomes effective (the “Effective Date”) and the Stock Price in the such Fundamental Change. The “Stock
Price” shall be:


 


(i) in the
case of a Fundamental Change described in clause (i) of the definition thereof where all holders of the Common Stock receive
only Cash in the Fundamental Change, the Cash amount paid per share of the Common Stock; and


 


(ii) in all other cases, the average
of the Closing Prices of the Common Stock for the 10 consecutive Trading Days immediately prior to but not including the Effective
Date.


 


The Stock Prices set forth in the first row of the
table (i.e., the column headers) shall be adjusted upon the occurrence of any event requiring an anti-dilution adjustment to the
Maximum Settlement Rate pursuant to Section 5.11 in a manner inversely proportional to the adjustments to the Maximum Settlement
Rate. Each of the Make-Whole Share amounts in the table will be adjusted upon the occurrence of events requiring anti -dilution
adjustments to the Maximum Settlement Rate pursuant to Section 5.11 in the same manner and at the same time as the Maximum
Settlement Rate as set forth in Section 5.11.


 


Stock Price


 


	Effective Date	$10.00	$15.00	$20.00	$22.00	$24.00	$25.88	$28.00	$30.00	$31.70	$34.00	$36.00	$38.00	$40.00	$45.00	$50.00	$65.00	$80.00
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	March 11, 2021	1.6214	0.8158	0.3461	0.2092	0.0933	0.0000	0.2026	0.3683	0.4935	0.4311	0.3844	0.3436	0.3080	0.2364	0.1832	0.0843	0.0292
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	February 15, 2022	1.1313	0.5596	0.1820	0.0639	0.0000	0.0000	0.0890	0.2617	0.3924	0.3371	0.2963	0.2614	0.2314	0.1732	0.1321	0.0606	0.0222
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	February 15, 2023	0.5869	0.3063	0.0529	0.0000	0.0000	0.0000	0.0000	0.1567	0.2872	0.2333	0.1953	0.1645	0.1396	0.0965	0.0703	0.0319	0.0122
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	February 15, 2024	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 


 


The actual Stock Price and Effective Date applicable
to a Fundamental Change may not be set forth on the table, in which case:


 


(i) if the actual Stock Price
is between two Stock Prices on the table or the actual Effective Date is between two Effective Dates on the table, the amount of
Make-Whole Shares shall be determined by a straight-line interpolation between the Make-Whole Share amounts set forth for the two
Stock Prices and the two Effective Dates on the table based on a 365-day year, as applicable;


 


(ii) if the Stock Price exceeds
$80.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the table above), then the Make-Whole
Share amount shall be zero; and


 


(iii) if the Stock Price is
less than $10.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the table above) (the “Minimum
Stock Price”), then the Make-Whole Share amount shall be determined as if the Stock Price equaled the Minimum Stock Price,
using straight-line interpolation, as described above, if the actual Effective Date is between two Effective Dates on the table.


 


Notwithstanding the foregoing, in no event will
the total number of shares of Common Stock issuable upon settlement of a Purchase Contract exceed 5.4854 shares per Purchase Contract


 





 




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(subject to adjustment in the same manner and at the same time
as the Maximum Settlement Rate as set forth in Section 5.11).


 


(c) All calculations and determinations
pursuant to this Article 5 shall be made by the Company or its agent, and the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent and the Securities Intermediary shall have no responsibility for making, verifying or confirming such calculations
or determinations or otherwise with respect to such calculations or determinations under this Agreement or otherwise, and may conclusively
presume that such calculations and determinations are correct and conform to the requirements of this Agreement.


 


Section 5.05. Termination Event;
Notice. The Purchase Contracts and all obligations and rights of the Company and the Holders thereunder, including, without
limitation, the rights of the Holders to receive and the obligation of the Company to pay any Contract Adjustment Payments (including
any deferred Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon), and the rights and obligations
of Holders to purchase Common Stock, shall immediately and automatically terminate, without the necessity of any notice or action
by any Holder, the Purchase Contract Agent or the Company, if, prior to or on the Purchase Contract Settlement Date, a Termination
Event shall have occurred.


 


Upon and after the occurrence of a Termination Event,
the Units shall thereafter represent the right to receive the shares of Convertible Preferred Stock underlying the Applicable Ownership
Interests in Convertible Preferred Stock, the Treasury Securities, the Cash or the Applicable Ownership Interests in the Treasury
Portfolio, as the case may be, forming part of such Units, in accordance with the provisions of Section 3.15(a) hereof.
Upon the occurrence of a Termination Event, (i) the Company shall promptly but in no event later than two Business Days thereafter
give written notice to the Purchase Contract Agent, the Collateral Agent and the Holders, at their addresses as they appear in
the Security Register and (ii) the Collateral Agent shall, in accordance with Section 3.15(a) hereof, release the shares
of Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock or the Applicable
Ownership Interests in the Treasury Portfolio forming a part of each Corporate Unit, the Pro Rata Portion of the Treasury Unit
Collateral forming a part of each Treasury Unit or the Cash forming a part of each Cash Settled Unit, as the case may be, from
the Pledge.


 


Section 5.06. Early Settlement
.. (a) Subject to and upon compliance with the provisions of this Section 5.06(a), at the option of the Holder thereof, at
any time prior to the close of business on the Scheduled Trading Day immediately preceding the first day of the Market Value Averaging
Period, other than during a Blackout Period, Purchase Contracts underlying Units may be settled early (“Early Settlement”);
provided that no Early Settlement will be permitted pursuant to this Section 5.06(a) unless, at the time such Early
Settlement is effected, there is an effective Registration Statement with respect to the shares of Common Stock and other securities,
if any, to be issued and delivered in connection with such Early Settlement, if such a Registration Statement is required (in the
view of counsel, which need not be in the form of a written opinion, for the Company) under the Securities Act. If such a Registration
Statement is so required, the Company covenants and agrees to use its commercially reasonable efforts to (i) have in effect a Registration
Statement covering those shares of Common Stock and other securities, if any, to be delivered in respect of the Purchase Contracts
being settled and (ii)


 





 




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provide a Prospectus in connection therewith, in each
case in a form that may be used in connection with such Early Settlement (it being understood that if there is a material business
transaction or development that has not yet been publicly disclosed, the Company will not be required to file such Registration
Statement or provide such a Prospectus, and the right to effect Early Settlement will not be available, until the Company has publicly
disclosed such transaction or development, provided that the Company will use its commercially reasonable efforts to make
such disclosure as soon as it is commercially reasonable to do so).


 


(b) In order to exercise the right
to effect Early Settlement with respect to any Purchase Contracts, the Holder of the Certificate evidencing Units (in the case
of Certificates in definitive certificated form) shall deliver, at any time prior to the close of business on the Scheduled Trading
Day immediately preceding the first day of the Market Value Averaging Period, other than during a Blackout Period, such Certificate
to the Purchase Contract Agent at the Corporate Trust Office duly endorsed for transfer to the Company or in blank with the form
of Election to Settle Early on the reverse thereof duly completed and accompanied by payment (payable to the Company in Cash in
immediately available funds) in an amount (the “Early Settlement Amount”) equal to the sum of:


 


(i) the aggregate Purchase Price
for the number of Purchase Contracts with respect to which the Holder has elected to effect Early Settlement, plus,


 


(ii) if the Early Settlement Date
with respect to any Purchase Contracts occurs during the period from the close of business on any Record Date to the open of business
on the related Payment Date, an amount equal to the Contract Adjustment Payments payable on such Payment Date with respect to such
Purchase Contracts, unless the Company has elected to defer the Contract Adjustment Payments payable on such Payment Date.


 


In the case of Book-Entry Interests, each Beneficial
Owner electing Early Settlement must deliver the Early Settlement Amount to the Purchase Contract Agent along with a facsimile
of the Election to Settle Early form duly completed, make book-entry transfer of such Book-Entry Interests and comply with the
applicable procedures of the Depositary by the applicable time set forth above in this Section 5.06(a). In addition, so
long as the Units are evidenced by one or more Global Certificates deposited with the Depositary, procedures for Early Settlement
will also be governed by standing arrangements between the Depositary and the Purchase Contract Agent.


 


Except as provided in Section 5.09(d), no payment
shall be made upon Early Settlement of any Purchase Contract on account of any Contract Adjustment Payments (other than deferred
Contract Adjustment Payments and any Compounded Contract Adjustment Payments thereon) accrued on such Purchase Contract or on account
of any dividends on the Common Stock issued upon such Early Settlement. If the foregoing requirements are first satisfied with
respect to Purchase Contracts underlying any Units at or prior to the close of business on a Business Day, such day shall be the
“Early Settlement Date” with respect to such Units and if such requirements are first satisfied after the close
of business on a Business Day or on a day that is not a Business Day, the Early Settlement Date with respect to such Units shall
be the next succeeding Business Day.


 





 




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Upon the receipt of (i) such Certificate, (ii) a duly
completed Election to Settle Early form and (iii) the Early Settlement Amount from the Holder, the Purchase Contract Agent shall
pay to the Company such Early Settlement Amount, the receipt of which payment the Company shall confirm in writing. The Purchase
Contract Agent shall then provide to the Collateral Agent a notice in writing, substantially in the form of Exhibit O hereto,
that all the conditions necessary for an Early Settlement by a Holder have been satisfied pursuant to which the Purchase Contract
Agent has received from such Holder, and paid to the Company as confirmed in writing by the Company, the related Purchase Price.


 


Upon receipt by the Collateral Agent of the written notice from
the Purchase Contract Agent set forth in the preceding paragraph, within two Business Days following the Early Settlement Date,
the Collateral Agent shall release from the Pledge, (1) in the case of a Holder of Corporate Units, the shares of Convertible Preferred
Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock, or the Pledged Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, relating to the Purchase Contracts to which Early Settlement is effected,
or (2) in the case of a Holder of Treasury Units, the Proceeds of the applicable Pro Rata Portions of the Treasury Securities corresponding
to the number of Purchase Contracts as to which such Holder has elected to effect Early Settlement, and shall instruct the Securities
Intermediary to Transfer all such Pledged Applicable Ownership Interests in the Treasury Portfolio or shares of Convertible Preferred
Stock underlying such Pledged Applicable Ownership Interests in Convertible Preferred Stock or Proceeds of the Treasury Securities,
as the case may be, to the Purchase Contract Agent for distribution to such Holder, in each case free and clear of the Pledge created
hereby.


 


Holders of Corporate Units and
Treasury Units may only effect Early Settlement pursuant to this Section 5.06(a) in integral multiples of 10 Corporate Units
or 10 Treasury Units, as the case may be.


 


Upon Early Settlement of the Purchase Contracts, the
rights of the Holders to receive and the obligation of the Company to pay any Contract Adjustment Payments (including any deferred
Contract Adjustment Payments and Compounded Contract Adjustment Payments thereon) with respect to such Purchase Contracts shall
immediately and automatically terminate, except as provided in Section 5.09(d).


 


(c) Upon Early Settlement of Purchase
Contracts by a Holder of the related Units, the Company shall issue, and the Holder shall be entitled to receive, a number of shares
of Common Stock equal to 85% of the Settlement Rate calculated as set forth in Section 5.01(a) for each Purchase Contract
as to which Early Settlement is effected, as if the Applicable Market Value for such purpose were equal to the average of the Daily
VWAPs of the Common Stock during the Early Settlement Averaging Period (subject to Section 5.12).


 


(d) No later than the second Business
Day after the last Trading Day of the Early Settlement Averaging Period, the Company shall cause the shares of Common Stock issuable
upon Early Settlement of Purchase Contracts to be issued and delivered, accompanied with a payment in respect of the aggregate
deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon), if any, through the Payment
Date immediately preceding such Early Settlement Date, payable as set forth in Section 5.09(e)(i).


 





 




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(e) Upon Early Settlement of any Purchase
Contracts, and subject to receipt of shares of Common Stock from the Company and the Convertible Preferred Stock, the Applicable
Ownership Interests in the Treasury Portfolio or the applicable Proceeds of the Treasury Securities, as the case may be, from the
Securities Intermediary, as applicable, the Purchase Contract Agent shall, in accordance with the instructions provided by the
Holder thereof on the applicable form of Election to Settle Early on the reverse of the Certificate evidencing the related Units:


 


(i) transfer to the Holder the
Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio or the applicable Proceeds of the Treasury
Securities related to such Units, as the case may be,


 


(ii) deliver to the Holder a certificate
or certificates for the full number of shares of Common Stock issuable upon such Early Settlement, and


 


(iii) if so required under the
Securities Act, deliver a Prospectus for the shares of Common Stock issuable upon such Early Settlement as contemplated by Section
5.06(a).


 


(f) In the event that Early Settlement
is effected with respect to Purchase Contracts underlying less than all the Units evidenced by a Certificate, upon such Early Settlement
the Company shall execute and the Purchase Contract Agent shall execute on behalf of the Holder, authenticate and deliver to the
Holder thereof, at the expense of the Company, a Certificate evidencing the Units as to which Early Settlement was not effected.


 


Section 5.07. No Fractional Shares
.. No fractional shares or scrip representing fractional shares of Common Stock shall be issued or delivered upon settlement on
the Purchase Contract Settlement Date, or upon Early Settlement or Fundamental Change Early Settlement of any Purchase Contracts.
Instead of any fractional share of Common Stock that would otherwise be deliverable upon settlement of any Purchase Contracts,
the Company, through the Purchase Contract Agent, shall make a Cash payment in respect of such fractional interest in an amount
equal to the percentage of a whole share represented by such fractional share multiplied by the Closing Price of the Common
Stock on the Trading Day immediately preceding the Purchase Contract Settlement Date (or (x) in the case of any Early Settlement,
the Closing Price of the Common Stock on the Trading Day immediately preceding the relevant date for delivery of the shares of
Common Stock issuable upon such Early Settlement and (y) in the case of a Fundamental Change Early Settlement, the Closing Price
of the Common Stock on the Trading Day immediately preceding the relevant Fundamental Change Early Settlement Date). If, however,
a Holder surrenders for settlement more than one Purchase Contract on the same date, then the number of full shares of Common Stock
issuable pursuant to such Purchase Contracts shall be computed based upon the aggregate number of Purchase Contracts surrendered
on such date, or if the Corporate Units are held in global book-entry form, based on such other aggregate number of Purchase Contracts
being surrendered by the Holder on the same date as the Depositary may otherwise require.


 


Section 5.08. Charges and Taxes.
The Company will pay all stock transfer and similar taxes attributable to the initial issuance and delivery of the shares of Common
Stock pursuant to


 





 




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the Purchase Contracts; provided, however, that
the Company shall not be required to pay any such tax or taxes that may be payable in respect of any exchange of or substitution
for a Certificate evidencing a Unit or any issuance of a share of Common Stock in a name other than that of the registered Holder
of a Certificate surrendered in respect of the Units evidenced thereby, other than in the name of the Purchase Contract Agent,
as custodian for such Holder, and the Company shall not be required to issue or deliver such share certificates or Certificates
unless or until the Person or Persons requesting the transfer or issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such tax has been paid.


 


Section 5.09. Contract Adjustment Payments.
(a) Subject to Section 5.09(d), the Company shall pay, on each Payment Date, the Contract Adjustment Payments payable in
respect of each Purchase Contract for the period from and including the immediately preceding Payment Date on which Contract Adjustment
Payments were paid (or if none, March 11, 2021) to but excluding such Payment Date to the Person in whose name a Certificate is
registered at the close of business on the Record Date relating to such Payment Date. Contract Adjustment Payments shall be payable
in cash, by delivery of shares of Common Stock or through any combination of cash and shares of Common Stock, as set forth in Section
5 .09(e)(i) . Contract Adjustment Payments on Global Certificates payable in cash shall be made by wire transfer of immediately
available funds to the Depositary on or prior to 10:00 a.m. New York City time on the relevant Payment Date. If the book-entry
system for the Units has been terminated, Contract Adjustment Payments payable in cash shall be payable at the designated corporate
trust office of the Purchase Contract Agent in the contiguous United States maintained for that purpose on or prior to 10:00 a.m.
New York City time on the relevant Payment Date or, at the option of the Company, by check mailed to the address of the Person
entitled thereto at such Person’s address as it appears on the Security Register as of the Record Date, or by wire transfer
to the account designated by such Person by a prior written notice to the Purchase Contract Agent, given at least ten calendar
days prior to the Payment Date. Contract Adjustment Payments payable for any period will be computed (x) for any full quarterly
period on the basis of a 360-day year of twelve 30-day months and (y) for any period shorter than a full quarterly period, on the
basis of a 30-day month and, for any period less than a month, on the basis of the actual number of days elapsed in a 30-day month.
The Contract Adjustment Payments will accrue from March 11, 2021.


 


(b) Upon the occurrence of a Termination
Event, the Company’s obligation to pay future Contract Adjustment Payments and any deferred Contract Adjustment Payments
(including Compounded Contract Adjustment Payments thereon) shall cease.


 


(c) Each Certificate delivered under
this Agreement upon registration of transfer of or in exchange for or in lieu of (including as a result of a Collateral Substitution
or the recreation of Corporate Units) any other Certificate shall carry the right to accrued and unpaid Contract Adjustment Payments
(including Compounded Contract Adjustment Payments thereon), which right was carried by the Purchase Contracts underlying such
other Certificates.


 


(d) In the case of any Unit with
respect to which Early Settlement or Fundamental Change Early Settlement of the underlying Purchase Contract (if applicable) is
effected on a date that is after any Record Date and on or prior to the open of business on the


 





 




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related Payment Date, Contract Adjustment Payments and deferred
Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) otherwise payable on such Payment Date
shall be payable on such Payment Date notwithstanding such Early Settlement or Fundamental Change Early Settlement, and such Contract
Adjustment Payments and deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) shall
be paid to the Person in whose name the Certificate evidencing such Unit is registered at the close of business on such Record
Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Unit with respect to which
Early Settlement of the underlying Purchase Contract is effected, Contract Adjustment Payments that would otherwise have accrued
after the most recent Payment Date with respect to such Purchase Contract shall not be payable.


 


(e) (i) Subject to the limitations
described below, the Company may elect to pay any Contract Adjustment Payment (including Compounded Contract Adjustment Payments
thereon or any portion of any Contract Adjustment Payment), whether or not for a current Payment Date or in respect of any prior
Payment Date, as determined in its sole discretion:


 


(A)
in cash;


 


(B)
by delivery of shares of Common Stock; or


 


(C)
through any combination of cash and shares of Common Stock.


 


(ii) Each Contract Adjustment Payment
shall be made in cash, except to the extent the Company timely elects, or has previously elected as set forth below, to make all
or any portion of such Contract Adjustment Payment in shares of Common Stock. To the extent the Company does not elect to defer
such Contract Adjustment Payment, unless the Company has previously elected a Contract Adjustment Payment Method, the Company shall
give notice to Holders of any election with respect to any particular Contract Adjustment Payment and the portion of such Contract
Adjustment Payment that will be made in cash and the portion that will be made in Common Stock no later than eight Scheduled Trading
Days prior to the Payment Date for such Contract Adjustment Payment.


 


(iii) Any shares of Common Stock
issued in payment or partial payment of a Contract Adjustment Payment shall be valued for such purpose at the applicable Five-Day
Average Price, multiplied by 97%.


 


(iv) Without the consent of any
holders of Purchase Contracts, the Company may, by notice to such holders through the Purchase Contract Agent, irrevocably elect
whether it will pay Contract Adjustment Payments in cash, shares of Common Stock or a combination thereof (a “Contract
Adjustment Payment Method”) and, if applicable, the amount or percentage of a Contract Adjustment Payment to be paid
in Common Stock, to apply to any Contract Adjustment Payment following such notice (unless a Contract Adjustment Payment Method
has previously been designated) and, subject to the foregoing, specify the effective time of such election (which may be any


 





 




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time subsequent to the delivery
of such notice). The Company’s irrevocable election of a Contract Adjustment Payment Method as described herein may be made
by the Company in its sole discretion.


 


(v) No fractional shares of Common
Stock shall be delivered by the Company to Holders in payment or partial payment of a Contract Adjustment Payment. A cash adjustment
shall be paid by the Company to each Holder that would otherwise be entitled to receive a fraction of a share of Common Stock based
on (x) the Five- Day Average Price and (y) the aggregate number of Units held by such Holder (or if the Units are held in global
book-entry form, based on the applicable procedures of the Depositary for determining such number of Units).


 


(vi) To the extent that the Company,
in its reasonable judgment, determines that a Registration Statement is required in connection with the issuance of, or for resales
of, Common Stock issued as a Contract Adjustment Payment, including Contract Adjustment Payments paid in connection with a Fundamental
Change Early Settlement, the Company shall, to the extent such a Registration Statement is not currently filed and effective, use
its commercially reasonable efforts to file and maintain the effectiveness of such a Registration Statement until the earlier of
such time as all such shares of Common Stock have been resold thereunder and such time as all such shares are freely tradable by
non-Affiliates of the Company without registration. To the extent applicable, the Company shall also use its commercially reasonable
efforts to have such shares of Common Stock qualified or registered under applicable state securities laws, if required, and approved
for listing on the NYSE (or if the Common Stock is not then listed on the NYSE, on the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed).


 


(f) The Contract
Adjustment Payments are unsecured and will rank subordinate and junior in right of payment to all of the Company’s existing
and future Indebtedness.


 


Section 5.10. Deferral of Contract Adjustment Payments.


 


(a) The Company has the right at any
time, and from time to time, to defer payment of all or part of the Contract Adjustment Payments in respect of each Purchase Contract
by extending the period for payment of Contract Adjustment Payments to any subsequent Payment Date (an “Extension Period”),
but not beyond the Purchase Contract Settlement Date (or, with respect to Purchase Contracts for which (i) an effective Fundamental
Change Early Settlement has occurred, the Fundamental Change Early Settlement Date or (ii) an effective Early Settlement has occurred,
the Payment Date immediately preceding the Early Settlement Date). Prior to the expiration of any Extension Period, the Company
may further extend such Extension Period to any subsequent Payment Date, but not beyond the Purchase Contract Settlement Date (or
any applicable Fundamental Change Early Settlement Date or Payment Date immediately preceding the Early Settlement Date, as the
case may be).


 


If the Company so elects to defer Contract Adjustment
Payments, the Company shall pay additional Contract Adjustment Payments on such deferred installments of Contract Adjustment


 





 




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Payments at the annual rate then in effect for Contract
Adjustment Payments, compounding on each succeeding Payment Date, to, but excluding, the date such deferred installments are paid
in full (the accrued additional Contract Adjustment Payments thereon, being referred to herein as the “Compounded Contract
Adjustment Payments”). The Company may pay any such deferred Contract Adjustment Payments (including Compounded Contract
Adjustment Payments thereon) on any scheduled Payment Date.


 


At the end of each Extension Period, including as the
same may be extended as provided above, or, in the event of an effective Early Settlement or Fundamental Change Early Settlement,
on the date shares of Common Stock are delivered in respect of such Early Settlement or the Fundamental Change Early Settlement
Date, as the case may be, the Company shall pay all deferred Contract Adjustment Payments (including Compounded Contract Adjustment
Payments thereon) then due in the manner set forth in Section 5.09(a) (in the case of the end of an Extension Period), in
the manner set forth in Section 5.06(b) (in the case of an Early Settlement) or in the manner set forth in Section 5.04
(in the case of a Fundamental Change Early Settlement) to the extent such amounts are not deducted from the amount otherwise payable
by the Holder in the case of any Early Settlement or any Fundamental Change Early Settlement. In the event of an Early Settlement,
the Company shall pay all deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) then
payable, if any, on the Purchase Contracts being settled early through the Payment Date immediately preceding the applicable Early
Settlement Date. In the event of a Fundamental Change Early Settlement, the Company shall pay all deferred Contract Adjustment
Payments (including Compounded Contract Adjustment Payments thereon) due on the Purchase Contracts being settled on the Fundamental
Change Early Settlement Date to, but excluding, such Fundamental Change Early Settlement Date.


 


Upon termination of any Extension Period and the payment of
all deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) and all accrued and unpaid
Contract Adjustment Payments then due, the Company may commence a new Extension Period; provided that such Extension Period,
together with all extensions thereof, may not extend beyond the Purchase Contract Settlement Date (or any applicable Early Settlement
Date or Fundamental Change Early Settlement Date). Except in the case of an Early Settlement or Fundamental Change Early Settlement,
no Contract Adjustment Payments shall be due and payable during an Extension Period except at the end thereof.


 


(b) The Company shall give written
notice to the Purchase Contract Agent (and the Purchase Contract Agent shall promptly thereafter give notice thereof to Holders
of Purchase Contracts) of its election to extend any period for the payment of Contract Adjustment Payments, the expected length
of any such Extension Period and any extension of any Extension Period, at least five Business Days before the earlier of (i) the
Record Date for the Payment Date on which Contract Adjustment Payments would have been payable except for the election to begin
or extend the Extension Period or (ii) the date the Purchase Contract Agent is required to give notice to any securities exchange
or to Holders of Purchase Contracts of such Record Date or such Payment Date.


 


(c) The Company shall give written
notice to the Purchase Contract Agent (and the Purchase Contract Agent shall promptly thereafter give notice thereof to Holders
of


 





 




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Purchase Contracts) of the end of an Extension Period
or its election to pay any portion of the deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments
thereon) on a Payment Date prior to the end of an Extension Period, at least five Business Days before the earlier of (i) the Record
Date for the Payment Date on which such Extension Period shall end or such payment of deferred Contract Adjustment Payments (including
Compounded Contract Adjustment Payments thereon) shall be made or (ii) the date the Purchase Contract Agent is required to give
notice to any securities exchange or to Holders of Purchase Contracts of such Record Date or such Payment Date.


 


(d) In the event the Company exercises its
option to defer the payment of Contract Adjustment Payments, then, until all deferred Contract Adjustment Payments (including Compounded
Contract Adjustment Payments thereon) have been paid, the Company shall not declare or pay any dividends on, or make any distributions
on, or redeem, purchase or acquire, or make a liquidation payment with respect to, any shares of the Company’s capital stock
(including the Convertible Preferred Stock and Series B Preferred Stock); provided that the foregoing does not apply to:


 


(i) purchases, redemptions or
other acquisitions of the Company’s capital stock in connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of employees, officers, directors, agents or consultants or a stock purchase or dividend reinvestment
plan, or the satisfaction of the Company’s obligations pursuant to any contract or security outstanding on the date that
the Contract Adjustment Payment is deferred requiring the Company to purchase, redeem or acquire its capital stock;


 


(ii) any
exchange, redemption or conversion of any class or series of the Company’s capital stock, or the capital stock of one of
the Company’s Subsidiaries, for any other class or series of the Company’s capital stock;


 


(iii) any purchase of, or payment
of Cash in lieu of, fractional interests in shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the securities being converted or exchanged;


 


(iv) any dividend or distribution
in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock;


 


(v) redemptions, exchanges or
repurchases of, or with respect to, any rights outstanding under a shareholder rights plan outstanding on the date that the Contract
Adjustment Payment is deferred or the declaration or payment thereunder of a dividend or distribution of or with respect to rights
in the future;


 


(vi) payments on any trust preferred
securities, subordinated debentures, junior subordinated debentures or junior subordinated notes, or any guarantees of any of the
foregoing, in each case, that rank equal in right of payment with the Contract Adjustment Payments, so long as the amount of payments
made on account


 





 




    71 


     


    

of such securities or guarantees and the Purchase
Contracts is paid on all such securities and guarantees and the Purchase Contracts then outstanding on a pro rata basis
in proportion to the full payment to which each series of such securities, guarantees or Purchase Contracts is then entitled if
paid in full;


 


(vii) delivery
of Series B Preferred Stock and (if applicable) Common Stock, and/or payment of cash in lieu of any fractional share of Common
Stock, in each case, upon conversion of the Convertible Preferred Stock;


 


(viii) payments on the Convertible
Preferred Stock or the Series B Preferred Stock (if any), in each case so long as the amount of payments made on account of such
Convertible Preferred Stock or Series B Preferred Stock (if any) and the Purchase Contracts is paid on all such Convertible Preferred
Stock or Series B Preferred Stock (if any) and the Purchase Contracts then outstanding on a pro rata basis in proportion
to the full payment to which each such Convertible Preferred Stock, Series B Preferred Stock or Purchase Contract is then entitled
if paid in full; and


 


(ix) any payment of deferred interest
or principal on, or repayment, redemption or repurchase of, parity or junior securities that, if not made, would cause the Company
to breach the terms of the instrument governing such parity or junior securities.


 


Section 5.11. Anti-dilution
Adjustments. The Maximum Settlement Rate shall be subject to the following adjustments:


 


(a) If the Company issues Common Stock as
a dividend or distribution on the Common Stock to all or substantially all holders of the Common Stock, or the Company effects
a share split or share combination, the Maximum Settlement Rate shall be adjusted based on the following formula: 











 


where,


  


SR0 = the Maximum Settlement Rate in effect
immediately prior to the close of business on the Record Date for such dividend or distribution or immediately prior to the open
of business on the effective date for such share split or share combination, as the case may be;


 


SR1 = the Maximum Settlement Rate in effect
immediately after the close of business on such Record Date or such effective date, as the case may be;


 


OS0 = the number of shares of Common Stock
outstanding immediately prior to the close of business on such Record Date or such effective date, as the case may be, in each
case, prior to giving effect to such event; and


 


OS1 = the number of shares of
Common Stock that would be outstanding immediately after, and solely as a result of, such event.


 








 





 




    72 


     


    

Any adjustment made pursuant to this clause ((a)) shall become
effective as of the close of business on (x) the Record Date for such dividend or other distribution or (y) the effective date
for such share split or share combination becomes effective, as applicable. If any dividend or distribution in this clause ((a))
is declared but not so paid or made, the new Maximum Settlement Rate shall be readjusted, on the date that the Board of Directors
determines not to pay or make such dividend or distribution, to the Maximum Settlement Rate that would then be in effect if such
dividend or distribution had not been declared.


 


(b) If the Company distributes to
all or substantially all holders of Common Stock any rights, options or warrants entitling them for a period of not more than
60 calendar days after the date of distribution thereof to subscribe for or purchase Common Stock, in any case at an exercise
price per share of Common Stock less than the Closing Price of the Common Stock on the Trading Day immediately preceding the date
of announcement of such distribution, the Maximum Settlement Rate shall be increased based on the following formula: 





  


where,


 


SR0= the Maximum
Settlement Rate in effect immediately prior to the close of business on the Record Date for such distribution;


 


SR1= the Maximum
Settlement Rate in effect immediately after the close of business on such Record Date;





 


OS0 = the number of shares of Common
Stock outstanding immediately prior to the close of business on the Record Date for such distribution;


 


X = the total number of shares of Common Stock
issuable pursuant to such rights, options or warrants; and


 


Y = the number of shares of Common Stock equal
to the quotient of (A) the aggregate price payable to exercise such rights, options or warrants divided by (B) the Closing
Price of the Common Stock on the Trading Day immediately preceding the date of announcement for the distribution of such rights,
options or warrants.


 


If any right, option or warrant described in this clause ((b))
is not exercised prior to the expiration of the exercisability thereof (and as a result no additional shares of Common Stock are
delivered or issued pursuant to such rights, options or warrants), the new Maximum Settlement Rate shall be readjusted, as of the
date of such expiration, to the Maximum Settlement Rate that would then be in effect had the increase with respect to the distribution
of such rights, options or warrants been made on the basis of delivery or issuance of only the number of shares of Common Stock
actually delivered.


 


For purposes of this clause ((b)),
in determining whether any rights, options or warrants entitle the holders thereof to subscribe for or purchase shares of Common
Stock at a price per share of Common Stock less than the Closing Price of the Common Stock on the Trading Day


 





 




    73 


     


    

immediately preceding the date of the date of announcement
of such distribution, and in determining the aggregate price payable to exercise such rights, options or warrants, there shall
be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on
exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined in good faith by the
Board of Directors.


 


Any increase to the Maximum Settlement Rate made under
this clause ((b)) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective
immediately after the close of business on the Record Date for such distribution.


 


(c) (1) If the Company distributes shares
of capital stock, evidences of indebtedness or other assets or property of the Company or rights, options or warrants to acquire
the Company’s capital stock or other securities to all or substantially all holders of Common Stock (excluding (i) any dividend,
distribution, share split and share combination described in clause ((a)) or ((b)) above, (ii) any dividend or distribution
paid exclusively in Cash, and (iii) any Spin-Off to which the provisions in clause (c)(2) below apply), the Maximum Settlement
Rate shall be increased based on the following formula:


 


SR1 = SR0 x SP0 / (SP0
– FMV)


 


where,


 


SR0 = the
Maximum Settlement Rate in effect immediately prior to the close of business on the Record Date for such distribution;


 


SR1 = the Maximum Settlement
Rate in effect immediately after the close of business on such Record Date;


 


SP0= the Closing Price of the Common
Stock on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and


 


FMW = the fair market value (as determined
in good faith by the Board of Directors), on the Record Date for such dividend or distribution, of the shares of capital stock,
evidences of indebtedness, assets or property so distributed, expressed as an amount per share of Common Stock.


 


An adjustment to the Maximum Settlement Rate made pursuant
to this Section 5.11(c)(1) shall become effective as of the close of business on the Record Date for such distribution.


 


Notwithstanding the foregoing, if “FMV”
(as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder
of a Purchase Contract shall receive, for each Purchase Contract, at the same time and upon the same terms as holders of shares
of Common Stock, the amount of such distributed shares of capital stock, evidences of indebtedness or other assets or property
that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Maximum Settlement Rate
on the Record Date for such dividend or distribution.


 





 




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(2) However, if the Company distributes
to all or substantially all holders of Common Stock, capital stock of any class or series, or similar equity interest, of or relating
to a Subsidiary or other business unit, that is, or when issued, will be, listed or admitted for trading on a U.S. national securities
exchange (a “Spin-Off”), then the Maximum Settlement Rate shall instead be increased based on the following
formula:





 


 


where,


 


SR0 = the Maximum Settlement Rate in effect
immediately prior to the end of the Valuation Period;


 


SR1 = the Maximum Settlement Rate in effect
immediately after the end of the Valuation Period;


 


FMV0 = the average of the closing prices
of the capital stock or similar equity interests distributed to holders of Common Stock applicable to one share of Common Stock
over each of the 10 consecutive Trading Days commencing on, and including, the Ex- Dividend Date for such dividend or distribution
with respect to the Common Stock on the NYSE or such other U.S. national or regional exchange or market that is at that time the
principal exchange or market for the Common Stock (the “Valuation Period”); and


 


MP0 = the average of the Closing Prices of
the Common Stock over the Valuation Period.


 


The adjustment to the Maximum Settlement Rate under this clause
(c)(2) shall occur at the close of business on the last Trading Day of the Valuation Period; provided that if a Holder
elects to early settle the Purchase Contracts pursuant to Section 5.04 or Section 5.06, or the Purchase Contract
Settlement Date occurs, in either case, during the Valuation Period, references with respect to 10 Trading Days shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the date on
which such Holder elected its early settlement right pursuant to Section 5.04 or Section 5.06, or the Business Day
immediately preceding the Purchase Contract Settlement Date, as the case may be, in determining the applicable Maximum Settlement
Rate.


 


If any dividend or distribution described in this clause
(c)(2) is declared but not so paid or made, the new Maximum Settlement Rate shall be readjusted, as of the date the Board of
Directors determines not to pay or make such dividend or distribution, to the Maximum Settlement Rate that would then be in effect
if such dividend or distribution had not been declared.


 


(d) If any regular,
quarterly Cash dividend or distribution is made to all or substantially all holders of Common Stock during any quarterly fiscal
period exceeds $0.1505 per share (the “Reference Dividend”), the Maximum Settlement Rate shall be increased
based on the following formula:


 





 




    75 


     


    

where,


 


SR0
= the Maximum Settlement Rate in effect immediately prior to the close of business on the Record Date for such
distribution;


 


SR1
= the Maximum Settlement Rate in effect immediately after the close of business on such Record Date;


 


SP0
= the Closing Price of the Common Stock on the Record Date for such distribution;


 


C
= the amount in Cash per share the Company distributes to holders of Common Stock; and


 


T
= the Reference Dividend; provided that if the dividend or distribution is not a regular quarterly Cash dividend, the
Reference Dividend shall be deemed to be zero.


 


Notwithstanding the foregoing, if “C” (as
defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder
of a Purchase Contract shall receive, for each Purchase Contract, at the same time and upon the same terms as holders of shares
of Common Stock, the amount of distributed Cash that such Holder would have received if such Holder owned a number of shares of
Common Stock equal to the Maximum Settlement Rate on the Record Date for such cash dividend or distribution.


 


The Reference Dividend shall be
subject to an inversely proportional adjustment whenever the Maximum Settlement Rate is adjusted, other than pursuant to this clause
((d)). The Reference Dividend shall be zero in the case of a Cash dividend that is not a regular quarterly dividend.


 


Any increase to the Maximum Settlement Rate made pursuant to
this Section 5.11(d) shall become effective as of the close of business on the Record Date for such dividend or distribution.
If any dividend or distribution described in this clause ((d)) is declared but not so paid or made, the new Maximum Settlement
Rate shall be readjusted, as of the date the Board of Directors determines not to pay or make such dividend or distribution, to
the Maximum Settlement Rate that would then be in effect if such dividend or distribution had not been declared.


 


(e) If the Company or any of its Subsidiaries
makes a payment in respect of a tender offer or exchange offer for the Common Stock, other than an odd lot tender offer, to the
extent that the Cash and value of any other consideration included in the payment per share of Common Stock validly tendered or
exchanged exceeds the Closing Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges
may be made pursuant to such tender or exchange offer, the Maximum Settlement Rate shall be increased based on the following formula:





 


where,


 


SR0
=
the Maximum Settlement Rate in effect immediately prior to the close of business on the Trading Day immediately following the
date on which such tender or exchange offer expires;


 





 




    76 


     


    

 


SR1
=
the Maximum Settlement Rate in effect immediately after the close of business on the Trading Day immediately following the date
on which such tender or exchange offer expires;


 


FMV
= the fair market value (as determined in good faith by the Board of Directors, whose good faith determination shall be conclusive),
at the close of business on the Trading Day immediately following the date on which such tender or exchange offer expires, of
the aggregate value of all Cash and any other consideration paid or payable for shares validly tendered or exchanged and not withdrawn
as of the expiration date;


 


OS0
= the number of shares of Common Stock outstanding immediately prior to the last time tenders or exchanges may be made
pursuant to such tender or exchange offer (prior to giving effect to the purchase or exchange of shares pursuant to such tender
or exchange offer);


 


OS1  =
the number of shares of Common Stock outstanding immediately after the last time tenders or exchanges may be made pursuant to
such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer);
and


 


SP1
= the Closing Price of the Common Stock for the Trading Day next succeeding the date such tender or exchange offer expires.


 


The adjustment to the Maximum Settlement Rate under this Section
5.11(e) shall become effective at the close of business on the Trading Day immediately following the date on which such tender
or exchange offer expires. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such
tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases
are rescinded, the new Maximum Settlement Rate shall be readjusted to be the Maximum Settlement Rate that would be in effect if
such tender or exchange offer had not been made.


 


(f) To the extent that the Company
has a shareholders rights plan involving the issuance of share purchase rights or other similar rights to all or substantially
all holders of the Common Stock in effect upon settlement of a Purchase Contract, the Holder thereof will receive, in addition
to the Common Stock issuable upon settlement of such Purchase Contract, the related rights for the Common Stock under the shareholders
rights plan, unless, prior to any settlement of such Purchase Contract, the rights have separated from the Common Stock, in which
case the Maximum Settlement Rate shall be adjusted at the time of separation as if the Company made a distribution to all holders
of Common Stock as described in clause (c)(1) above, subject to readjustment in the event of the expiration, termination
or redemption of the rights under the shareholder rights plan.


 


(g) The Company may increase the Maximum Settlement
Rate if the Board of Directors deems it advisable to avoid or diminish any income tax to holders of the Common Stock resulting
from any dividend or distribution of shares (or rights to acquire shares) or from any event treated as a dividend or distribution
for income tax purposes or for any other reasons.


 


(h) Adjustments to the Maximum Settlement
Rate shall be calculated to the nearest ten thousandth of a share. No adjustment to the Maximum Settlement Rate shall be required
unless the adjustment would require an increase or decrease of at least one percent in


 





 




    77 


     


    

the Maximum Settlement Rate. If any adjustment is not
required to be made because it would not change the Maximum Settlement Rate by at least one percent, then the adjustment shall
be carried forward and taken into account in any subsequent adjustment. All adjustments shall be made not later than the Purchase
Contract Settlement Date, any Early Settlement Date, any Fundamental Change Early Settlement Date and the time at which the Company
is required to determine the relevant Settlement Rate or amount of Make-Whole Shares (if applicable) in connection with any settlement
with respect to the Purchase Contracts.


 


(i) No adjustment to the Maximum Settlement
Rate shall be made if Holders participate, as a result of holding the Units and without having to settle the Purchase Contracts
that form part of the Units, in the transaction that would otherwise give rise to an adjustment as if they held, per Purchase Contract,
a number of shares of Common Stock equal to the Maximum Settlement Rate, at the same time and upon the same terms as the holders
of Common Stock participate in the transaction.


 


(j) Except as described in Section
5.11(a), (b), (c), (d) and (e) above, the Maximum Settlement Rate shall not be adjusted:


 


(i) upon
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 plan;


 


(ii) upon the issuance of options,
restricted stock or other awards in connection with any employment contract, executive compensation plan, benefit plan or other
similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors
or the exercise of such options or other awards;


 


(iii) upon
the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date the Units were first issued;


 


(iv)  for
a change in the par value or no par value of the Common Stock;


 


and


 


(v)
for accrued and unpaid Contract Adjustment Payments.


 


(k)
If an adjustment is made to the Maximum Settlement Rate, an adjustment also shall be made to the Reference Price on an inversely
proportional basis solely to determine which of the clauses of the definition of Settlement Rate shall be applicable to determine
the Settlement Rate with respect to the Purchase Contract Settlement Date, any Early Settlement Date or any Fundamental Change
Early Settlement Date.


 


(l) If any adjustment to the Maximum
Settlement Rate becomes effective, or any effective date, expiration date, Ex- Dividend Date or Record Date for any stock split
or reverse stock split, tender or exchange offer, issuance, dividend or distribution (relating to a required Maximum Settlement
Rate adjustment) occurs, during the period beginning on, and


 





 




    78 


     


    

including,
(i) the open of business on a first Trading Day of the Market Value Averaging Period or (ii) in the case of any Early Settlement
or Fundamental Change Early Settlement, the relevant Early Settlement Date or the Fundamental Change Early Settlement Date and,
in each case, ending on, and including, the date on which the Company delivers shares of Common Stock under the related Purchase
Contract, the Company shall make appropriate adjustments to the Maximum Settlement Rate, the Reference Price and/or the number
of shares of Common Stock deliverable upon settlement with respect to the Purchase Contract, in each case, consistent with the
methodology used to determine the anti-dilution adjustments set forth in this Section 5.11. If any adjustment to the Maximum
Settlement Rate becomes effective, or any effective date, expiration date, Ex-Dividend Date or Record Date for any stock split
or reverse stock split, tender or exchange offer, issuance, dividend or distribution (in each case, relating to a required Maximum
Settlement Rate adjustment) occurs, during the period used to determine the Applicable Market Value, Stock Price, the Five-Day
Average Period or any other averaging period or similar period hereunder, the Company shall make appropriate adjustments to the
applicable prices, consistent with the methodology used to determine the anti-dilution adjustments set forth in this Section
5.11.


 


(m) (i) Whenever the Maximum Settlement
Rate is adjusted as herein provided, the Company shall, as promptly as practicable following the occurrence of an event that requires
an adjustment pursuant to this Section 5 .11 (or if the Company is not aware of such occurrence, as soon as practicable
after becoming so aware):


 


(A) compute the adjusted Maximum
Settlement Rate in accordance with this Section 5 .11 and prepare and transmit to the Purchase Contract Agent an Officer’s
Certificate setting forth the adjusted Maximum Settlement Rate, the method of calculation thereof in reasonable detail, and the
facts requiring such adjustment and upon which such adjustment is based; and


 


(B) provide a written notice
to the Holders of the Units and the Purchase Contract Agent of the occurrence of such event and a statement in reasonable detail
setting forth the method by which the adjustment to the Maximum Settlement Rate was determined and setting forth the adjusted Maximum
Settlement Rate.


 


(ii) The Purchase Contract Agent
shall not at any time be under any duty or responsibility to any Holder to determine whether any facts exist which may require
any adjustment of the Maximum Settlement Rate, or with respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed in making the same. The Purchase Contract Agent shall be fully authorized and protected
in relying on any Officer’s Certificate delivered pursuant to Section 5.11(m)(i) and any adjustment contained therein
and the Purchase Contract Agent shall not be deemed to have knowledge of any adjustment unless and until it has received such Officer’s
Certificate. The Purchase Contract 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 or property, which may at the time be issued or delivered with respect to any
Purchase Contract; and the Purchase Contract Agent makes no representation with respect thereto. The Purchase Contract Agent shall
not be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock pursuant to a


 





 




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Purchase Contract or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article 5.


 


Section 5.12. Reorganization
Events. The following events are defined as “Reorganization Events”:


 


(i) any recapitalization, reclassification
or change of the Common Stock (other than changes resulting from a subdivision or combination);


 


(ii)
any consolidation, merger or combination involving the Company;


 


(iii)
any sale, lease or other transfer to another Person of the consolidated assets of the Company and its Subsidiaries substantially
as an entirety; or


 


(iv)  any
statutory exchange of the Common Stock;


 


in each case, as a result of which the Common Stock
would be converted into, or exchanged for, stock, other securities, other property or assets (including Cash or any combination
thereof) (“Exchange Property”).


 


Following the effective date of a Reorganization Event, the
Settlement Rate shall be determined by reference to the value of an Exchange Property Unit, and the Company shall deliver, upon
settlement of any Purchase Contract, a number of Exchange Property Units equal to the number of shares of Common Stock that it
would otherwise be required to deliver. In the event holders of Common Stock (other than any Constituent Person or Affiliate thereof)
have the opportunity to elect the form of consideration to be received in any Reorganization Event, the Exchange Property Unit
that Holders of the Units are entitled to receive will be deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock.


 


In the event of such a Reorganization Event, the Person
formed by such consolidation or surviving such merger or, if other than the Company, the Person which acquires the Company’s
assets and those of the Company’s Subsidiaries substantially as an entirety, shall execute and deliver to the Purchase Contract
Agent an agreement providing that the holder of each Unit that remains outstanding after the Reorganization Event (if any) will
have the rights described in the preceding paragraph and expressly assuming all of the Company’s obligations under the Purchase
Contracts, this Agreement, the Convertible Preferred Stock, any Series B Preferred Stock and the Remarketing Agreement. Such supplemental
agreement shall provide for adjustments to the amount of any securities constituting all or a portion of an Exchange Property Unit
and/or adjustments to the Maximum Settlement Rate, which, for events subsequent to the effective date of such Reorganization Event,
will be as nearly equivalent as may be practicable, as determined by the Company in its sole commercially reasonable discretion,
to the adjustments provided for under Section 5.11 (it being understood that no such adjustments shall be required with
respect to any portion of the Exchange Property that consists of cash).


 


In connection with any Reorganization Event, the Company
shall also adjust the Reference Dividend based on the number of shares of common stock comprising an Exchange Property Unit and
(if applicable) the value of any non-stock consideration comprising an Exchange


 





 




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Property Unit. If an Exchange Property Unit is composed
solely of non-stock consideration, the Reference Dividend shall be zero.


 


The provisions described in the preceding three paragraphs
shall similarly apply to successive Reorganization Events.


 


ARTICLE 6


 


RIGHTS AND REMEDIES OF HOLDERS


 


Section 6.01. Unconditional Right
of Holders to Receive Contract Adjustment Payments and to Purchase Shares of Common Stock. Each Holder of a Unit shall have
the right, which is absolute and unconditional, (a) subject to Article 5, to receive each Contract Adjustment Payment and
deferred Contract Adjustment Payment with respect to the Purchase Contract comprising part of such Unit on the respective Payment
Date for such Unit pursuant to the terms hereof and (b) except upon and following a Termination Event, to purchase shares of Common
Stock pursuant to such Purchase Contract and, in each such case, to institute suit for the enforcement of any such right to receive
Contract Adjustment Payments and the right to purchase shares of Common Stock, and such rights shall not be impaired without the
consent of such Holder.


 


Section 6.02. Restoration of Rights and
Remedies. If any Holder has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company and such Holder shall be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had
been instituted.


 


Section 6.03. Rights and Remedies
Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen
Certificates in the last paragraph of Section 3.09, no right or remedy herein conferred upon or reserved to the Holders
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.


 


Section 6.04. Delay or Omission
Not Waiver. No delay or omission of any Holder to exercise any right upon a default or remedy upon a default shall impair any
such right or remedy or constitute a waiver of any such right. Every right and remedy given by this Article 6 or by law
to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders.


 


Section 6.05. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of a Unit, by its acceptance of such Unit shall be deemed to have agreed,
that any court of competent jurisdiction may in its discretion require, in any suit for the enforcement of any right


 





 




    81 


     


    

or remedy under this Agreement, or in any suit against the Purchase
Contract Agent for any action taken, suffered or omitted by it as Purchase Contract Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and costs against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.05 shall not
apply to any suit instituted by the Purchase Contract Agent, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% of the Outstanding Units, or to any suit instituted by any Holder for the enforcement of the obligation
to pay Contract Adjustment Payments on or after the Payment Date therefor in respect of any Unit held by such Holder, or for enforcement
of the right to purchase shares of Common Stock under the Purchase Contracts constituting part of any Unit held by such Holder.


 


Section 6.06. Waiver of Stay
or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, that may affect the covenants or the performance of this Agreement; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Purchase Contract Agent or the Holders, but will suffer
and permit the execution of every such power as though no such law had been enacted.


 


ARTICLE 7


 


THE PURCHASE CONTRACT AGENT


 


Section 7.01. Certain Duties and Responsibilities.


 


(a)  The Purchase
Contract Agent hereby appointed by the Company:


 


(i) undertakes to perform, with
respect to the Units, such duties and only such duties as are specifically set forth in this Agreement and the Remarketing Agreement
to be performed by the Purchase Contract Agent and no implied covenants or obligations shall be read into this Agreement or the
Remarketing Agreement against the Purchase Contract Agent; and


 


(ii) in the absence of gross negligence
or willful misconduct on its part, may conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Purchase Contract Agent and conforming to the requirements of
this Agreement or the Remarketing Agreement, as applicable, but in the case of any certificates or opinions which by any provision
hereof are specifically required to be furnished to the Purchase Contract Agent, the Purchase Contract Agent shall be under a duty
to examine the same to determine whether or not they conform to the requirements of this Agreement or the Remarketing Agreement,
as applicable (but need not confirm or investigate the accuracy of the mathematical calculations or other facts or matters stated
therein).


 





 




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(b) No provision of this Agreement
or the Remarketing Agreement shall be construed to relieve the Purchase Contract Agent from liability for its own grossly negligent
action, its own grossly negligent failure to act, or its own willful misconduct, except that:


 


(i) this Section 7.01(b)
shall not be construed to limit the effect of Section 7.01(a) or Section 7.01(c);


 


(ii) the
Purchase Contract Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall
be conclusively determined by a court of competent jurisdiction that the Purchase Contract Agent was grossly negligent in ascertaining
the pertinent facts; and


 


(iii) the Purchase Contract Agent
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority of the aggregate stated amount of the Outstanding Certificates, relating to the time, method and place
of conducting any proceeding for any right or remedy available to the Purchase Contract Agent, or exercising any power conferred
upon the Purchase Contract Agent, under this Agreement with respect to the Units.


 


(c) No provision of this Agreement
or the Remarketing Agreement shall require the Purchase Contract Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.


 


(d) Whether or not therein expressly so provided,
every provision of this Agreement and the Remarketing Agreement relating to the conduct or affecting the liability of or affording
protection to the Purchase Contract Agent shall be subject to the provisions of this Section 7.01.


 


(e) The Purchase Contract Agent is
authorized to execute and deliver the Remarketing Agreement in its capacity as Purchase Contract Agent.


 


(f) In case a default by the Company
under this Agreement has occurred (that has not been cured or waived), and a Responsible Officer of the Purchase Contract Agent
have received written notice thereof, the Purchase Contract Agent shall exercise such of the rights and powers, if any, with respect
to such default, vested in it by this Agreement, and use the same degree of care and skill in the exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or her own affairs.


 


(g) None of the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent nor the Securities Intermediary shall be responsible for any calculations under
this Agreement or with respect to the Units.


 


(h) The Purchase Contract Agent may
hold Common Stock but, for the avoidance of doubt, will not be required to issue shares of Common Stock.


 





 




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(i) The Purchase Contract Agent shall
not at any time be under any duty or responsibility to any Holder to determine the Settlement Rate (or any adjustment thereto)
or whether any facts exist that may require any adjustment (including any increase) of the Settlement 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 in this Agreement
or in any supplemental agreement hereunder provided to be employed, in making the same. The Purchase Contract 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 settlement of any Purchase Contract; and the Purchase Contract
Agent make no representations with respect thereto. The Purchase Contract Agent shall not 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 Purchase Contract for the purpose of settlement or to comply with any of the duties, responsibilities
or covenants of the Company contained in this Agreement. Without limiting the generality of the foregoing, the Purchase Contract
Agent shall not be under any responsibility to (a) determine whether a supplemental agreement needs to be entered into or (b)
determine the correctness of any provisions contained in any supplemental agreement, in each case, entered into pursuant to Section
5.12 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders
upon the settlement of their Purchase Contract pursuant to Article 5 or to any adjustment to be made with respect thereto, but
may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall
be protected in conclusively relying upon, the Officer’s Certificate (which the Company shall be obligated to file with
the Purchase Contract Agent prior to the execution of any such supplemental agreement) with respect thereto.


 


Section 7.02. Notice of Default.
Within 90 calendar days after the occurrence of any default by the Company hereunder of which a Responsible Officer of the Purchase
Contract Agent has received written notice thereof, the Purchase Contract Agent shall transmit by mail to the Holders, as their
names and addresses appear in the Security Register, notice of such default hereunder, unless such default shall have been cured
or waived; provided that, except for a default in any payment obligation hereunder, the Purchase Contract Agent shall be
protected in withholding such notice if and for so long as a Responsible Officer of the Purchase Contract Agent in good faith determines
that the withholding of such notice is in the interests of Holders of the Units.


 


Section 7.03. Certain Rights of Purchase Contract
Agent.


 


Subject to the provisions of Section 7.01:


 


(a) the Purchase Contract Agent may conclusively
rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed or presented by the proper party or parties;


 


(b) any request or direction of the
Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate, Issuer Order or Issuer Request, and
any


 





 




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resolution of the Board of Directors of the Company
may be sufficiently evidenced by a Board Resolution;


 


(c) whenever in the administration
of this Agreement or the Remarketing Agreement the Purchase Contract Agent shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting to take any action hereunder or thereunder, the Purchase Contract Agent (unless other evidence
be herein specifically prescribed in this Agreement) may, in the absence of gross negligence or willful misconduct on its part,
conclusively rely upon an Officer’s Certificate of the Company;


 


(d) the Purchase Contract Agent may
consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;


 


(e) the Purchase Contract Agent shall 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, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Purchase Contract Agent may make reasonable further inquiry or investigation into such facts or matters related to the
execution, delivery and performance of the Purchase Contracts as it may see fit, and, if the Purchase Contract Agent shall determine
to make such further inquiry or investigation, it shall be given a reasonable opportunity to examine the relevant books, records
and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;


 


(f) the Purchase Contract Agent may
execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians
or nominees or an Affiliate of the Purchase Contract Agent and the Purchase Contract Agent shall not be responsible for any acts,
omissions, misconduct or negligence on the part of any agent, attorney, custodian or nominee or an Affiliate appointed with due
care by it hereunder;


 


(g) the Purchase Contract Agent shall
be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any
of the Holders pursuant to this Agreement, unless such Holders shall have offered to the Purchase Contract Agent security or indemnity
satisfactory to the Purchase Contract Agent against the costs, expenses, claims and liabilities which might be incurred by it in
compliance with such request or direction;


 


(h) the Purchase Contract Agent shall
not be liable for any action taken, suffered, or omitted to be taken by it in good faith and believed by it to be authorized or
within the rights or powers conferred upon it by this Agreement;


 


(i) the rights, privileges, protections,
immunities and benefits given to the Purchase Contract Agent, including, without limitation, its right to be indemnified, are extended
to, and shall be enforceable by, the Purchase Contract Agent in each of its capacities hereunder, and to each officer, director,
employee of the Purchase Contract Agent and each agent, custodian


 





 




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and other Person employed, in
any capacity whatsoever, by the Purchase Contract Agent to act hereunder and shall survive the resignation or removal of the Purchase
Contract Agent and the termination for any reason of this Agreement and the termination, satisfaction and discharge of the Units
and the Purchase Contracts;


 


(j) the Purchase Contract Agent shall
not be deemed to have notice or be charged with knowledge of any Fundamental Change, Termination Event or any default hereunder
unless a Responsible Officer of the Purchase Contract Agent has received written notice from the Company or any Holder of such
Fundamental Change, Termination Event or default at the Corporate Trust Office of the Purchase Contract Agent, and such notice
references the Units and this Agreement and identifies such default;


 


(k) the Purchase Contract Agent may
request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Agreement;


 


(l) anything in this Agreement notwithstanding,
in no event shall the Purchase Contract Agent be liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including but not limited to loss of profit), even if the Purchase Contract Agent has been advised as to the likelihood
of such loss or damage and regardless of the form of action;


 


(m) the Purchase Contract Agent shall
not be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware)
services, hacking, cyber-attacks, or other use or infiltration of the Purchase Contract Agent’s technological infrastructure
exceeding authorized access, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication
facility, it being understood that the Purchase Contract Agent shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances;


 


(n) the permissive right of the Purchase Contract
Agent to take or refrain from taking action hereunder shall not be construed as a duty; and


 


(o) the rights, privileges, protections,
immunities and benefits given to the Purchase Contract Agent, including, without limitation, its right to be indemnified, are extended
to, and shall be enforceable by, the Purchase Contract Agent in each of its capacities hereunder, and each agent, custodian and
other Person employed by the Purchase Contract Agent to act hereunder.


 


Section 7.04.
Not Responsible for Recitals or Issuance of Units. The recitals contained herein, in the Remarketing Agreement and in the
Certificates shall be taken as the statements of the Company, and the Purchase Contract Agent assumes no responsibility for their
accuracy or


 





 




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validity. The Purchase Contract Agent makes no representations
as to the validity or sufficiency of either this Agreement or of the Units or the Pledge or the Collateral or the Remarketing Agreement.
The Purchase Contract Agent shall not be accountable for the use or application by the Company of the proceeds in respect of the
Purchase Contracts.


 


Section 7.05. May Hold Units. Any
Security Registrar or any other agent of the Company, or the Purchase Contract Agent, in their individual or any other capacity,
may become the owner or pledgee of Units and may otherwise deal with the Company, the Collateral Agent or any other Person with
the same rights it would have if it were not Security Registrar or such other agent, or the Purchase Contract Agent. The Company
may become the owner or pledgee of Units.


 


Section 7.06. Money Held in Custody.
Money held by the Purchase Contract Agent in custody hereunder need not be segregated from the Purchase Contract Agent’s
other funds except to the extent required by law or provided herein; provided, however, that when the Purchase Contract
Agent holds Cash as a component of the Treasury Portfolio, a Treasury Unit or a Cash Settled Unit, such Cash shall be held in a
separate account hereunder. The Purchase Contract Agent shall be under no obligation to invest or pay interest on any money received
by it hereunder except as otherwise expressly provided hereunder or agreed in writing with the Company.


 


Section 7.07. Compensation and Reimbursement.


 


The Company agrees:


 


(a) to pay to the Purchase Contract
Agent compensation for all services rendered by it hereunder and under the Remarketing Agreement as the Company and the Purchase
Contract Agent shall from time to time agree in writing;


 


(b) except as otherwise expressly provided
for herein, to reimburse the Purchase Contract Agent upon its request for all reasonable expenses, disbursements and advances incurred
or made by the Purchase Contract Agent in accordance with any provision of this Agreement and the Remarketing Agreement (including
the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its gross negligence or willful misconduct;


 


(c) to indemnify the Purchase Contract
Agent and any predecessor Purchase Contract Agent (collectively, with the Purchase Contract Agent and its officers, directors,
employees, representatives and agents, the “Indemnitees”) for, and to hold each Indemnitee harmless against,
any loss, claim, liability or expense (including reasonable fees and expenses of counsel) including taxes (other than taxes based
upon, measured by or determined by the income of the Purchase Contract Agent) incurred without gross negligence or willful misconduct
on its part, arising out of or in connection with this Agreement, including the acceptance or administration of its duties hereunder
and the Indemnitees’ reasonable costs and expenses (including reasonable fees and expenses of counsel) of defending themselves
against any claim (whether asserted by the Company, a Holder or any other Person) or liability in connection with the exercise
or performance of any of the Purchase Contract Agent’s powers or duties hereunder;


 





 




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provided that the Purchase
Contract Agent shall promptly notify the Company of any third-party claim of which a Responsible Officer has received written notice
and which may give rise to the indemnity hereunder and give the Company the opportunity to control the defense of such claim with
counsel reasonably satisfactory to the applicable Indemnitee; and


 


(d) to pay or
reimburse the Purchase Contract Agent for transfer, stamp, documentary or other similar taxes, assessments or charges levied by
any governmental or revenue authority in respect of this Agreement or any other document referred to herein.


 


Purchase Contract Agent for purposes of this Section
shall include any predecessor Purchase Contract Agent; provided, however, that the gross negligence or willful misconduct
of any Purchase Contract Agent hereunder shall not affect the rights of any other Purchase Contract Agent hereunder.


 


The provisions of this Section
7.07 shall survive the resignation or removal of the Purchase Contract Agent and the termination for any reason of this Agreement,
and the termination, satisfaction and discharge of the Units and the Purchase Contracts.


 


Section 7.08. Corporate Purchase Contract
Agent Required; Eligibility. There shall at all times be a Purchase Contract Agent hereunder which shall be a Person organized
and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having (or being a member of a bank holding company having) a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority and having a designated corporate
trust office in the continental United States, if there be such a Person in the continental United States, qualified and eligible
under this Article 7 and willing to act on reasonable terms. If such Person publishes or files reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section
7.08, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published or filed. If at any time the Purchase Contract Agent shall cease to be eligible
in accordance with the provisions of this Section 7.08, it shall resign promptly in the manner and with the effect hereinafter
specified in this Article 7.


 


Section 7.09. Resignation and
Removal; Appointment of Successor. (a) No resignation or removal of the Purchase Contract Agent and no appointment of a successor
Purchase Contract Agent pursuant to this Article shall become effective until the earlier of (i) as indicated in the notice of
resignation or removal or (ii) the acceptance of appointment by the successor Purchase Contract Agent in accordance with the applicable
requirements of Section 7.10(a).


 


(b) The Purchase Contract Agent may resign
at any time by giving written notice thereof to the Company 60 calendar days prior to the effective date of such resignation. If
the instrument of acceptance by a successor Purchase Contract Agent required by Section 7.10(a) shall not have been delivered
to the Purchase Contract Agent within 30 calendar days after the giving of such notice of resignation, the resigning Purchase Contract
Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase
Contract Agent.


 





 




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(c) The Purchase Contract Agent may
be removed at any time by Act of the Holders of a majority in number of the Outstanding Units delivered to the Purchase Contract
Agent and the Company. If the instrument of acceptance by a successor Purchase Contract Agent required by Section 7. 10(a)
shall not have been delivered to the Purchase Contract Agent within 30 calendar days after such Act, the Purchase Contract Agent
being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor
Purchase Contract Agent.


 


(d)  If at any
time:


 


(i) the Purchase Contract Agent
shall cease to be eligible under Section 7.08 and shall fail to resign after written request therefor by the Company or
by any such Holder; or


 


(ii) the Purchase Contract Agent
shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Purchase Contract Agent or of
its property shall be appointed or any public officer shall take charge or control of the Purchase Contract Agent or of its property
or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution
may remove the Purchase Contract Agent, or (ii) any Holder who has been a bona fide Holder of a Unit for at least six months may,
on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal
of the Purchase Contract Agent and the appointment of a successor Purchase Contract Agent.


 


(e) If the Purchase Contract Agent
shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Purchase Contract Agent
for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Purchase Contract Agent and shall comply
with the applicable requirements of Section 7.10(a). If no successor Purchase Contract Agent shall have been so appointed
by the Company and accepted appointment in the manner required by Section 7.10(a), any Holder who has been a bona fide Holder
of a Unit for at least six months, on behalf of itself and all others similarly situated, or the Purchase Contract Agent may petition,
at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Purchase Contract Agent.


 


(f) The Company shall give, or shall
cause such successor Purchase Contract Agent to give with written direction to do so, notice of each resignation and each removal
of the Purchase Contract Agent and each appointment of a successor Purchase Contract Agent by mailing written notice of such event
by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the applicable Security Register. Each
notice shall include the name of the successor Purchase Contract Agent and the address of the Corporate Trust Office.


 


Section 7.10. Acceptance of Appointment
by Successor. (a) In case of the appointment hereunder of a successor Purchase Contract Agent, every such successor Purchase
Contract Agent so appointed shall execute, acknowledge and deliver to the Company and to the retiring Purchase Contract Agent an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring Purchase Contract Agent shall become
effective and such


 





 




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successor Purchase Contract Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Purchase Contract Agent;
but, on the request of the Company or the successor Purchase Contract Agent, such retiring Purchase Contract Agent shall, upon
payment of its charges, execute and deliver an instrument transferring to such successor Purchase Contract Agent all the rights,
powers and trusts of the retiring Purchase Contract Agent and duly assign, transfer and deliver to such successor Purchase Contract
Agent all property and money held by such retiring Purchase Contract Agent hereunder.


 


(b) Upon request of any such successor
Purchase Contract Agent, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor Purchase Contract Agent all such rights, powers and agencies referred to in Section 7.10(a).


 


(c) No successor Purchase Contract
Agent shall accept its appointment unless at the time of such acceptance such successor Purchase Contract Agent shall be qualified
and eligible under this Article 7.


 


Section 7.11. Merger, Conversion, Consolidation
or Succession to Business. Any Person into which the Purchase Contract Agent may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Purchase Contract Agent shall
be a party, or any Person succeeding to all or substantially all the corporate trust business of the Purchase Contract Agent, shall
be the successor of the Purchase Contract Agent hereunder, provided that such Person shall be otherwise qualified and eligible
under this Article 7, without the execution or filing of any paper or any further act on the part of any of the parties
hereto. In case any Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the
Purchase Contract Agent then in office, any successor by merger, conversion or consolidation to such Purchase Contract Agent may
adopt such authentication and execution and deliver the Certificates so authenticated and executed with the same effect as if such
successor Purchase Contract Agent had itself authenticated and executed such Units.


 


Section 7.12. Preservation of
Information; Communications to Holders. (a) The Purchase Contract Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Purchase Contract Agent in its capacity as Security Registrar.


 


(b) If three or more Holders (herein
referred to as “Applicants”) apply in writing to the Purchase Contract Agent, and furnish to the Purchase Contract
Agent reasonable proof that each such Applicant has owned a Unit for a period of at least six months preceding the date of such
application, and such application states that the Applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Units and is accompanied by a copy of the form of proxy or other communication which such Applicants
propose to transmit, then the Purchase Contract Agent shall mail to all the Holders copies of the form of proxy or other communication
which is specified in such request, with reasonable promptness after a tender to the Purchase Contract Agent of the materials to
be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing.


 





 




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Section 7.13. No Obligations of Purchase
Contract Agent. Except to the extent otherwise expressly provided in this Agreement, the Purchase Contract Agent assumes no
obligations and shall not be subject to any liability under this Agreement, the Remarketing Agreement or any Purchase Contract
in respect of the obligations of the Holder of any Unit thereunder. The Company agrees, and each Holder of a Certificate, by its
acceptance thereof, shall be deemed to have agreed, that the Purchase Contract Agent’s execution of the Certificates on behalf
of the Holders shall be solely as agent and attorney -in-fact for the Holders, and that the Purchase Contract Agent shall have
no obligation to perform such Purchase Contracts on behalf of the Holders, except to the extent expressly provided in Article
5 hereof.


 


Section 7.14. Tax Compliance.
(a) The Purchase Contract Agent shall comply in accordance with the terms hereof with any reasonable written direction received
from the Company with respect to the execution or certification of any required documentation and the application of such requirements
to particular payments or Holders or in other particular circumstances, and may for purposes of this Agreement conclusively rely
on any such direction in accordance with the provisions of Section 7.01(a) hereof.


 


(b) The Purchase Contract Agent shall
maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on written
request, to the Company or its authorized representative within a reasonable period of time after receipt of such request.


 


(c) The Purchase Contract Agent has
agreed to provide ministerial assistance to the Company to enable the Company to comply with applicable tax laws (inclusive of
rules, regulations and interpretations promulgated by competent authorities) in effect from time to time related to this Agreement,
the Units or the Purchase Contracts. The Company agrees to provide the Purchase Contract Agent with timely and sufficient information,
upon which the Purchase Contract Agent shall be entitled to conclusively rely, in order to enable the Purchase Contract Agent to
so assist the Company.


 


ARTICLE 8


 


SUPPLEMENTAL AGREEMENTS


 


Section 8.01. Supplemental Agreements
Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, the Purchase
Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary at any time and from time to time, may
enter into one or more agreements supplemental hereto, in form satisfactory to the Company and the Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Securities Intermediary to:


 


(a) evidence the succession of another
Person to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Certificates;


 





 




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(b) evidence and provide for the
acceptance of appointment hereunder by a successor Purchase Contract Agent, Collateral Agent, Securities Intermediary or Custodial
Agent;


 


(c) add to the covenants of the Company
for the benefit of the Holders, or surrender any right or power herein conferred upon the Company;


 


(d) cure any ambiguity, defect, inconsistency
or mistake, to correct or supplement any provisions herein that may be inconsistent with any other provision herein;


 


(e) make such other provisions in
regard to matters or questions arising under this Agreement that do not adversely affect the interests of any Holders in any material
respect;


 


(f) conform the provisions of this
Agreement to the description of the Units contained in the preliminary prospectus supplement relating to the sale of the Corporate
Units under the sections entitled “Description of the Equity Units,” “Description of the Purchase Contracts,”
“Certain Provisions of the Purchase Contract and Pledge Agreement,” “Description of the Convertible Preferred
Stock” and “Description of the Series B Preferred Stock,” as supplemented by the related term sheet; or


 


(g)  irrevocably
elect a Contract Adjustment Payment Method to apply.


 


Section 8.02. Supplemental Agreements
with Consent of Holders. With the consent of the Holders of not less than a majority of the Outstanding Purchase Contracts
voting together as one class, by Act of said Holders delivered to the Company and the Purchase Contract Agent, the Company, when
authorized by a Board Resolution, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Purchase Contract
Agent may enter into an agreement or agreements supplemental hereto for the purpose of modifying in any manner the terms of the
Purchase Contracts, or the provisions of this Agreement or the rights of the Holders in respect of the Units; provided however,
that, except as contemplated herein, no supplemental agreement shall, without the consent of the Holder of each outstanding Purchase
Contract affected thereby,


 


(a) subject to the Company’s
right to defer Contract Adjustment Payments, change any Payment Date;


 


(b) change the amount or the type
of Collateral required to be Pledged to secure a Holder’s obligations under any Purchase Contract (except for the rights
of Holders of Corporate Units to substitute Cash for the Pledged Applicable Ownership Interests in Convertible Preferred Stock
or the rights of Holders of Treasury Units to substitute shares of Convertible Preferred Stock for the Treasury Securities);


 


(c) impair the right of the Holder
of any Purchase Contract to receive distributions on the related Collateral or otherwise adversely affect the Holder’s rights
in or to such Collateral;


 


(d) impair the
Holders’ right to institute suit for the enforcement of any Purchase Contract or any Contract Adjustment Payments or deferred
Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon);


 





 




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(e) except as set forth in Section 5. 06
and Section 5.11, reduce the number of shares of Common Stock to be purchased pursuant to any Purchase Contract, increase
the price to purchase shares of Common Stock upon settlement of any Purchase Contract or change the Purchase Contract Settlement
Date or the right to Early Settlement or Fundamental Change Early Settlement;


 


(f) adversely
affect the Holder’s rights under a Purchase Contract in any material respect (provided that any amendment made pursuant
to Section 8.01(f) shall not be deemed to adversely affect the Holder’s rights under a Purchase Contract in any respect);


 


(g) reduce any Contract Adjustment
Payments or any deferred Contract Adjustment Payments (including Compounded Contract Adjustment Payments thereon) or change any
place where, or the coin or currency or method in which, any Contract Adjustment Payment is payable; or


 


(h) reduce
the percentage of the outstanding Purchase Contracts whose Holders’ consent is required for any modification or amendment
to the provisions of this Agreement and the Purchase Contracts;


 


provided that if any amendment or proposal referred
to above would adversely affect only the Corporate Units, only the Treasury Units or only the Cash Settled Units, then only the
affected voting group of Holders as of the record date for the Holders entitled to vote thereon will be entitled to vote on such
amendment or proposal, and such amendment or proposal shall not be effective except with the consent of the Holders of not less
than a majority of such voting group, or each such Holder affected thereby in the case of an amendment or proposal referred to
in clauses (a) through (h) above.


 


It shall not be necessary for any
Act of Holders under this Section 8.02 to approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.


 


Section 8.03. Execution of Supplemental
Agreements. In executing, or accepting the additional agencies created by any supplemental agreement permitted by this Article
8 or the modifications thereby of the agencies created by this Agreement, the Purchase Contract Agent, the Collateral Agent,
the Securities Intermediary and the Custodial Agent shall be provided, and (subject to Section 7.01 with respect to the
Purchase Contract Agent) shall be fully authorized and protected in conclusively relying upon, an Officer’s Certificate and
an Opinion of Counsel stating that the execution of such supplemental agreement is authorized or permitted by this Agreement, that
any and all conditions precedent to the execution and delivery of such supplemental agreement have been satisfied and that the
supplemental agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms. The Purchase Contract Agent, the Collateral Agent, the Securities Intermediary and the Custodial Agent may, but
shall not be obligated to, enter into any such supplemental agreement which affects their own rights, duties or immunities under
this Agreement or otherwise.


 





 




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Section 8.04. Effect of Supplemental
Agreements. Upon the execution of any supplemental agreement under this Article 8, this Agreement shall be modified
in accordance therewith, and such supplemental agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of the Holders and delivered hereunder, shall be bound
thereby.


 


Section 8.05. Reference to Supplemental
Agreements. Certificates authenticated, executed on behalf of the Holders and delivered after the execution of any supplemental
agreement pursuant to this Article 8 may, and shall if required by the Purchase Contract Agent, bear a notation in form
approved by the Purchase Contract Agent as to any matter provided for in such supplemental agreement. If the Company shall so determine,
new Certificates so modified as to conform, in the opinion of the Purchase Contract Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated, executed on behalf of the Holders and delivered by the
Purchase Contract Agent in exchange for Outstanding Certificates.


 


ARTICLE 9


 


CONSOLIDATION, MERGER, SALE, CONVEYANCE, TRANSFER
OR DISPOSITION


 


Section 9.01. Covenant Not To
Consolidate, Merge, Sell, Convey, Transfer or Dispose Property except under Certain Conditions. The Company covenants that
it will not merge or consolidate with any other Person or sell, convey, transfer, assign or otherwise dispose of all or substantially
all of its assets, unless:


 


(a) either the Company shall be the
surviving Person, or the successor (if other than the Company) shall be a Person duly organized and existing under the laws of
the United States, any state thereof or the District of Columbia and treated as a corporation for U.S. federal income tax purposes
and such entity shall expressly assume all the obligations of the Company under the Purchase Contracts, this Agreement (including
the Pledge provided for herein), the Convertible Preferred Stock (including any supplement thereto), any Series B Preferred Stock
and the Remarketing Agreement by one or more supplemental agreements, executed and delivered to the Purchase Contract Agent and
the Collateral Agent by such Person;


 


(b) the Company or such successor
Person shall not, immediately after such merger, consolidation, sale, conveyance, transfer, assignment or other disposition, be
in default of payment obligations under the Purchase Contracts, this Agreement, the Convertible Preferred Stock (including any
supplement thereto), any Series B Preferred Stock or the Remarketing Agreement or in material default in the performance of any
other obligations under any of the foregoing agreements; and


 


(c) an Officer’s Certificate and Opinion
of Counsel shall be delivered to the Purchase Contract Agent and the Collateral Agent providing that the conditions precedent to
such merger, consolidation or sale and the execution and delivery of any supplemental agreement in connection therewith have been
complied with.


 





 




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Section 9.02. Rights and Duties
of Successor Corporation. In case of any such merger, consolidation, sale, conveyance (other than by way of lease), transfer,
assignment or other disposition and upon any such assumption by a successor Person in accordance with Section 9.01, such
surviving Person shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the
Company and the Company shall be relieved of any further obligation hereunder and under the Units. Such surviving Person thereupon
may cause to be signed, and may issue either in its own name or in the name of The AES Corporation any or all of the Certificates
evidencing Units issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Purchase
Contract Agent; and, upon the order of such surviving Person, instead of the Company, and subject to all the terms, conditions
and limitations in this Agreement prescribed, the Purchase Contract Agent shall authenticate and execute on behalf of the Holders
and deliver any Certificates which previously shall have been signed and delivered by the officers of the Company to the Purchase
Contract Agent for authentication and execution, and any Certificate evidencing Units which such surviving Person thereafter shall
cause to be signed and delivered to the Purchase Contract Agent for that purpose. All the Certificates issued shall in all respects
have the same legal rank and benefit under this Agreement as the Certificates theretofore or thereafter issued in accordance with
the terms of this Agreement as though all of such Certificates had been issued at the date of the execution hereof. In case of
any such merger, consolidation, sale, assignment, transfer, or disposition such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Units thereafter to be issued as may be appropriate.


 


Section 9.03. Opinion of Counsel
Given to Purchase Contract Agent. The Purchase Contract Agent, subject to Section 7.01 and Section 7.03, shall
receive an Opinion of Counsel as conclusive evidence that any such merger, consolidation, sale, assignment, transfer, or disposition,
and any such assumption, complies with the provisions of this Article 9 and that all conditions precedent to the consummation
of any such merger, consolidation, sale, conveyance, transfer or other disposition have been met.


 


ARTICLE 10


 


COVENANTS


 


Section 10.01. Performance under
Purchase Contracts. The Company covenants and agrees for the benefit of the Holders from time to time of the Units that it
will duly and punctually perform its obligations under the Purchase Contracts in accordance with the terms of the Purchase Contracts
and this Agreement.


 


Section 10.02. Maintenance of
Office or Agency. The Company will maintain in the contiguous United States an office or agency where Certificates may be presented
or surrendered for acquisition of shares of Common Stock upon settlement of the Purchase Contracts on the Purchase Contract Settlement
Date, or upon Early Settlement or Fundamental Change Early Settlement and for transfer of Collateral upon occurrence of a Termination
Event, where Certificates may be surrendered for registration of transfer or exchange, or for a Collateral Substitution and where
notices and demands to or upon the Company in respect of the Units and this Agreement may be served. The Company will give prompt
written notice to the Purchase Contract Agent of the location, and any change in the location, of such office or agency. The


 





 




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Company initially designates the Corporate Trust Office of the
Purchase Contract Agent as such office of the Company. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Purchase Contract Agent with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office, and the Company hereby appoints the Purchase Contract Agent as
its agent to receive all such presentations, surrenders, notices and demands.


 


The Company may also from time to time designate one
or more other offices or agencies where Certificates may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the contiguous United States for such purposes. The Company will
give prompt written notice to the Purchase Contract Agent of any such designation or rescission and of any change in the location
of any such other office or agency. The Company hereby designates as the place of payment for the Units the Corporate Trust Office
and appoints the Purchase Contract Agent at the Corporate Trust Office as paying agent in such city.


 


Section 10.03. Company to Reserve
Common Stock. The Company shall at all times prior to the Purchase Contract Settlement Date reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock the full number of shares of Common Stock issuable against
tender of payment in respect of all Purchase Contracts constituting a part of the Units evidenced by Outstanding Certificates (including
the maximum number of Make-Whole Shares).


 


Section 10.04. Covenants as to
Common Stock; Listing. (a) The Company covenants that all shares of Common Stock which may be issued against tender of payment
in respect of, or in respect of any Contract Adjustment Payment on, any Purchase Contract constituting a part of the Outstanding
Units will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable. The Company shall comply, in all material
respects, with all applicable securities laws regulating the offer, issuance and delivery of shares of Common Stock upon settlement
of, or in respect of any Contract Adjustment Payment on, Purchase Contracts and will issue such shares of Common Stock as freely-tradable
shares, except to the extent holders thereof are underwriters (within the meaning of the Securities Act) or Affiliates of the Company.


 


(b) The Company further covenants
that, if at any time the Common Stock shall be listed on the NYSE or any other national securities exchange or automated quotation
system, the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long
as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon settlement
of, or issuable in respect of Contract Adjustment Payments on, Purchase Contracts; provided, however, that, if the rules
of such exchange or automated quotation system permit the Company to defer the listing of such Common Stock until the earlier of
(i) the date on which any Purchase Contract is first settled in accordance with the provisions of this Agreement and (ii) the first
payment of any Contract Adjustment Payment in shares of Common Stock, the Company covenants to list such Common Stock issuable
upon the earlier of (x) settlement of the Purchase Contracts and (y) the first payment of any Contract Adjustment Payment in shares
of Common Stock, in accordance


 





 




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with the requirements of such exchange or automated
quotation system no later than at such time.


 


Section 10.05. ERISA. Each
Holder from time to time of the Units that is a Plan or who used assets of a Plan to purchase Units hereby represents that either
(a) no portion of the assets used by such Holder to acquire the Corporate Units constitutes assets of the Plan or (b) the purchase
or holding of the Corporate Units by such purchaser or transferee will not constitute a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code or similar violation under any applicable laws.


 


Section 10.06. Tax Treatment. The
Company covenants and agrees, for United States federal income tax purposes, to (a) treat a Beneficial Owner’s acquisition
of the Corporate Units as the acquisition of the Applicable Ownership Interests in Convertible Preferred Stock and Purchase Contract
constituting the Corporate Units, (b) treat such Applicable Ownership Interests in Convertible Preferred Stock as equity of the
Company, (c) allocate, as of the date hereof, 100% of the purchase price for a Corporate Unit to the Applicable Ownership Interests
in Convertible Preferred Stock and 0% to each Purchase Contract, which will establish each Beneficial Owner’s initial tax
basis in each Purchase Contract as $0 and each Beneficial Owner’s initial tax basis in each Applicable Ownership Interest
in Convertible Preferred Stock as $100 and (d) treat each Beneficial Owner as the owner of the Collateral, including the Applicable
Ownership Interests in Convertible Preferred Stock, the Applicable Ownership Interests in the Treasury Portfolio, the Treasury
Securities or the Cash, as applicable.


 


Section 10.07. Withholding. Notwithstanding
anything to the contrary, the Company, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Remarketing
Agent and the Securities Intermediary, as applicable, shall have the right to deduct and withhold from any payment or distribution
(or deemed distribution) made with respect to a Purchase Contract or any share of or Applicable Ownership Interest in Convertible
Preferred Stock (or the delivery of shares of Common Stock, Series B Preferred Stock and/or cash upon conversion of Convertible
Preferred Stock or settlement of a Purchase Contract) or with respect to the Applicable Ownership Interests in the Treasury Portfolio
or the Treasury Securities such amounts as are required to be deducted or withheld with respect to the making of such payment or
distribution (or delivery) under applicable tax law without liability therefor. To the extent that any amounts are so deducted
or withheld and remitted to the appropriate governmental entity, such deducted or withheld amounts shall be treated for all purposes
as having been paid (or delivered) to the applicable Holder. In the event the Company, the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent, the Remarketing Agent or the Securities Intermediary previously remitted any amounts to a governmental
entity on account of taxes required to be deducted or withheld in respect of any payment or distribution (or deemed distribution)
or delivery with respect to a Purchase Contract or any share of Convertible Preferred Stock with respect to an applicable Holder,
the Company, the Purchase Contract Agent, the Collateral Agent, the Custodial Agent, the Remarketing Agent or the Securities Intermediary,
as applicable, shall be entitled to offset any such amounts against any amounts otherwise payable or deliverable to the applicable
Holder hereunder or under any other instrument or agreement.


 









 




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ARTICLE 11


 


PLEDGE


 


Section 11.01. Pledge. Each
Holder, acting through the Purchase Contract Agent as such Holder’s attorney-in-fact, and the Purchase Contract Agent, acting
solely as such attorney-in-fact, hereby pledges and grants to the Collateral Agent, as agent of and for the benefit of the Company,
a continuing first priority security interest in and to, and a lien upon and right of set-off against, all of such Person’s
right, title and interest in and to the Collateral to secure the prompt and complete payment and performance when due (whether
at stated maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent shall have all of the rights, remedies
and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the
other rights, remedies and recourses afforded to the Collateral Agent by this Agreement.


 


Section 11.02. Termination. As to
each Holder, the Pledge created hereby shall terminate upon the satisfaction of such Holder’s Obligations. Upon a Termination
Event (and subject to the Collateral Agent’s notification thereof by the Purchase Contract Agent), the Collateral Agent shall
instruct the Securities Intermediary to Transfer such portion of the Collateral attributable to such Holder to the Purchase Contract
Agent for distribution to such Holder, free and clear of the Pledge created hereby.


 


ARTICLE 12


 


ADMINISTRATION OF COLLATERAL


 


Section 12.01. Initial Deposit
of Convertible Preferred Stock. (a) Prior to or concurrently with the execution and delivery of this Agreement, the Company
shall cause the Transfer Agent to transfer, through the applicable procedures of the Depositary, for credit to the Collateral Account,
the Applicable Ownership Interests in Convertible Preferred Stock and the shares of Convertible Preferred Stock underlying such
Applicable Ownership Interests in Convertible Preferred Stock or security entitlements relating thereto and the Securities Intermediary
shall indicate by book-entry that a security entitlement with respect to such Applicable Ownership Interests in Convertible Preferred
Stock (and the shares of Convertible Preferred Stock underlying such Applicable Ownership Interests in Convertible Preferred Stock)
has been credited to the Collateral Account.


 


(b) The Collateral Agent may, but
shall not be obligated to, at any time or from time to time cause any or all securities or other property underlying any financial
assets credited to the Collateral Account to be registered in the name of the Securities Intermediary, the Collateral Agent or
their respective nominees.


 


Section 12.02. Establishment
of Collateral Account. The Securities Intermediary hereby confirms that:


 


(a) the Securities Intermediary has
established the non-interest bearing Collateral Account;


 





 




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(b) the Collateral Account is a securities
account and a “securities account” as defined in Article 1(b) of the Hague Securities Convention;


 


(c) subject to the terms of this Agreement,
the Securities Intermediary shall identify in its records the Collateral Agent as the entitlement holder entitled to exercise the
rights that comprise any financial asset credited to the Collateral Account;


 


(d) all property delivered to the
Securities Intermediary pursuant to this Agreement, including any Cash, Applicable Ownership Interests in the Treasury Portfolio
or Treasury Securities and the Permitted Investments, shall be credited promptly to the Collateral Account;


 


(e) all securities or other property underlying
any financial assets credited to the Collateral Account shall be (i) registered in the name of the Purchase Contract Agent and
indorsed, without recourse or representation, to the Securities Intermediary or in blank, (ii) registered in the name of the Securities
Intermediary or (iii) credited to another securities account maintained in the name of the Securities Intermediary. In no case
shall any financial asset credited to the Collateral Account be registered in the name of the Purchase Contract Agent (in its capacity
as such) or any Holder or specially indorsed to the Purchase Contract Agent (in its capacity as such) or any Holder, unless such
financial asset has been further indorsed to the Securities Intermediary or in blank; and


 


(f) the Securities Intermediary is
an “intermediary” (as defined in Article 1(c) of the Hague Securities Convention).


 


In addition, the Securities Intermediary hereby confirms
and agrees that (i) it is a “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC) in respect of
the Collateral Account, and that all properties (except for Cash) credited to the Collateral Account shall be treated as “financial
assets” (as defined in Section 8-102(a)(9) of the UCC), and (ii) with respect to all Cash held, credited, or carried by,
in or to the Collateral Account, the Securities Intermediary shall maintain such Collateral Account as a “deposit account”
within the meaning of Section 9-102 of the UCC. The Securities Intermediary confirms that it is acting as a bank within the meaning
of Article 9 of the UCC with respect to any Cash that may be held, credited, or carried by or in the Collateral Account.


 


Section 12.03. Treatment as Financial
Assets. Each item of property (whether investment property, financial asset, security or instrument, but other than Cash) credited
to the Collateral Account shall be treated as a financial asset.


 


Section 12.04. Sole Control by
Collateral Agent. Except as provided in Section 15.01, at all times prior to the termination of the Pledge, the Collateral
Agent shall have sole control of the Collateral Account, and the Securities Intermediary shall take instructions and directions,
and comply with entitlement orders, with respect to the Collateral Account or any financial asset credited thereto solely from
the Collateral Agent as set forth in this Agreement. If at any time the Securities Intermediary shall receive an entitlement order
or an instruction directing the disposition of funds in the Collateral Account issued by the Collateral Agent and relating to the
Collateral Account, the Securities Intermediary shall comply with such entitlement order or


 





 




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instruction without further consent by the Purchase
Contract Agent or any Holder or any other Person. Except as otherwise permitted under this Agreement, until termination of the
Pledge, the Securities Intermediary shall not comply with any entitlement orders issued by the Purchase Contract Agent or any Holder.


 


Section 12.05. Jurisdiction. The
Collateral Account, and the rights and obligations of the Securities Intermediary, the Collateral Agent, the Purchase Contract
Agent and the Holders with respect thereto, shall be governed by the laws of the State of New York. Regardless of any provision
in any other agreement, for the purposes of the UCC the Securities Intermediary’s jurisdiction is the State of New York.
In addition, to the extent that any agreements between the Securities Intermediary and any other Person governing the Collateral
Account (collectively, the “Account Agreements”) do not provide that the laws of the State of New York shall
govern all of the issues specified in Article 2(1) of the Hague Securities Convention, each Account Agreement is hereby amended
to provide that the law applicable to all of the issues specified in Article 2(1) of the Hague Securities Convention shall be the
laws of the State of New York. The Securities Intermediary represents that each Account Agreement (a) is governed by the laws of
the State of New York and (b) if any Account Agreement expressly provides that a law is applicable to all the issues specified
in Article 2(1) of the Hague Securities Convention, that law is the laws of the State of New York. At the time of its entry into
the governing law provisions of this Agreement, the Securities Intermediary had an office located in the United States that was
not a temporary office and that engaged in a business or other regular activity of maintaining securities accounts.


 


Section 12.06. No Other Claims. Except
for the interest of the Collateral Agent and of the Purchase Contract Agent and the Holders in the Collateral Account, the Securities
Intermediary (without having conducted any investigation) does not know of any interest in the Collateral Account or in any Cash
or financial asset credited thereto. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the Collateral Account or in any Cash or financial asset
carried therein, the Securities Intermediary shall promptly notify the Collateral Agent and the Purchase Contract Agent.


 


Section 12.07. Investment and Release.


 


(a) All proceeds of financial assets from
time to time credited to the Collateral Account shall be invested and reinvested as provided in this Agreement. At all times prior
to termination of the Pledge, no property shall be released from the Collateral Account except in accordance with this Agreement
or upon written instructions of the Collateral Agent.


 


(b) In the event that any shares of
Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock are to be released
from the Pledge following a Termination Event, Collateral Substitution, Successful Remarketing, Early Settlement or Fundamental
Change Early Settlement (a “Released Share”), and the Pledged Applicable Ownership Interests in Convertible
Preferred Stock are represented by a physical certificate in the name of the Purchase Contract Agent held by the Collateral Agent
(the “Pledged Convertible Preferred Share”), such release and delivery shall be evidenced by an endorsement
by the Collateral Agent on the certificate held by the Collateral Agent reflecting a


 





 




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reduction in the number of shares of Convertible Preferred Stock
represented by such Pledged Convertible Preferred Share equal in amount (the “Reduced Balance”) to the number
of the Released Shares. The Collateral Agent shall confirm any such Reduced Balance by telecopying or otherwise delivering a photocopy
of such endorsement made on the Pledged Convertible Preferred Share evidencing such Reduced Balance to the Transfer Agent at the
telecopier number or address of the Transfer Agent provided for notices to the Transfer Agent in this Agreement (or at such other
telecopier or address as the Transfer Agent shall provide to the Collateral Agent). Upon receipt of such confirmation, the Transfer
Agent shall instruct the Custodial Agent to increase the balance of a Global Preferred Share held by the Custodial Agent in an
amount equal to the Reduced Balance by an endorsement made by the Custodial Agent on such Global Preferred Share to reflect such
increase. In the event that a share of Convertible Preferred Stock is transferred to the Collateral Agent pursuant to Section
3.14(a) (a “Subjected Share”) in connection with the recreation of Corporate Units, such transfer shall
be evidenced by an endorsement by the Collateral Agent on the Pledged Convertible Preferred Share held by the Collateral Agent
reflecting an increase in the balance of such Pledged Convertible Preferred Share equal in amount (the “Increased Balance”)
to the number of such Subjected Shares. The Collateral Agent shall confirm any such Increased Balance by telecopying or otherwise
delivering a photocopy of such endorsement made on the Pledged Convertible Preferred Share evidencing such Increased Balance to
the Transfer Agent at the telecopier number or address of the Transfer Agent provided for notices to the Transfer Agent (or at
such other telecopier or address as the Transfer Agent shall provide to the Collateral Agent). Upon receipt of such confirmation,
the Transfer Agent shall instruct the Custodial Agent to decrease the balance of the Global Preferred Share held by the Custodial
Agent in an amount equal to the Increased Balance by an endorsement made by the Custodial Agent on such Global Preferred Share
to reflect such decrease. The release and delivery of any Released Share in the case where the Pledged Applicable Ownership Interests
in Convertible Preferred Stock are represented by a Global Preferred Share shall be effected by a transfer of such Released Share
to an account at the Depositary specified by the holder of such Released Share to the Purchase Contract Agent and Collateral Agent
and otherwise in accordance with the terms of the relevant provision of this Agreement.


 


Section 12.08. Treasury Securities.
Promptly following receipt of the Treasury Securities in substitution of any Convertible Preferred Stock underlying Pledged Applicable
Ownership Interests in Convertible Preferred Stock upon creation of Treasury Units, the Collateral Agent shall notify the Company
of such receipt of Treasury Securities.


 


Section 12.09.
Statements and Confirmations. The Securities Intermediary shall promptly send copies of all statements, confirmations and
other correspondence concerning the Collateral Account and any Cash or financial assets credited thereto simultaneously to each
of the Purchase Contract Agent and the Collateral Agent at their addresses for notices under this Agreement. The requirements of
this Section 12.09 shall be performed by the Securities Intermediary by granting online read only access to the Collateral
Account.


 


Section 12.10. Tax Allocations.
To the extent required by law, the Purchase Contract Agent shall timely report all items of income, gain, expense and loss recognized
in the Collateral Account to the Internal Revenue Service in the manner required by law. None of the Securities


 





 




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Intermediary, the Collateral Agent and the Custodial
Agent shall have any tax reporting duties hereunder.


 


Section 12.11. No Other Agreements.
The Securities Intermediary, acting solely in its capacity as Securities Intermediary, has not entered into, and prior to the termination
of the Pledge shall not enter into, any agreement with any other Person relating to the Collateral Account or any Cash or financial
assets credited thereto, including, without limitation, any agreement to comply with entitlement orders of any Person other than
the Collateral Agent.


 


Section 12.12. Powers Coupled
with an Interest. The rights and powers granted in this Agreement to the Collateral Agent have been granted in order to perfect
its security interests in the Collateral Account, are powers coupled with an interest and will be affected neither by the bankruptcy
of the Purchase Contract Agent or any Holder nor by the lapse of time. The obligations of the Securities Intermediary under this
Agreement shall continue in effect until the termination of the Pledge.


 


Section 12.13. Waiver of Lien Waiver
of Set-off. The Securities Intermediary waives any security interest, lien or right to make deductions or set-offs that it
may now have or hereafter acquire in or with respect to the Collateral Account, any Cash or financial asset credited thereto or
any security entitlement in respect thereof. Neither the Cash or financial assets credited to the Collateral Account nor the security
entitlements in respect thereof will be subject to deduction, set-off, banker’s lien, or any other right in favor of any
person other than the Company.


 


ARTICLE 13


 


RIGHTS AND REMEDIES OF THE COLLATERAL AGENT


 


Section 13.01. Rights and Remedies of
the Collateral Agent. (a) In addition to the rights and remedies set forth herein or otherwise available at law or in equity,
after a collateral event of default (as specified in Section 13.01(b) below) hereunder, the Collateral Agent shall have
all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not the UCC is in effect
in the jurisdiction where the rights and remedies are asserted) and the TRADES Regulations and such additional rights and remedies
to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be
asserted. Without limiting the generality of the foregoing, such remedies may include, to the extent permitted by applicable law,
(1) retention of the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock,
the Pledged Treasury Securities, the Pledged Applicable Ownership Interests in the Treasury Portfolio and/or the Pledged Cash in
full satisfaction of the Holders’ obligations under the Purchase Contracts and the Purchase Contract Agreement and/or (2)
sale of the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock, the Pledged
Treasury Securities or the Pledged Applicable Ownership Interests in the Treasury Portfolio in one or more public or private sales.


 


(b) Without limiting any rights or
powers otherwise granted by this Agreement to the Collateral Agent, in the event the Collateral Agent is unable to make payments
to the Company on account of Proceeds of (i) the Convertible Preferred Stock underlying


 





 




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Pledged Applicable Ownership Interests in Convertible Preferred
Stock, (ii) Pledged Applicable Ownership Interests in the Treasury Portfolio, (iii) Pledged Cash or (iv) the Pledged Treasury Securities
as provided in this Agreement in satisfaction of the Obligations of the Holder of the Units of which such Convertible Preferred
Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock, such Pledged Applicable Ownership Interests
in the Treasury Portfolio, such Pledged Cash or such Pledged Treasury Securities are a part under the related Purchase Contracts,
the inability to make such payments shall constitute a “collateral event of default” hereunder and the Collateral
Agent shall, for the benefit of the Company, have and may exercise, with reference to such Convertible Preferred Stock underlying
Pledged Applicable Ownership Interests in Convertible Preferred Stock, Pledged Treasury Securities, Pledged Cash or Pledged Applicable
Ownership Interests in the Treasury Portfolio, as applicable, any and all of the rights and remedies available to a secured party
under the UCC and the TRADES Regulations after default by a debtor, and as otherwise granted herein or under any applicable law.


 


(c) Without limiting any rights or
powers otherwise granted by this Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably authorized to receive,
collect and apply to the satisfaction of the Obligations all payments with respect to (i) the Convertible Preferred Stock underlying
Pledged Applicable Ownership Interests in Convertible Preferred Stock, (ii) the Pledged Treasury Securities, the (iii) Pledged
Cash and (iv) the Pledged Applicable Ownership Interests in the Treasury Portfolio, subject, in each case, to the provisions of
this Agreement, and as otherwise provided herein.


 


(d) Subject to Section 7.04,
the Purchase Contract Agent and each Holder agrees that, from time to time, the Purchase Contract Agent, on behalf of such Holder,
shall execute and deliver such further documents and do such other acts and things as the Company may reasonably request in order
to maintain the Pledge, and the perfection and priority thereof, and to confirm the rights of the Collateral Agent hereunder. The
Purchase Contract Agent shall have no liability to any Holder for the maintenance of the Pledge or the perfection or priority hereof
or for executing any documents, except for liability for its own grossly negligent acts, its own grossly negligent failure to act
or its own willful misconduct.


 


(e) The Collateral Agent, the Securities
Intermediary and the Custodial Agent shall be entitled to all of the rights, protections, privileges and immunities set forth in
Article 7 for the benefit of the Purchase Contract Agent.


 


ARTICLE 14


 


REPRESENTATIONS
AND WARRANTIES TO COLLATERAL AGENT; HOLDER COVENANTS


 


Section 14.01. Representations And Warranties.
Each Holder from time to time, acting through the Purchase Contract Agent as attorney-in-fact (it being understood that the Purchase
Contract Agent shall not be liable for any representation or warranty made by or on behalf of a Holder), hereby represents and
warrants to the Collateral Agent (with respect to such Holder’s interest in the Collateral), which representations and warranties
shall be deemed repeated on each day a Holder effects a Transfer of Collateral, that:


 





 




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(a)  such Holder has the power to grant a
security interest in and lien on the Collateral;


 


(b) such Holder is the sole beneficial
owner of the Collateral and, in the case of Collateral delivered in physical form, is the sole holder of such Collateral and is
the sole beneficial owner of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent for credit to the
Collateral Account, free and clear of any security interest, lien, encumbrance, call, liability to pay money or other restriction
other than the security interest and lien granted under Article 11;


 


(c) upon the Transfer of the Collateral to
the Securities Intermediary for credit to the Collateral Account, the Collateral Agent, for the benefit of the Company, will have
a valid and perfected first priority security interest therein (assuming that any central clearing operation or any securities
intermediary or other entity not within the control of the Holder involved in the Transfer of the Collateral, including the Collateral
Agent and the Securities Intermediary, gives the notices and takes the action required of it hereunder and under applicable law
for perfection of that interest and assuming the establishment and exercise of control pursuant to Article 12 hereof); and


 


(d) the execution and performance
by the Holder of its obligations under this Agreement will not result in the creation of any security interest, lien or other encumbrance
on the Collateral (other than the security interest and lien granted under Article 11 hereof) or violate any provision of
any existing law or regulation applicable to it or of any mortgage, charge, pledge, indenture, contract or undertaking to which
it is a party or which is binding on it or any of its assets.


 


Section 14.02. Covenants.
The Purchase Contract Agent and the Holders from time to time, acting through the Purchase Contract Agent as their attorney-in-fact
(it being understood that the Purchase Contract Agent shall not be liable for any covenant made by or on behalf of a Holder), hereby
covenant to the Collateral Agent that for so long as the Collateral remains subject to the Pledge:


 


(a) neither the Purchase Contract
Agent nor such Holders will create or purport to create or allow to subsist any mortgage, charge, lien, pledge or any other security
interest whatsoever over the Collateral or any part of it other than pursuant to this Agreement; and


 


(b) neither the Purchase Contract
Agent nor such Holders will sell or otherwise dispose (or attempt to dispose) of the Collateral or any part of it except for the
beneficial interest therein, subject to the Pledge hereunder, transferred in connection with a Transfer of the Units.


 


ARTICLE 15


 


THE COLLATERAL AGENT, THE CUSTODIAL AGENT AND
THE SECURITIES INTERMEDIARY


 


It is hereby agreed as follows:


 





 




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Section 15.01. Appointment, Powers and
Immunities. The Collateral Agent, the Custodial Agent and the Securities Intermediary are hereby appointed by the Company and
shall act as agent for the Company hereunder with such powers as are specifically vested in the Collateral Agent, the Custodial
Agent and the Securities Intermediary, as the case may be, by the terms of this Agreement. The Collateral Agent, the Custodial
Agent and Securities Intermediary shall:


 


(a) have no duties, responsibilities,
covenants or obligations except those expressly set forth in this Agreement and no implied covenants, functions, responsibilities,
duties, liabilities or obligations shall be inferred from this Agreement against the Collateral Agent, the Custodial Agent or the
Securities Intermediary, nor shall the Collateral Agent, the Custodial Agent or the Securities Intermediary be bound by the provisions
of any agreement by any party hereto beyond the specific terms hereof and none of the Collateral Agent, the Custodial Agent or
the Securities Intermediary shall have any fiduciary duty to the Holders or any other Person, and in acting hereunder, the Collateral
Agent, Custodial Agent and Securities Intermediary shall 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 of the Holders or any other third party;


 


(b) not be responsible for any recitals
contained in this Agreement, or in any certificate or other document referred to or provided for in, or received by it under, this
Agreement or the Units, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement
(other than as against the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be), the Units,
any Collateral or any other document referred to or provided for herein or therein or for any failure by the Company or any other
Person (except the Collateral Agent, the Custodial Agent or Securities Intermediary, as the case may be) to perform any of its
obligations hereunder or thereunder or, for the perfection, priority or maintenance of any security interest created hereunder;


 


(c) not be required to initiate or
conduct any litigation or collection proceedings hereunder (except pursuant to directions furnished under Section 15.02
hereof, subject to Section 15.08 hereof);


 


(d) not be responsible or liable for
any action taken or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein
or in connection herewith or therewith or for any loss or injury resulting from its actions or its performance of its duties hereunder,
except for its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction;


 


(e) not be required to advise any
party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property
deposited hereunder;


 


(f) not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control
of the Collateral Agent, the Custodial Agent or the Securities Intermediary (including but not limited to any act or provision
of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance
or disaster, any act of terrorism, or the


 





 




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unavailability of the Federal Reserve Bank wire or
facsimile or other wire or communication facility); and


 


(g) the obligations of the Purchase
Contract Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary under this Agreement are several and
not joint.


 


Subject to the foregoing, during the term of this Agreement,
the Collateral Agent, the Custodial Agent and the Securities Intermediary shall take all reasonable action in connection with the
safekeeping and preservation of the Collateral hereunder as determined by industry standards. The Collateral Agent, the Securities
Intermediary and the Custodial Agent shall not be responsible for and make no representation as to the existence, genuineness,
value or protection of any Collateral, for the legality, effectiveness or sufficiency of any security document, or for the creation,
perfection, filing, priority, sufficiency or protection of any liens securing the Convertible Preferred Stock and the Collateral.


 


The Collateral Agent, the Custodial Agent and the Securities
Intermediary shall only be responsible for transferring money, securities or other property in accordance with the terms herein
to the extent that such money, securities or other property is credited to the Collateral Account.


 


No provision of this Agreement shall require the Collateral
Agent, the Custodial Agent or the Securities Intermediary to expend or risk its own funds or otherwise incur any liability, financial
or otherwise, in the performance of any of its duties or the exercise of any of its rights or powers hereunder. In no event shall
the Collateral Agent, the Custodial Agent or the Securities Intermediary be liable for any amount in excess of the Value of the
Collateral.


 


Section 15.02. Instructions of the Company.
The Company shall have the right, by one or more written instruments executed and delivered to the Collateral Agent, to direct
the time, method and place of conducting any proceeding for the realization of any right or remedy available to the Collateral
Agent, or of exercising any power conferred on the Collateral Agent, or to direct the taking or refraining from taking of any
action authorized by this Agreement; provided, however, that (a) such direction shall not conflict with the provisions
of any law or of this Agreement or involve the Collateral Agent in personal liability and (b) the Collateral Agent shall be indemnified
to its satisfaction as provided herein. Nothing contained in this Section 15.02 shall impair the right of the Collateral
Agent to take any action or omit to take any action which it deems proper and which is not inconsistent with such direction. None
of the Collateral Agent, the Custodial Agent or the Securities Intermediary has any obligation or responsibility to file UCC financing
or continuation statements or amendments or to take any other actions to create, preserve or maintain the security interest in
the Collateral.


 


Section 15.03. Reliance by Collateral
Agent, Custodial Agent and Securities Intermediary. Each of the Securities Intermediary, the Custodial Agent and the Collateral
Agent shall be entitled to rely conclusively upon any certification, order, judgment, opinion, notice or other written communication
(including, without limitation, any thereof by e-mail or similar electronic means, telecopy or facsimile) believed by it in good
faith to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons (without being
required to determine the correctness of any fact stated therein) and consult with and


 





 




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conclusively rely upon advice, opinions and statements
of legal counsel and other experts selected by the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the
case may be, in each case, at the expense of the Company. As to any matters not expressly provided for by this Agreement, the Collateral
Agent, the Custodial Agent and the Securities Intermediary shall in all cases be fully protected in acting, or in refraining from
acting, hereunder in accordance with instructions given by the Company in accordance with this Agreement.


 


In each case that the Collateral Agent, the Custodial
Agent or the Securities Intermediary may or is required hereunder to take any action, including without limitation to make any
determination or judgment, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise
to act hereunder, the Collateral Agent, the Custodial Agent or Securities Intermediary may seek direction from the Company. The
Collateral Agent, the Custodial Agent or Securities Intermediary shall not be liable with respect to any action taken or omitted
to be taken by it in accordance with the direction from the Company. Unless direction or otherwise is expressly provided herein,
if the Collateral Agent, the Custodial Agent or the Securities Intermediary shall request direction from the Company with respect
to any action, the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be entitled to refrain from such
action unless and until such agent shall have received direction from the Company, and the agent shall not incur liability to any
Person by reason of so refraining.


 


Section 15.04. Certain Rights
.. (a) Whenever in the administration of the provisions of this Agreement the Collateral Agent, the Custodial Agent or the Securities
Intermediary shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action
to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence
of gross negligence or willful misconduct on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary,
be deemed to be conclusively proved and established by a certificate signed by one of the Company’s officers, and delivered
to the Collateral Agent, the Custodial Agent or the Securities Intermediary and such certificate, in the absence of gross negligence
or willful misconduct on the part of the Collateral Agent, the Custodial Agent or the Securities Intermediary, shall be full warrant
to the Collateral Agent, the Custodial Agent or the Securities Intermediary for any action taken, suffered or omitted by it under
the provisions of this Agreement upon the faith thereof.


 


(b) The Collateral Agent, the Custodial
Agent or the Securities Intermediary shall not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document.


 


Section 15.05. Merger, Conversion, Consolidation
or Succession to Business. Any Person into which the Collateral Agent, the Custodial Agent or the Securities Intermediary may
be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation
to which the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Collateral Agent, the Custodial Agent or the Securities Intermediary
shall be the successor of the Collateral Agent, the Custodial Agent or the Securities Intermediary, provided such Person
shall be otherwise qualified and eligible under this Article 15 hereunder without the execution or filing of any paper with
any party hereto or any further act on


 





 




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the part of any of the parties hereto except where
an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.


 


Section 15.06. Rights in Other
Capacities. The Collateral Agent, the Custodial Agent and the Securities Intermediary and their affiliates may (without having
to account therefor to the Company) accept deposits from, lend money to, make their investments in and generally engage in any
kind of banking, trust or other business with the Company, the Purchase Contract Agent, any other Person interested herein and
any Holder (and any of their respective subsidiaries or affiliates) as if it were not acting as the Collateral Agent, the Custodial
Agent or the Securities Intermediary, as the case may be, and the Collateral Agent, the Custodial Agent, the Securities Intermediary
and their affiliates may accept fees and other consideration from the Company, the Purchase Contract Agent and any Holder without
having to account for the same to the Company; provided that each of the Collateral Agent, the Custodial Agent and the Securities
Intermediary covenants and agrees with the Company that it shall not accept, receive or permit there to be created in favor of
itself and shall take no affirmative action to permit there to be created in favor of any other Person, any security interest,
lien or other encumbrance of any kind in or upon the Collateral other than the lien created by the Pledge.


 


Section 15.07. Non-reliance on the Collateral
Agent, Custodial Agent and Securities Intermediary. None of the Collateral Agent, the Custodial Agent and the Securities Intermediary
shall be required to keep itself informed as to the performance or observance by the Purchase Contract Agent or any Holder of this
Agreement, the Units or any other document referred to or provided for herein or therein or to inspect the properties or books
of the Purchase Contract Agent or any Holder. None of the Collateral Agent, the Custodial Agent or the Securities Intermediary
shall have any duty or responsibility to provide the Company with any credit or other information concerning the affairs, financial
condition or business of the Purchase Contract Agent or any Holder (or any of their respective affiliates) that may come into the
possession of the Collateral Agent, the Custodial Agent or the Securities Intermediary or any of their respective affiliates.


 


Section 15.08. Compensation And Indemnity.
The Company agrees to:


 


(a) pay the Collateral Agent, the
Custodial Agent and the Securities Intermediary from time to time such compensation as shall be agreed in writing between the Company
and the Collateral Agent, the Custodial Agent or the Securities Intermediary, as the case may be, for all services rendered by
them hereunder;


 


(b) indemnify and hold harmless the Collateral
Agent, the Custodial Agent, the Securities Intermediary and each of their respective directors, officers, agents and employees
(collectively, the “Pledge Indemnitees”), from and against any and all claims (whether asserted by the Company,
the Purchase Contract Agent or any other Person), liabilities, losses, and reasonable expenses (including reasonable fees and expenses
of counsel and agents) (collectively, “Losses” and individually, a “Loss”) that may be imposed
on, incurred by, or asserted against, the Pledge Indemnitees or any of them for following any instructions, acting upon any notices
or other directions (which shall include an instruction, notice or direction not to act) upon which any of the Collateral Agent,
the Custodial Agent or the Securities Intermediary is entitled to conclusively rely pursuant to the terms of this Agreement, provided
that the


 





 




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Collateral Agent, the Custodial
Agent or the Securities Intermediary has not acted with gross negligence or engaged in willful misconduct with respect to the specific
Loss against which indemnification is sought; and


 


(c) in addition to and not in limitation
of Section 15.08(b), indemnify and hold the Pledge Indemnitees and each of them harmless from and against any and all Losses
that may be imposed on, incurred by or asserted against, the Pledge Indemnitees or any of them in connection with or arising out
of the Collateral Agent’s, the Custodial Agent’s or the Securities Intermediary’s acceptance or performance of
its rights, powers and duties under this Agreement, including but not limited to the rights and powers set forth in Section
15. 09, provided the Collateral Agent, the Custodial Agent or the Securities Intermediary has not acted with gross negligence
or engaged in willful misconduct with respect to the specific Loss against which indemnification is sought.


 


The provisions of this Section 15.08 and Section 15.14
shall survive the resignation or removal of the Collateral Agent, the Custodial Agent or the Securities Intermediary and the termination
of this Agreement.


 


Section 15.09. Failure to Act.
In the event that, in the good faith belief of the Collateral Agent, the Custodial Agent or the Securities Intermediary, an ambiguity
in the provisions of this Agreement arises or any actual dispute between or conflicting claims by or among the parties hereto or
any other Person with respect to any funds or property deposited hereunder has been asserted in writing, then at its sole option,
each of the Collateral Agent, the Custodial Agent and the Securities Intermediary shall be entitled, after prompt notice to the
Company and the Purchase Contract Agent, to refuse to comply with any and all claims, demands or instructions with respect to such
property or funds so long as such dispute or conflict shall continue, and the Collateral Agent, the Custodial Agent and the Securities
Intermediary, as the case may be, shall not be or become liable in any way to any of the parties hereto for its failure or refusal
to comply with such conflicting claims, demands or instructions. The Collateral Agent, the Custodial Agent and the Securities Intermediary
shall be entitled to refuse to act until either:


 


(a) such conflicting or adverse claims
or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to the Collateral Agent, the Custodial Agent or the Securities Intermediary; or


 


(b) the Collateral Agent, the Custodial
Agent or the Securities Intermediary shall have received security or an indemnity satisfactory to it sufficient to hold it harmless
from and against any and all loss, claim, liability or reasonable out-of-pocket expense which it may without gross negligence or
willful misconduct incur by reason of its acting.


 


The Collateral Agent, the Custodial Agent and the Securities
Intermediary may in addition elect to commence an interpleader action or seek other judicial relief or orders as the Collateral
Agent, the Custodial Agent or the Securities Intermediary may deem necessary. Notwithstanding anything contained herein to the
contrary, none of the Collateral Agent, the Custodial Agent or the Securities Intermediary shall be required to take any action
that is in its opinion contrary to


 





 




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law or to the terms of this Agreement, or which would
in its opinion subject it or any of its officers, employees or directors to liability.


 


Section 15.10.
Resignation of Collateral Agent, the Custodial Agent and the Securities Intermediary. (a) Subject to the appointment and
acceptance of a successor Collateral Agent, Custodial Agent or Securities Intermediary as provided below:


 


(i) the Collateral Agent, the
Custodial Agent or the Securities Intermediary may resign at any time by giving notice thereof to the Company and the Purchase
Contract Agent as attorney-in-fact for the Holders;


 


(ii) the Collateral Agent, the
Custodial Agent or the Securities Intermediary may be removed at any time by the Company upon written notice thereof; and


 


(iii) if the Collateral Agent,
the Custodial Agent or the Securities Intermediary fails to perform any of its material obligations hereunder in any material respect
for a period of not less than 20 calendar days after receiving written notice of such failure by the Purchase Contract Agent and
such failure shall be continuing, the Collateral Agent, the Custodial Agent and the Securities Intermediary may be removed by the
Purchase Contract Agent, acting at the direction of the Holders of a majority in number of the Outstanding Units.


 


The Purchase Contract Agent shall promptly notify the Company
upon the transmission of notice as contemplated by Section 15.10(a)(iii) and any removal of the Collateral Agent, the Custodial
Agent or the Securities Intermediary pursuant to Section 15.10(a)(iii). Upon any such resignation or removal, the Company
shall have the right to appoint a successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be. If
no successor Collateral Agent, Custodial Agent or Securities Intermediary shall have been so appointed and shall have accepted
such appointment within 45 calendar days after the retiring Collateral Agent’s, Custodial Agent’s or Securities Intermediary’s
giving of notice of resignation or the Company’s or the Purchase Contract Agent’s giving notice of such removal, then
the retiring or removed Collateral Agent, Custodial Agent or Securities Intermediary may petition any court of competent jurisdiction,
at the expense of the Company, for the appointment of a successor Collateral Agent, Custodial Agent or Securities Intermediary.
The Collateral Agent, the Custodial Agent and the Securities Intermediary shall each be a bank, banking corporation or a national
banking association which has an office (or an agency office) in New York City with a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Collateral Agent, Custodial Agent or Securities Intermediary hereunder by
a successor Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, such successor Collateral Agent,
Custodial Agent or Securities Intermediary, as the case may be, shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be,
and the retiring Collateral Agent, Custodial Agent or Securities Intermediary, as the case may be, shall take all appropriate action,
subject to payment of any amounts then due and payable to it hereunder, to transfer any money and property held by it hereunder
(including the Collateral) to such successor. The retiring Collateral Agent, Custodial Agent or Securities Intermediary shall,
upon such succession, be discharged from its duties and


 





 




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obligations as Collateral Agent,
Custodial Agent or Securities Intermediary hereunder. After any retiring Collateral Agent’s, Custodial Agent’s or Securities
Intermediary’s resignation hereunder as Collateral Agent, Custodial Agent or Securities Intermediary, the provisions of this
Article 15 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it
was acting as the Collateral Agent, the Custodial Agent or the Securities Intermediary.


 


Any resignation or removal of the Collateral Agent,
the Custodial Agent or the Securities Intermediary hereunder, at a time when such Person is also acting as the Collateral Agent,
the Custodial Agent or the Securities Intermediary, as the case may be, shall be deemed for all purposes of this Agreement as the
simultaneous resignation or removal of the Collateral Agent, the Securities Intermediary or the Custodial Agent, as the case may
be.


 


Section 15.11. Right to Appoint
Agent or Advisor. The Collateral Agent shall have the right to appoint agents or advisors in connection with any of its duties
hereunder, and the Collateral Agent shall not be liable for any action taken or omitted by, or in conclusive reliance upon the
advice of, such agents or advisors selected in good faith.


 


Section 15.12. Survival.
The provisions of this Article 15 shall survive termination of this Agreement and the resignation or removal of the Collateral
Agent, the Custodial Agent or the Securities Intermediary.


 


Section 15.13. Exculpation.
Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Collateral Agent, the Custodial Agent
or the Securities Intermediary or their officers, directors, employees or agents be liable under this Agreement for indirect, special,
punitive, or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, goodwill, reputation,
business opportunity or anticipated saving, whether or not the likelihood of such loss or damage was known to the Collateral Agent,
the Custodial Agent or the Securities Intermediary, or any of them and regardless of the form of action.


 


Section 15.14. Expenses, Etc. The
Company agrees to reimburse the Collateral Agent, the Custodial Agent and the Securities Intermediary for:


 


(a) all out-of-pocket costs and expenses
of the Collateral Agent, the Custodial Agent and the Securities Intermediary (including, without limitation, the reasonable fees
and expenses of counsel and agents to the Collateral Agent, the Custodial Agent and the Securities Intermediary), in connection
with (i) the negotiation, preparation, execution and delivery or performance of this Agreement and (ii) any modification, supplement
or waiver of any of the terms of this Agreement;


 


(b) all costs and expenses of the
Collateral Agent, the Custodial Agent and the Securities Intermediary (including, without limitation, reasonable fees and expenses
of counsel and agents) in connection with (i) any enforcement or proceedings resulting or incurred in connection with causing any
Holder to satisfy its obligations under the Purchase Contracts forming a part of the Units and (ii) the enforcement of this Section
15.14 and Section 15.08;


 


(c) all transfer, stamp, documentary
or other similar taxes, assessments or charges (including any interest and penalties thereon or in connection therewith) levied
by any


 





 




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governmental or revenue authority in respect of this
Agreement or any other document referred to herein and all costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest contemplated hereby; and


 


(d) all reasonable fees and expenses
of any agent or advisor appointed by the Collateral Agent.


 


ARTICLE 16


 


MISCELLANEOUS


 


Section 16.01. Company to Furnish
Purchase Contract Agent Names and Addresses of Holders. (a) The Company shall furnish or cause to be furnished to the Purchase
Contract Agent


 


(i) semiannually, not later than February 1 and August
1 in each year, commencing August 1, 2021, a list, in such form as the Purchase Contract Agent may reasonably require, of the names
and addresses of the Holders of Units as of a date not more than 15 calendar days prior to the delivery thereof, and (ii) at such
other times as the Purchase Contract Agent may request in writing, within 30 calendar days after the receipt by the Company of
any such request, a list of similar form and content as of a date not more than 15 calendar days prior to the time such list is
furnished, excluding from any such list names and addresses previously received by the Purchase Contract Agent.


 


Section 16.02. Preservation of Information;
Communications to Holders . The Purchase Contract Agent shall preserve, in as current a form as is reasonably practicable,
the names and addresses of Holders contained in the most recent list furnished to the Purchase Contract Agent as provided in Section
16.01(a) and the names and addresses of Holders received by the Purchase Contract Agent. The Purchase Contract Agent may dispose
of any list furnished to it as provided in Section 16.01(a) upon receipt of a new list so furnished.


 


Section 16.03.
Defaults, Waiver. The Holders of a majority of the Outstanding Purchase Contracts voting together as one class may, by vote
or consent, on behalf of all of the Holders, waive any past default by the Company and its consequences, except a default:


 


(a)
in the payment on any Purchase Contract, or


 


(b)
in respect of a provision hereof which under Section 8.02 cannot be modified or amended without the consent of the Holder
of each Outstanding Purchase Contract affected.


 


Upon such waiver, any such default
shall cease to exist, and any default by the Company arising therefrom shall be deemed to have been cured, for every purpose of
this Agreement, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.


 


Section 16.04. Purchase Contract
Agent’s Knowledge of Defaults. The Purchase Contract Agent shall not be deemed to have notice or be charged with knowledge
of any Fundamental Change, Termination Event or any default hereunder unless a Responsible Officer of the Purchase Contract Agent
has received written notice from the Company or any Holder of such


 





 




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Fundamental Change, Termination Event or default at
the Corporate Trust Office of the Purchase Contract Agent, and such notice references the Units and this Agreement and identifies
such default.


 


Section 16.05. Security Interest
Absolute. All rights of the Collateral Agent and security interests hereunder, and all obligations of the Holders from time
to time hereunder pursuant to the Pledge, shall be absolute and unconditional irrespective of:


 


(a) any lack of validity or enforceability
of any provision of the Purchase Contracts or the Units or any other agreement or instrument relating thereto;


 


(b) any change in the time, manner
or place of payment of, or any other term of, or any increase in the amount of, all or any of the obligations of Holders of the
Units under the related Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any departure from
any requirement of, this Agreement or any Purchase Contract or any other agreement or instrument relating thereto; or


 


(c) any other circumstance which
might otherwise constitute a defense available to, or discharge of, a borrower, a guarantor or a pledgor.


 


Section 16.06. Notice of Termination
Event. Upon the occurrence of a Termination Event, the Company shall deliver written notice to the Purchase Contract Agent,
the Collateral Agent and the Securities Intermediary.


 


Section 16.07. U.S.A. Patriot Act.
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions,
including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326
of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent and the Securities Intermediary are required to obtain, verify, record and update certain information
relating to individuals and entities which maintain a business relationship with the Purchase Contract Agent, the Collateral Agent,
the Custodial Agent and the Securities Intermediary. Accordingly, each of the parties agree to provide to the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent and the Securities Intermediary, upon their request from time to time such identifying
information and documentation as may be available for such party in order to enable the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent and the Securities Intermediary to comply with Applicable AML Law.


 


[SIGNATURES ON THE FOLLOWING PAGES]


 





 




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


 


 


	 	THE AES CORPORATION
	 	 
	 	 
	 	By:  	/s/ Gustavo Pimenta
	 	 	Name:    	Gustavo Pimenta
	 	 	Title: 	Executive Vice President and Chief Financial Officer


Address for Notices:


 


	 	The AES Corporation
	 	4300 Wilson Boulevard
	 	Arlington, VA 22203
	 	Attention: Ahmed Pasha and Jennifer V. Gillcrist 




     


     


    

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


 


	 	Deutsche Bank Trust Company Americas, as Purchase Contract Agent, attorney-in-fact of the Holders from time to time of the Units, Collateral Agent, Custodial Agent and Securities Intermediary
	 	 
	 	 
	 	By:	/s/ Annie Jaghatspanyan
	 	 	Name:	Annie Jaghatspanyan
	 	 	Title:	Vice President
	 	 	 	 
	 	 	 	 
	 	By:	/s/ Luke Russell
	 	 	Name:	Luke Russell
	 	 	Title:	Assistant Vice President


Address for Notices:


 


	 	Deutsche Bank Trust Company Americas
	 	Trust and Agency Agreement
	 	60 Wall Street, 24th Floor, MS: NYC 60-2405
	 	New York, NY 10005
	 	Attention: Corporates Team: The AES Corporation
	 	Facsimile: (732)-578-4635




     


     


    


 


EXHIBIT A


 


(FORM OF FACE OF CORPORATE UNITS CERTIFICATE)


 


[For inclusion in Global Certificates only—THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”),
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF
A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]


 


	
        No. R-

        

        Number of Corporate Units:

        
	 	
        CUSIP No. 00130H 204

        

        ISIN No. US00130H2040

        



THE AES CORPORATION

Corporate Units


 


This Corporate Units Certificate certifies that [       ]
is the registered Holder of the number of Corporate Units set forth above [For inclusion in Global Certificates only - or such
other number of Corporate Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto], which
number, taken together with the number of all other Outstanding Corporate Units and the number of all Outstanding Treasury Units
and Outstanding Cash Settled Units, shall not exceed 10,430,500. Each Corporate Unit consists of (i) an Applicable Ownership Interest
in Convertible Preferred Stock or an Applicable Ownership Interest in the Treasury Portfolio, subject to the Pledge thereof by
such Holder pursuant to the Purchase Contract and Pledge Agreement and (ii) the rights and obligations of the Holder under one
Purchase Contract with the Company.


 




    A-1


     


    

All capitalized terms used herein without definition herein
and that are defined in the Purchase Contract and Pledge Agreement (as defined on the reverse hereof) have the meaning set forth
therein.


 


Pursuant to the Purchase Contract and Pledge Agreement, the
Applicable Ownership Interest in Convertible Preferred Stock or the Applicable Ownership Interest in the Treasury Portfolio, as
the case may be, constituting part of each Corporate Unit evidenced hereby has been pledged to the Collateral Agent, for the benefit
of the Company, to secure the obligations of the Holder under the Purchase Contract comprising part of such Corporate Unit.


 


All payments, if any, with respect to the Convertible Preferred
Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock or all payments with respect to the
Applicable Ownership Interests in the Treasury Portfolio, as the case may be, constituting part of the Corporate Units shall be
paid on the dates and in the manner set forth in the Purchase Contract and Pledge Agreement.


 


The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Corporate Unit evidenced hereby, an amount (the “Contract Adjustment Payments”)
equal to 6.875% per year of the Stated Amount for the period from and including the immediately preceding Payment Date on which
Contract Adjustment Payments were paid (or if none, March 11, 2021) to but excluding such Payment Date. Such Contract Adjustment
Payments shall be payable in cash, shares of Common Stock or a combination thereof, at the Company’s election, unless the
Company has previously irrevocably elected a Contract Adjustment Payment Method to apply, to the Person in whose name this Corporate
Units Certificate is registered at the close of business on the Record Date for such Payment Date. The Company may, at its option,
defer such Contract Adjustment Payments as described in the Purchase Contract and Pledge Agreement. The Contract Adjustment Payments
are unsecured and will rank subordinate and junior in right of payment to all of the Company’s existing and future Indebtedness.


 


Each Purchase Contract evidenced hereby obligates the Holder
of this Corporate Units Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a Purchase
Price equal to the Stated Amount, a number of shares of Common Stock of the Company, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental
Change Early Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and Pledge Agreement.
The Purchase Price for the shares of Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid earlier,
shall be paid on the Purchase Contract Settlement Date by application of payment received in the Final Remarketing of the shares
of Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock equal to $1,000
per each such share thereof or the Proceeds of the Pledged Applicable Ownership Interests in the Treasury Portfolio, as the case
may be, pledged to secure the obligations under such Purchase Contract of the Holder of the Corporate Units of which such Purchase
Contract is a part.


 


If the book-entry system for the Corporate Units has been terminated,
the Contract Adjustment Payments paid in cash will be payable, at the option of the Company, by check mailed to the


 




    A-2


     


    

address of the Person entitled thereto at such Person’s
address as it appears on the Security Register, or by wire transfer to the account designated by such Person by prior written notice
to the Purchase Contract Agent, given at least ten calendar days prior to the Payment Date.


 


Each Purchase Contract evidenced hereby obligates the Holder
and the Beneficial Owner to agree, for United States federal income tax purposes, to (i) treat the Beneficial Owner’s acquisition
of the Corporate Units as an acquisition of the Convertible Preferred Stock and Purchase Contract constituting each Corporate Unit,
(ii) treat the Applicable Ownership Interests in Convertible Preferred Stock as equity of the Company (iii) allocate, as of the
date hereof, 100% of the purchase price for a Corporate Unit to the Applicable Ownership Interests in Convertible Preferred Stock
and 0% to each Purchase Contract, which will establish the Beneficial Owner’s initial tax basis in each Purchase Contract
as $0 and the Beneficial Owner’s initial tax basis in each Applicable Ownership Interest in Convertible Preferred Stock as
$100 and (iv) treat the Beneficial Owner as the owner of the applicable interests in the Collateral Account, including the Convertible
Preferred Stock.


 


Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.


 


Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual or facsimile signature, this Corporate Units Certificate shall not be entitled to any
benefit under the Purchase Contract and Pledge Agreement or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the Company and the Holder specified above
have caused this instrument to be duly executed.


 


	 	THE AES CORPORATION
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts)
	 	 
	 	 
	 	By:	DEUTSCHE BANK TRUST COMPANY AMERICAS, not individually but solely as attorney-in-fact of such Holder
	 	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 



 


 

	DATED:	 




    A-3


     


    

CERTIFICATE OF AUTHENTICATION

OF PURCHASE CONTRACT AGENT


 


This is one of the Corporate Units Certificates referred to
in the within mentioned Purchase Contract and Pledge Agreement.


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	 	 
	 	By:	 	 
	 	 	Authorized Signatory

                     

                     



	DATED:	 




    A-4


     


    

(REVERSE OF CORPORATE UNITS CERTIFICATE)


 


Each Purchase Contract evidenced hereby is governed by a Purchase
Contract and Pledge Agreement, dated as of March 11, 2021 (as may be supplemented from time to time, the “Purchase Contract
and Pledge Agreement”), between the Company and Deutsche Bank Trust Company Americas, as Purchase Contract Agent (in
such capacity, including its successors thereunder, the “Purchase Contract Agent”) and as Collateral Agent,
Custodial Agent and Securities Intermediary (in such capacities, including its successors thereunder, the “Collateral
Agent”), to which Purchase Contract and Pledge Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase
Contract Agent, the Collateral Agent, the Company, and the Holders and of the terms upon which the Corporate Units Certificates
are, and are to be, executed and delivered.


 


Each Purchase Contract evidenced hereby obligates the Holder
of this Corporate Units Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a price equal
to the Stated Amount, a number of shares of Common Stock equal to the Settlement Rate, unless an Early Settlement, a Fundamental
Change Early Settlement or a Termination Event with respect to the Unit of which such Purchase Contract is a part shall have occurred.


 


No fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts, as provided in Section 5.07 of the Purchase Contract and Pledge Agreement.


 


Each Purchase Contract evidenced hereby that is settled through
Early Settlement or Fundamental Change Early Settlement shall obligate the Holder of the related Corporate Units to purchase at
the Purchase Price, and the Company to sell, a number of shares of Common Stock determined pursuant to the Purchase Contract and
Pledge Agreement.


 


In accordance with the terms of the Purchase Contract and Pledge
Agreement, unless a Termination Event shall have occurred, the Holder of this Corporate Units Certificate shall pay the Purchase
Price for the shares of Common Stock to be purchased pursuant to each Purchase Contract evidenced hereby by effecting an Early
Settlement or, if applicable, a Fundamental Change Early Settlement or from the proceeds of the Applicable Ownership Interests
in the Treasury Portfolio or from the proceeds of the Final Remarketing of the Convertible Preferred Stock underlying the Pledged
Applicable Ownership Interests in Convertible Preferred Stock.


 


As provided in the Purchase Contract and Pledge Agreement, upon
the occurrence of an Unsuccessful Final Remarketing as of the Purchase Contract Settlement Date, each Holder of any Pledged Applicable
Ownership Interests in Convertible Preferred Stock shall be deemed to have automatically delivered the related Convertible Preferred
Stock to the Company in satisfaction of such Holder’s obligations under the related Purchase Contracts, as described in Section
5.02(b)(vii) of the Purchase Contract and Pledge Agreement, unless such Holder elects otherwise.


 


The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received


 




    A-5


     


    

payment of the aggregate Purchase Price for the shares of Common
Stock to be purchased thereunder in the manner set forth in the Purchase Contract and Pledge Agreement.


 


Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder, including, without limitation, the rights of the Holders to receive and the
obligation of the Company to pay any Contract Adjustment Payments, shall terminate if a Termination Event shall occur. Upon the
occurrence of a Termination Event, the Company shall give written notice to the Purchase Contract Agent and to the Holders, at
their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent
shall release the Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock
or the Applicable Ownership Interests in the Treasury Portfolio forming a part of each Corporate Unit from the Pledge. A Corporate
Unit shall thereafter represent the right to receive the Convertible Preferred Stock underlying the Applicable Ownership Interest
in Convertible Preferred Stock or the Applicable Ownership Interests in the Treasury Portfolio in accordance with the terms of
the Purchase Contract and Pledge Agreement.


 


Under the terms of the Purchase Contract and Pledge Agreement,
the Purchase Contract Agent will be entitled to exercise the voting and any other consensual rights pertaining to the Convertible
Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock, but only to the extent instructed
in writing by the Holders. Upon receipt of notice of any meeting at which holders of Convertible Preferred Stock are entitled to
vote or upon any solicitation of consents, waivers or proxies of holders of Convertible Preferred Stock, the Purchase Contract
Agent shall, as soon as practicable thereafter, mail, first class, postage pre-paid, to the Holders of Corporate Units the notice
required by the Purchase Contract and Pledge Agreement.


 


The Corporate Units Certificates are issuable only in registered
form and only in denominations of a single Corporate Unit and any integral multiple thereof. The transfer of any Corporate Units
Certificate will be registered and Corporate Units Certificates may be exchanged as provided in the Purchase Contract and Pledge
Agreement. A Holder who elects to substitute Treasury Securities or Cash for the Convertible Preferred Stock thereby creating Treasury
Units or Cash Settled Units, shall be responsible for any taxes, governmental charges or other fees or expenses payable in connection
therewith. Except as provided in the Purchase Contract and Pledge Agreement, such Corporate Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Corporate Unit in respect of the Convertible Preferred
Stock and Purchase Contract constituting such Corporate Unit may be transferred and exchanged only as a Corporate Unit.


 


Subject to, and in compliance with, the conditions and terms
set forth in the Purchase Contract and Pledge Agreement, the Holder of Corporate Units may effect a Collateral Substitution. From
and after such Collateral Substitution, each Unit for which a Treasury Security secures the Holder’s obligations under the
Purchase Contract shall be referred to as a “Treasury Unit”, and each Unit for which Pledged Cash secures the
Holder’s obligations under the Purchase Contract shall be referred to as a “Cash Settled Units”. A Holder
may make such Collateral Substitution only in integral multiples of 10 Corporate Units for 10 Treasury Units or 10 Cash Settled
Units, as the case may be.


 




    A-6


     


    

Subject to and upon compliance with the provisions of, and certain
exceptions described in, the Purchase Contract and Pledge Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Units may be settled early by effecting an Early Settlement or a Fundamental Change Early Settlement as provided in the Purchase
Contract and Pledge Agreement.


 


Upon registration of transfer of this Corporate Units Certificate,
the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required
by the Purchase Contract Agent pursuant to the Purchase Contract and Pledge Agreement), under the terms of the Purchase Contract
and Pledge Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from the obligations under
the Purchase Contracts evidenced by this Corporate Units Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.


 


The Holder of this Corporate Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the related Purchase Contracts forming part of the Corporate
Units evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any consent to the assumption (i.e., affirmance)
of the Purchase Contracts by the Company or its trustee in the event that the Company becomes the subject of a case under the Bankruptcy
Code, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract and Pledge Agreement, authorizes the Purchase Contract Agent to
enter into and perform the Purchase Contract and Pledge Agreement on its behalf as its attorney-in-fact, and consents to the Pledge
of the Applicable Ownership Interests in Convertible Preferred Stock and the underlying Convertible Preferred Stock or the Applicable
Ownership Interests in the Treasury Portfolio, as the case may be, underlying this Corporate Units Certificate pursuant to the
Purchase Contract and Pledge Agreement. The Holder further covenants and agrees that, to the extent and in the manner provided
in the Purchase Contract and Pledge Agreement, but subject to the terms thereof, any payments with respect the Convertible Preferred
Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock or the Proceeds of the Applicable Ownership
Interests in the Treasury Portfolio, as the case may be, on the Purchase Contract Settlement Date equal to the aggregate Purchase
Price for the related Purchase Contracts shall be paid by the Collateral Agent to the Company in satisfaction of such Holder’s
obligations under the related Purchase Contracts and such Holder shall acquire no right, title or interest in such payments.


 


Subject to certain exceptions, the provisions of the Purchase
Contract and Pledge Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts.


 


The Purchase Contracts shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the conflicts of law provisions thereof to the extent
a different law would govern as a result.


 


The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.


 




    A-7


     


    

Prior to due presentment of this Certificate for registration
of transfer, the Company, the Purchase Contract Agent and any agent of the Company or the Purchase Contract Agent may treat the
Person in whose name this Corporate Units Certificate is registered as the owner of the Corporate Units evidenced hereby for the
purpose of receiving payments of Contract Adjustment Payments (subject to any applicable record date), performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract Agent nor any such agent shall be affected by notice
to the contrary.


 


A copy of the Purchase Contract and Pledge Agreement is available
for inspection at the Corporate Trust Office of the Purchase Contract Agent during regular business hours.


 




    A-8


     


    

ABBREVIATIONS


 


The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:


 


TEN COM: as tenants in common


 


	 	 	 	 	 	 
	UNIF GIFT MN ACT:	 	 	Custodian	 	 
	 	(minor)	 	 	 	(cust)


 


Under Uniform Gifts to Minors Act of


 


TENANT: as tenants by the entireties


 


JT TEN: as joint tenants with right of survivorship and not
as tenants in common


 


Additional abbreviations may also be used though not in the
above list.


 


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto


 


	
 


	(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
	 
	
 


	(Please Print or Type Name and Address Including Postal Zip Code of Assignee)


 


the within Corporate Units Certificates and all rights thereunder,
hereby irrevocably constituting and appointing attorney, to transfer said Corporate Units Certificates on the books of The AES
Corporation with full power of substitution in the premises


 


	 	 	 	 	 	 	 	 	 	 	 
	Dated:	 	 	 	 	 	Signature	 	 	 	 
	 	 	 	 	 	 	NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Corporate Units Certificates in every particular, without alteration or enlargement or any change whatsoever.
	 	 	Signature Guarantee:	 	 	 	 




    A-9


     


    

SETTLEMENT INSTRUCTIONS


 


The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract Settlement Date of the Purchase Contracts underlying
the number of Corporate Units evidenced by this Corporate Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.


 


	 	 	 
	Dated:	 	(if assigned to another person)
	If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:	 	
        REGISTERED HOLDER

        

        Please print name and address of registered Holder:

         

	 	 	 
	 	 	 
	
	 	

	Name	 	Name
	 	 	 
	Address	 	Address
	
	 	

	
	 	

	
	 	



 


 


	Social Security or other Taxpayer Identification Number, if any	 
	 	 
	
	 
	Signature	 
	Signature Guarantee:	 




    A-10


     


    

ELECTION TO SETTLE EARLY/FUNDAMENTAL
CHANGE EARLY SETTLEMENT


 


The undersigned Holder of this Corporate Units Certificate hereby
irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the terms
of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts underlying the number of Corporate Units evidenced
by this Corporate Units Certificate specified below. The option to effect [Early Settlement] [Fundamental Change Early Settlement]
may be exercised only with respect to Purchase Contracts underlying Corporate Units in multiples of 10 Corporate Units or an integral
multiple thereof. The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon such [Early Settlement]
[Fundamental Change Early Settlement] be registered in the name of, and delivered, together with any Corporate Units Certificate
representing any Corporate Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related
Purchase Contracts is not effected, to the undersigned at the address indicated below unless a different name and address have
been indicated below. Shares of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred
Stock or the Applicable Ownership Interests in the Treasury Portfolio, as the case may be, deliverable upon such [Early Settlement]
[Fundamental Change Early Settlement] will be transferred in accordance with the transfer instructions set forth below. If shares
are to be registered in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.


 


	 	 	 	 	 	 	 
	Dated:	 	 	 	Signature	 	 


Signature Guarantee: ______________________


 


Number of Units evidenced hereby as to which [Early Settlement]
[Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:


 


	 	 	 
	If shares of Common Stock or Corporate Units Certificates are to be registered in the name of and delivered to and Pledged Convertible Preferred Shares are to be transferred to a Person other than the Holder, please print such Person’s name and address:	 	
        REGISTERED HOLDER

         

        Please print name and address of registered Holder:

         

	 	 
	 	 	 
	Name	 	Name
	 	 	 
	Address	 	Address
	 	 	 
	 	 	 
	 	 	 


	 
	Social Security or other Taxpayer Identification Number, if any
	 
	 


Transfer Instructions for Convertible Preferred Stock underlying
Pledged Applicable Ownership Interests in Convertible Preferred Stock or the Applicable Ownership Interests in the Treasury


 




    A-11


     


    

Portfolio, as the case may be, transferable upon [Early Settlement]
[Fundamental Change Early Settlement]:


 




    A-12


     


    

[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF INCREASES OR DECREASES
IN


 


GLOBAL CERTIFICATE


 


The initial number of Corporate Units evidenced by this Global
Certificate is _________. The following increases or decreases in this Global Certificate have been made:


 


	 	 	 	 	 	 	 	 	 
	Date	 	
        Amount of increase in

        number of Corporate


        Units evidenced by the


        Global Certificate

	 	
        Amount of decrease in

        number of Corporate


        Units evidenced by the

        Global Certificate

	 	
        Number of Corporate


        Units evidenced by


        this Global Certificate

        following such


        decrease or increase

	 	
        Signature of


        authorized signatory


        of Purchase Contract


        Agent






    A-13


     


    


 


EXHIBIT B


 


(FORM OF FACE OF TREASURY UNITS CERTIFICATE)


 


[For inclusion in Global Certificates only—THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”),
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF
A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]


 


	No. TR– 	CUSIP No. 00130H 303
	Number of Treasury Units:	ISIN No. US00130H3030


THE AES CORPORATION


 


Treasury Units


 


This Treasury Units Certificate certifies that [____] is the
registered Holder of the number of Treasury Units set forth above [For inclusion in Global Certificates only—or such other
number of Treasury Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto], which number,
taken together with the number of all other Outstanding Treasury Units and the number of all Outstanding Corporate Units and Outstanding
Cash Settled Units, shall not exceed 10,430,500. Each Treasury Unit consists of (i) an undivided beneficial ownership interest
in a Treasury Security, subject to the Pledge of such Treasury Security by such Holder pursuant to the Purchase Contract and Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase Contract with the Company.


 




    B-1


     


    

All capitalized terms used herein without definition herein
and that are defined in the Purchase Contract and Pledge Agreement (as defined on the reverse hereof) have the meaning set forth
therein.


 


Pursuant to the Purchase Contract and Pledge Agreement, the
Treasury Security underlying each Treasury Unit evidenced hereby has been pledged to the Collateral Agent, for the benefit of the
Company, to secure the obligations of the Holder under the Purchase Contract comprising part of such Treasury Unit.


 


The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Treasury Unit evidenced hereby, an amount (the “Contract Adjustment Payments”)
equal to 6.875% per year of the Stated Amount for the period from and including the immediately preceding Payment Date on which
Contract Adjustment Payments were paid (or if none, March 11, 2021) to but excluding such Payment Date. Such Contract Adjustment
Payments shall be payable in cash, shares of Common Stock or a combination thereof, at the Company’s election, unless the
Company has previously irrevocably elected a Contract Adjustment Payment Method to apply, to the Person in whose name this Treasury
Units Certificate is registered at the close of business on the Record Date for such Payment Date. The Company may, at its option,
defer such Contract Adjustment Payments as described in the Purchase Contract and Pledge Agreement. The Contract Adjustment Payments
are unsecured and will rank subordinate and junior in right of payment to all of the Company’s existing and future Indebtedness.


 


Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury Units Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a Purchase
Price equal to the Stated Amount, a number of shares of Common Stock of the Company, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental
Change Early Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and Pledge Agreement.
The Purchase Price for the shares of Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid earlier,
shall be paid on the Purchase Contract Settlement Date by application of the proceeds from the Treasury Security pledged to secure
the obligations under such Purchase Contract of the Holder of the Treasury Units of which such Purchase Contract is a part.


 


Contract Adjustment Payments paid in cash will be payable at
the office of the Purchase Contract Agent in New York City, except that Contract Adjustment Payments with respect to Global Certificates
will be made by wire transfer of immediately available funds to the Depositary. If the book-entry system for the Corporate Units
has been terminated, the Contract Adjustment Payments paid in cash will be payable, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register, or by wire
transfer to the account designated by such Person by prior written notice to the Purchase Contract Agent, given at least ten calendar
days prior to the Payment Date.


 


Each Purchase Contract evidenced hereby obligates the Holder
and the Beneficial Owner to agree, for United States federal income tax purposes, to (i) treat the Beneficial Owner’s acquisition
of the Treasury Units as an acquisition of the Treasury Security and Purchase


 




    B-2


     


    

Contracts constituting the Treasury Units and (ii) treat the
Beneficial Owner as the owner of the applicable Treasury Security.


 


Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.


 


Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual or facsimile signature, this Treasury Units Certificate shall not be entitled to any benefit
under the Purchase Contract and Pledge Agreement or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the Company and the
Holder specified above have caused this instrument to be duly executed.


 


	 	THE AES CORPORATION
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts)
	 	 
	 	 
	 	By:	DEUTSCHE BANK TRUST COMPANY AMERICAS, not individually but solely as attorney-in-fact of such Holder
	 	 	 
	 	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 



 


 

	DATED:	 	 




    B-3


     


    

CERTIFICATE OF AUTHENTICATION OF


 


PURCHASE CONTRACT AGENT


 


This is one of the Treasury Unit Certificates referred to in
the within mentioned Purchase Contract and Pledge Agreement.


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	 	 
	 	By:	 
	 	 	Authorized Signatory



 


 

	DATED:	 	 




    B-4


     


    

(REVERSE OF TREASURY UNITS CERTIFICATE)


 


Each Purchase Contract evidenced hereby is governed by a Purchase
Contract and Pledge Agreement, dated as of March 11, 2021 (as may be supplemented from time to time, the “Purchase Contract
and Pledge Agreement”), between the Company and Deutsche Bank Trust Company Americas, as Purchase Contract Agent (in
such capacity, including its successors thereunder, the “Purchase Contract Agent”) and as Collateral Agent,
Custodial Agent and Securities Intermediary (in such capacities, including its successors thereunder, the “Collateral
Agent”), to which Purchase Contract and Pledge Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase
Contract Agent, the Collateral Agent, the Company and the Holders and of the terms upon which the Treasury Units Certificates are,
and are to be, executed and delivered.


 


Each Purchase Contract evidenced hereby obligates the Holder
of this Treasury Units Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a price equal
to the Stated Amount, a number of shares of Common Stock equal to the Settlement Rate, unless an Early Settlement, a Fundamental
Change Early Settlement or a Termination Event with respect to the Units of which such Purchase Contract is a part shall have occurred.


 


No fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts, as provided in Section 5.07 of the Purchase Contract and Pledge Agreement.


 


Each Purchase Contract evidenced hereby that is settled through
Early Settlement or Fundamental Change Early Settlement shall obligate the Holder of the related Treasury Units to purchase at
the Purchase Price and the Company to sell, a number of shares of Common Stock determined pursuant to the Purchase Contract and
Pledge Agreement.


 


In accordance with the terms of the Purchase Contract and Pledge
Agreement, unless a Termination Event shall have occurred, the Holder of this Treasury Units Certificate shall pay the Purchase
Price for the shares of Common Stock purchased pursuant to each Purchase Contract evidenced hereby by effecting an Early Settlement
or, if applicable, a Fundamental Change Early Settlement of each such Purchase Contract or by applying the proceeds of the Treasury
Security underlying such Holder’s Treasury Unit equal to the Purchase Price for such Purchase Contract to the purchase of
the Common Stock.


 


The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment
of the aggregate Purchase Price for the shares of Common Stock to be purchased thereunder in the manner set forth in the Purchase
Contract and Pledge Agreement.


 


Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder, including, without limitation, the rights of the Holders to receive and the
obligation of the Company to pay any Contract Adjustment Payments, shall terminate if a Termination Event shall occur. Upon the
occurrence of a Termination Event, the Company shall give written notice to the Purchase Contract Agent and to the Holders, at
their addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the


 




    B-5


     


    

Collateral Agent shall release the Treasury Security underlying
each Treasury Unit from the Pledge. A Treasury Unit shall thereafter represent the right to receive the Treasury Security underlying
such Treasury Unit, in accordance with the terms of the Purchase Contract and Pledge Agreement.


 


The Treasury Units Certificates are issuable only in registered
form and only in denominations of a single Treasury Unit and any integral multiple thereof. The transfer of any Treasury Units
Certificate will be registered and Treasury Units Certificates may be exchanged as provided in the Purchase Contract and Pledge
Agreement. A Holder who elects to substitute Convertible Preferred Stock for the Treasury Security, thereby recreating Corporate
Units, shall be responsible for any taxes, governmental charges or other fees or expenses payable in connection therewith. Except
as provided in the Purchase Contract and Pledge Agreement, such Treasury Unit shall not be separable into its constituent parts,
and the rights and obligations of the Holder of such Treasury Unit in respect of the Treasury Security and the Purchase Contract
constituting such Treasury Unit may be transferred and exchanged only as a Treasury Unit.


 


Subject to, and in compliance with, the conditions and terms
set forth in the Purchase Contract and Pledge Agreement, the Holder of Treasury Units may effect a Collateral Substitution. From
and after such Collateral Substitution, each Unit for which Pledged Convertible Preferred Shares secure the Holder’s obligations
under the Purchase Contract shall be referred to as a “Corporate Unit”. A Holder may make such Collateral Substitution
only in integral multiples of 10 Treasury Units for 10 Corporate Units.


 


Subject to and upon compliance with the provisions of, and certain
exceptions described in, the Purchase Contract and Pledge Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Units may be settled early by effecting an Early Settlement or a Fundamental Change Early Settlement as provided in the Purchase
Contract and Pledge Agreement.


 


Upon registration of transfer of this Treasury Units Certificate,
the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required
by the Purchase Contract Agent pursuant to the Purchase Contract and Pledge Agreement), under the terms of the Purchase Contract
and Pledge Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from the obligations under
the Purchase Contracts evidenced by this Treasury Units Certificate. The Company covenants and agrees, and the Holder, by its acceptance
hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.


 


The Holder of this Treasury Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the related Purchase Contracts forming part of the Treasury
Units evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any consent to the assumption (i.e., affirmance)
of the Purchase Contracts by the Company or its trustee in the event that the Company becomes the subject of a case under the Bankruptcy
Code, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations under such Purchase
Contracts, consents to the provisions of the Purchase Contract and Pledge Agreement, authorizes the Purchase Contract Agent to
enter into and perform the Purchase Contract and Pledge Agreement on its behalf as its attorney-in-fact, and consents to the


 




    B-6


     


    

Pledge of the Treasury Security underlying this Treasury Units
Certificate pursuant to the Purchase Contract and Pledge Agreement. The Holder further covenants and agrees, that, to the extent
and in the manner provided in the Purchase Contract and Pledge Agreement, but subject to the terms thereof, payments in respect
of the Treasury Security on the Purchase Contract Settlement Date equal to the aggregate Purchase Price for the related Purchase
Contracts shall be paid by the Collateral Agent to the Company in satisfaction of such Holder’s obligations under the related
Purchase Contracts and such Holder shall acquire no right, title or interest in such payments.


 


Subject to certain exceptions, the provisions of the Purchase
Contract and Pledge Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts.


 


The Purchase Contracts shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the conflicts of law provisions thereof to the extent
a different law would govern as a result.


 


The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.


 


Prior to due presentment of this Certificate for registration
of transfer, the Company, the Purchase Contract Agent and any agent of the Company or the Purchase Contract Agent may treat the
Person in whose name this Treasury Units Certificate is registered as the owner of the Treasury Units evidenced hereby for the
purpose of receiving payments of Contract Adjustment Payments (subject to any applicable record date), performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract Agent nor any such agent shall be affected by notice
to the contrary.


 


A copy of the Purchase Contract and Pledge Agreement is available
for inspection at the Corporate Trust Office of the Purchase Contract Agent during regular business hours.


 




    B-7


     


    

ABBREVIATIONS


 


The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:


 


TEN COM: as tenants in common


 


UNIF GIFT MN ACT: Custodian


 


(cust) (minor)


 


Under Uniform Gifts to Minors Act of


 


TENANT: as tenants by the entireties


 


JT TEN: as joint tenants with right of survivorship and not
as tenants in common


 


Additional abbreviations may also be used though not in the
above list.


 


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto


 


	

	 
	(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
	 
	

	(Please Print or Type Name and Address Including Postal Zip Code of Assignee)



 


 

the within Treasury Units Certificates and all rights thereunder,
hereby irrevocably constituting and appointing attorney, to transfer said Treasury Units Certificates on the books of The AES Corporation,
with full power of substitution in the premises


 


	 	 	 
	Dated:	 	Signature 
	 	 	
        NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Treasury Units Certificates in every particular, without alteration or
enlargement or any change whatsoever.

         

         



Signature Guarantee: _____________________________


 




    B-8


     


    

SETTLEMENT INSTRUCTIONS


 


The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract Settlement Date of the Purchase Contracts underlying
the number of Treasury Units evidenced by this Treasury Units Certificate be registered in the name of, and delivered, together
with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned, the undersigned
will pay any transfer tax payable incident thereto.


 


	 	 	 
	Dated:	 	(if assigned to another person)
	 	 
	If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:	 	
        REGISTERED HOLDER

         

        Please print name and address of registered Holder:

         

	 	 	 
	Name	 	Name
	 	 	 
	Address	 	Address
	 	 	 
	 	 	 
	 	 	 
	 	 
	Social Security or other Taxpayer Identification Number, if any	 	 
	Signature	 	 


 


 


Signature Guarantee: _____________________________


 




    B-9


     


    

ELECTION TO SETTLE EARLY/FUNDAMENTAL
CHANGE EARLY SETTLEMENT


 


The undersigned Holder of this Treasury Units Certificate hereby
irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the terms
of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts underlying the number of Treasury Units evidenced
by this Treasury Units Certificate specified below. The option to effect [Early Settlement] [Fundamental Change Early Settlement]
may be exercised only with respect to Purchase Contracts underlying Treasury Units in multiples of 10 Treasury Units or an integral
multiple thereof. The undersigned Holder directs that a certificate for shares of Common Stock deliverable upon such [Early Settlement]
[Fundamental Change Early Settlement] be registered in the name of, and delivered, together with any Treasury Units Certificate
representing any Treasury Units evidenced hereby as to which [Early Settlement] [Fundamental Change Early Settlement] of the related
Purchase Contracts is not effected, to the undersigned at the address indicated below unless a different name and address have
been indicated below. The relevant Treasury Security deliverable upon such [Early Settlement] [Fundamental Change Early Settlement]
will be transferred in accordance with the transfer instructions set forth below. If shares are to be registered in the name of
a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto.


 


	 	 	 
	Dated: 	 	Signature 



 

	Signature Guarantee: 		 



 

Number of Units evidenced hereby as to which [Early Settlement]
[Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:


 


	 	 	 
	If shares of Common Stock or Treasury Units Certificates are to be registered in the name of and delivered to and Proceeds of the relevant Treasury Security are to be transferred to a Person other than the Holder, please print such Person’s name and address:	 	
        REGISTERED HOLDER

        

        Please print name and address of registered Holder:

         

	
        Name

	 	
        Name


	 	 
	
        Address

	 	
        Address


	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 
	Social Security or other Taxpayer Identification Number, if any	 	 


 


REGISTERED HOLDER


 


Transfer Instructions for the applicable Treasury Security Transferable
upon [Early Settlement] [Fundamental Change Early Settlement]:


 




    B-10


     


    

[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF INCREASES OR DECREASES
IN


 


GLOBAL CERTIFICATE


 


The initial number of Treasury Units evidenced by this Global
Certificate is _________. The following increases or decreases in this Global Certificate have been made:


 


	 	 	 	 	 	 	 	 	 
	Date	 	
        Amount of increase in

        number of Treasury


        Units evidenced by the


        Global Certificate

	 	
        Amount of decrease in

        number of Treasury


        Units evidenced by the


        Global Certificate

	 	
        Number of Treasury

        Units evidenced by


        this Global Certificate

        following such


        decrease or increase

	 	
        Signature of


        authorized signatory


        of Purchase Contract

        Agent






    B-11


     


    


 


EXHIBIT C


 


(FORM OF FACE OF CASH SETTLED UNITS
CERTIFICATE)


 


[For inclusion in Global Certificates only—THIS CERTIFICATE
IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE PURCHASE CONTRACT AND PLEDGE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE “DEPOSITARY”),
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF
A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AND PLEDGE
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]


 


	No. CA– 	CUSIP No. 00130H 402
	Number of Cash Settled Units: 	ISIN No. US00130H4020


THE AES CORPORATION


 


Cash Settled Units


 


This Cash Settled Units Certificate certifies that [____] is
the registered Holder of the number of Cash Settled Units set forth above [For inclusion in Global Certificates only—or such
other number of Cash Settled Units reflected in the Schedule of Increases or Decreases in Global Certificate attached hereto],
which number, taken together with the number of all other Outstanding Cash Settled Units and the number of all Outstanding Corporate
Units and Outstanding Treasury Units, shall not exceed 10,430,500. Each Cash Settled Unit consists of (i) $100 in Cash, subject
to the Pledge therof by such Holder pursuant to the Purchase Contract and Pledge Agreement, and (ii) the rights and obligations
of the Holder under one Purchase Contract with the Company.


 




    C-1


     


    

All capitalized terms used herein without definition herein
and that are defined in the Purchase Contract and Pledge Agreement (as defined on the reverse hereof) have the meaning set forth
therein.


 


Pursuant to the Purchase Contract and Pledge Agreement, the
Cash underlying each Cash Settled Unit evidenced hereby has been pledged to the Collateral Agent, for the benefit of the Company,
to secure the obligations of the Holder under the Purchase Contract comprising part of such Cash Settled Unit.


 


The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Cash Settled Unit evidenced hereby, an amount (the “Contract Adjustment Payments”)
equal to 6.875% per year of the Stated Amount for the period from and including the immediately preceding Payment Date on which
Contract Adjustment Payments were paid (or if none, March 11, 2021) to but excluding such Payment Date. Such Contract Adjustment
Payments shall be payable in cash, shares of Common Stock or a combination thereof, at the Company’s election, unless the
Company has previously irrevocably elected a Contract Adjustment Payment Method to apply, to the Person in whose name this Cash
Settled Units Certificate is registered at the close of business on the Record Date for such Payment Date. The Company may, at
its option, defer such Contract Adjustment Payments as described in the Purchase Contract and Pledge Agreement. The Contract Adjustment
Payments are unsecured and will rank subordinate and junior in right of payment to all of the Company’s existing and future
Indebtedness.


 


Each Purchase Contract evidenced hereby obligates the Holder
of this Cash Settled Units Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a Purchase
Price equal to the Stated Amount, a number of shares of Common Stock of the Company, equal to the Settlement Rate, unless on or
prior to the Purchase Contract Settlement Date there shall have occurred a Termination Event, an Early Settlement or a Fundamental
Change Early Settlement with respect to such Purchase Contract, all as provided in the Purchase Contract and Pledge Agreement.
The Purchase Price for the shares of Common Stock purchased pursuant to each Purchase Contract evidenced hereby shall be paid on
the Purchase Contract Settlement Date by application of the Cash pledged to secure the obligations under such Purchase Contract
of the Holder of the Cash Settled Units of which such Purchase Contract is a part.


 


Contract Adjustment Payments paid in cash will be payable at
the office of the Purchase Contract Agent in New York City, except that Contract Adjustment Payments with respect to Global Certificates
will be made by wire transfer of immediately available funds to the Depositary. If the book-entry system for the Corporate Units
has been terminated, the Contract Adjustment Payments paid in cash will be payable, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such Person’s address as it appears on the Security Register, or by wire
transfer to the account designated by such Person by prior written notice to the Purchase Contract Agent, given at least ten calendar
days prior to the Payment Date.


 


Each Purchase Contract evidenced hereby obligates the Holder
and the Beneficial Owner to agree, for United States federal income tax purposes, to (i) treat the Beneficial Owner’s


 




    C-2


     


    

acquisition of the Cash Settled Units as an acquisition of the
Cash and Purchase Contracts constituting the Cash Settled Units and (ii) treat the Beneficial Owner as the owner of the Cash.


 


Reference is hereby made to the further provisions set forth
on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.


 


Unless the certificate of authentication hereon has been executed
by the Purchase Contract Agent by manual or facsimile signature, this Cash Settled Units Certificate shall not be entitled to any
benefit under the Purchase Contract and Pledge Agreement or be valid or obligatory for any purpose.


 


IN WITNESS WHEREOF, the Company and the
Holder specified above have caused this instrument to be duly executed.


 


	 	THE AES CORPORATION
	 	 
	 	
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	HOLDER SPECIFIED ABOVE (as to obligations of such Holder under the Purchase Contracts)
	 	 
	 	 
	 	By:	DEUTSCHE BANK TRUST COMPANY AMERICAS, not individually but solely as attorney-in-fact of such Holder
	 	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 


	DATED: 		 




    C-3


     


    

CERTIFICATE OF AUTHENTICATION OF


 


PURCHASE CONTRACT AGENT


 


This is one of the Cash Settled Units referred to in the within
mentioned Purchase Contract and Pledge Agreement.


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	 	 
	 	By:	 	 
	 	 	Authorized Signatory

                                             




 





	DATED: 		 


 



    C-4


     


    

(REVERSE OF CASH SETTLED UNITS CERTIFICATE)


 


Each Purchase Contract evidenced hereby is governed by a Purchase
Contract and Pledge Agreement, dated as of March 11, 2021 (as may be supplemented from time to time, the “Purchase Contract
and Pledge Agreement”), between the Company and Deutsche Bank Trust Company Americas, as Purchase Contract Agent (in
such capacity, including its successors thereunder, the “Purchase Contract Agent”) and as Collateral Agent,
Custodial Agent and Securities Intermediary (in such capacities, including its successors thereunder, the “Collateral
Agent”), to which Purchase Contract and Pledge Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Purchase
Contract Agent, the Collateral Agent, the Company and the Holders and of the terms upon which the Cash Settled Units Certificates
are, and are to be, executed and delivered.


 


Each Purchase Contract evidenced hereby obligates the Holder
of this Cash Settled Units Certificate to purchase, and the Company to sell, on the Purchase Contract Settlement Date at a price
equal to the Stated Amount, a number of shares of Common Stock equal to the Settlement Rate, unless an Early Settlement, a Fundamental
Change Early Settlement or a Termination Event with respect to the Unit of which such Purchase Contract is a part shall have occurred.


 


No fractional shares of Common Stock will be issued upon settlement
of Purchase Contracts, as provided in Section 5.07 of the Purchase Contract and Pledge Agreement.


 


Each Purchase Contract evidenced hereby that is settled through
Early Settlement or Fundamental Change Early Settlement shall obligate the Holder of the related Cash Settled Units to purchase
at the Purchase Price and the Company to sell, a number of shares of Common Stock determined pursuant to the Purchase Contract
and Pledge Agreement.


 


In accordance with the terms of the Purchase Contract and Pledge
Agreement, the Holder of this Cash Settled Units Certificate shall pay the Purchase Price for the shares of Common Stock to be
purchased pursuant to each Purchase Contract evidenced hereby by effecting an Early Settlement or, if applicable, a Fundamental
Change Early Settlement of each such Purchase Contract or by applying the Cash underlying such Holder’s Cash Settled Unit
equal to the Purchase Price for such Purchase Contract to the purchase of the Common Stock.


 


The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to the Holder unless it shall have received payment
of the aggregate Purchase Price for the shares of Common Stock to be purchased thereunder in the manner set forth in the Purchase
Contract and Pledge Agreement.


 


Each Purchase Contract evidenced hereby and all obligations
and rights of the Company and the Holder thereunder, including, without limitation, the rights of the Holders to receive and the
obligation of the Company to pay any Contract Adjustment Payments, shall terminate if a Termination Event shall occur. Upon the
occurrence of a Termination Event, the Company shall give written notice to the Purchase Contract Agent and the Holders, at their
addresses as they appear in the Security Register. Upon and after the occurrence of a Termination Event, the Collateral Agent shall
release the Cash underlying each Cash Settled Unit from the Pledge. A


 




    C-5


     


    

\Cash Settled Unit shall thereafter represent the right to receive
the Cash underlying such Cash Settled Unit, in accordance with the terms of the Purchase Contract and Pledge Agreement.


 


The Cash Settled Units Certificates are issuable only in registered
form and only in denominations of a single Cash Settled Unit and any integral multiple thereof. The transfer of any Cash Settled
Units Certificate will be registered and Cash Settled Units Certificates may be exchanged as provided in the Purchase Contract
and Pledge Agreement. Except as provided in the Purchase Contract and Pledge Agreement, a Cash Settled Unit shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such Cash Settled Unit in respect of the Cash and the
Purchase Contract constituting such Cash Settled Unit may be transferred and exchanged only as a Cash Settled Unit.


 


Subject to and upon compliance with the provisions of, and certain
exceptions described in, the Purchase Contract and Pledge Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Units may be settled early by effecting an Early Settlement or a Fundamental Change Early Settlement as provided in the Purchase
Contract and Pledge Agreement.


 


Upon registration of transfer of this Cash Settled Units Certificate,
the transferee shall be bound (without the necessity of any other action on the part of such transferee, except as may be required
by the Purchase Contract Agent pursuant to the Purchase Contract and Pledge Agreement), under the terms of the Purchase Contract
and Pledge Agreement and the Purchase Contracts evidenced hereby and the transferor shall be released from the obligations under
the Purchase Contracts evidenced by this Cash Settled Units Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions of this paragraph.


 


The Holder of this Cash Settled Units Certificate, by its acceptance
hereof, authorizes the Purchase Contract Agent to enter into and perform the related Purchase Contracts forming part of the Cash
Settled Units evidenced hereby on its behalf as its attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event that the Company becomes the subject of a case
under the Bankruptcy Code, agrees to be bound by the terms and provisions thereof, covenants and agrees to perform its obligations
under such Purchase Contracts, consents to the provisions of the Purchase Contract and Pledge Agreement, authorizes the Purchase
Contract Agent to enter into and perform the Purchase Contract and Pledge Agreement on its behalf as its attorney-in-fact, and
consents to the Pledge of the Cash underlying this Cash Settled Units Certificate pursuant to the Purchase Contract and Pledge
Agreement. The Holder further covenants and agrees, that, to the extent and in the manner provided in the Purchase Contract and
Pledge Agreement, but subject to the terms thereof, on the Purchase Contract Settlement Date an amount of Pledged Cash equal to
the aggregate Purchase Price for the related Purchase Contracts shall be paid by the Collateral Agent to the Company in satisfaction
of such Holder’s obligations under such Purchase Contracts.


 


Subject to certain exceptions, the provisions of the Purchase
Contract and Pledge Agreement may be amended with the consent of the Holders of a majority of the Purchase Contracts.


 




    C-6


     


    

The Purchase Contracts shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the conflicts of law provisions thereof to the extent
a different law would govern as a result.


 


The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.


 


Prior to due presentment of this Certificate for registration
of transfer, the Company, the Purchase Contract Agent and any agent of the Company or the Purchase Contract Agent may treat the
Person in whose name this Cash Settled Units Certificate is registered as the owner of the Cash Settled Units evidenced hereby
for the purpose of receiving payments of Contract Adjustment Payments (subject to any applicable record date), performance of the
Purchase Contracts and for all other purposes whatsoever, whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Purchase Contract Agent nor any such agent shall be affected by notice
to the contrary.


 


A copy of the Purchase Contract and Pledge Agreement is available
for inspection at the offices of the Purchase Contract Agent during regular business hours.


 




    C-7


     


    

ABBREVIATIONS


 


The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:


 


TEN COM: as tenants in common


 


UNIF GIFT MN ACT: Custodian


 


(cust) (minor)


 


Under Uniform Gifts to Minors Act of


 


TENANT: as tenants by the entireties


 


JT TEN: as joint tenants with right of survivorship and not
as tenants in common


 


Additional abbreviations may also be used though not in the
above list.


 


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto


 


	

	 
	(Please insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)
	 
	

	(Please Print or Type Name and Address Including Postal Zip Code of Assignee)



 

the within Cash Settled Units Certificates and all rights thereunder,
hereby irrevocably constituting and appointing attorney, to transfer said Cash Settled Units Certificates on the books of The AES
Corporation, with full power of substitution in the premises


 


	 	 	 
	Dated: 	 	Signature 
	 	 	
        NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Cash Settled Units Certificates in every particular, without alteration
or enlargement or any change whatsoever.

         

	 	 	 


Signature Guarantee: __________________________


 




    C-8


     


    

SETTLEMENT INSTRUCTIONS


 


The undersigned Holder directs that a certificate for shares
of Common Stock deliverable upon settlement on or after the Purchase Contract Settlement Date of the Purchase Contracts underlying
the number of Cash Settled Units evidenced by this Cash Settled Units Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at the address indicated below unless a different
name and address have been indicated below. If shares are to be registered in the name of a Person other than the undersigned,
the undersigned will pay any transfer tax payable incident thereto.


 


	 	 	 
	Dated:	 	(if assigned to another person)
	 	 
	If shares are to be registered in the name of and delivered to a Person other than the Holder, please (i) print such Person’s name and address and (ii) provide a guarantee of your signature:	 	
        REGISTERED HOLDER

         

        Please print name and address of registered Holder:

         

	 	 
	
        Name

	 	
        Name


	Address	 	Address
	 	 	 
	 	 	 
	Social Security or other Taxpayer Identification Number, if any	 	 
	Signature	 	 



 

Signature Guarantee: _______________________


 




    C-9


     


    

ELECTION TO SETTLE EARLY/FUNDAMENTAL CHANGE EARLY SETTLEMENT


 


The undersigned Holder of this Cash Settled Units Certificate
hereby irrevocably exercises the option to effect [Early Settlement] [Fundamental Change Early Settlement] in accordance with the
terms of the Purchase Contract and Pledge Agreement with respect to the Purchase Contracts underlying the number of Cash Settled
Units evidenced by this Cash Settled Units Certificate specified below. The option to effect [Early Settlement] [Fundamental Change
Early Settlement] may be exercised only with respect to Purchase Contracts underlying Cash Settled Units in multiples of 10 Cash
Settled Units or an integral multiple thereof. The undersigned Holder directs that a certificate for shares of Common Stock deliverable
upon such [Early Settlement] [Fundamental Change Early Settlement] be registered in the name of, and delivered, together with any
Cash Settled Units Certificate representing any Cash Settled Units evidenced hereby as to which [Early Settlement] [Fundamental
Change Early Settlement] of the related Purchase Contracts is not effected, to the undersigned at the address indicated below unless
a different name and address have been indicated below. Pledged Cash deliverable upon such [Early Settlement] [Fundamental Change
Early Settlement] will be transferred in accordance with the transfer instructions set forth below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will pay any transfer tax payable incident thereto.


 


	 	 	 
	Dated: 	 	Signature 



 

Signature Guarantee: __________________________


 


Number of Units evidenced hereby as to which [Early Settlement]
[Fundamental Change Early Settlement] of the related Purchase Contracts is being elected:


 


	If shares of Common Stock or Cash Settled Units Certificates are to be registered in the name of and delivered to and Pledged Cash is to be transferred to a Person other than the Holder, please print such Person’s name and address:	 	
        REGISTERED HOLDER

        

        Please print name and address of registered Holder:

         

	Name	 	Name
	Address	 	Address
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	Social Security or other Taxpayer Identification Number, if any	 	 	 	 
	REGISTERED HOLDER	 	 	 	 
	 	 	 	 	 	 



 

Transfer Instructions for Pledged Cash Transferable upon [Early
Settlement] [Fundamental Change Early Settlement]:


 




    C-10


     


    

[TO BE ATTACHED TO GLOBAL CERTIFICATES]


 


SCHEDULE OF INCREASES OR DECREASES
IN


 


GLOBAL CERTIFICATE


 


The initial number of Cash Settled Units evidenced by this Global
Certificate is _________. The following increases or decreases in this Global Certificate have been made:


 


	 	 	 	 	 	 	 	 	 
	Date	 	Amount of increase in

number of Cash Settled

Units evidenced by the

Global Certificate	 	Amount of decrease in

number of Cash Settled Units

evidenced by the Global

Certificate	 	Number of Cash Settled

Units evidenced by this

Global Certificate

following such decrease

or increase	 	Signature of authorized

signatory of Purchase

Contract Agent




    C-11


     


    


 


EXHIBIT D


 


INSTRUCTION TO PURCHASE CONTRACT AGENT
FROM HOLDER


 


(To Create Treasury Units or Corporate Units)


 


Deutsche Bank Trust Company Americas,

as Purchase Contract Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	[Corporate Units] [ Treasury Units] of The AES Corporation, a Delaware corporation (the “Company”).



 


The undersigned Holder hereby notifies you that it has delivered
to Deutsche Bank Trust Company Americas, as Securities Intermediary, for credit to the Collateral Account, $[____] [Value of Convertible
Preferred Stock] [Treasury Securities] in exchange for [an equal Value of Pledged Treasury Securities] [an equal Value of Convertible
Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock] held in the Collateral Account,
in accordance with the Purchase Contract and Pledge Agreement, dated as of March 11, 2021 (the “Agreement”;
unless otherwise defined herein, terms defined in the Agreement are used herein as defined therein), between the Company and you,
as the Purchase Contract Agent, Collateral Agent, Custodial Agent and Securities Intermediary. The undersigned Holder has paid
all applicable fees and expenses relating to such exchange. The undersigned Holder hereby instructs you to instruct the Collateral
Agent to release to you on behalf of the undersigned Holder the [Convertible Preferred Stock underlying Pledged Applicable Ownership
Interests in Convertible Preferred Stock] [Treasury Securities] related to such [Corporate Units] [Treasury Units].


 


	 	 	 	 	 	 	 	 	 
	Dated: 	 	 	 	Signature:	 	 	 	 



 

Signature Guarantee: __________________


 


	 	 	 	 	 
	
        Please print name and address of

        

        registered Holder:

        
	 	 	 	 
	 	 	 
	Name	 	 	 	Social Security or other Taxpayer Identification Number, if any
	 	 	 
	Address	 	 	 	 
	 	 	 
	 	 	 	 	 


Copy to: Computershare Trust Company, N.A.





Transfer Agent and Registrar





150 Royall Street





Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 




    D-1


     


    


 


EXHIBIT E


 


INSTRUCTION TO PURCHASE CONTRACT AGENT
FROM HOLDER


 


(To Create Cash Settled Units)


 


Deutsche Bank Trust Company Americas,

as Purchase Contract Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	Cash Settled Units of The AES Corporation, a Delaware corporation (the “Company”).



 


The undersigned Holder hereby notifies you that it has delivered
to Deutsche Bank Trust Company Americas, as Securities Intermediary, for credit to the Collateral Account, $[____] in exchange
for an equal Value of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock
held in the Collateral Account, in accordance with the Purchase Contract and Pledge Agreement, dated as of March 11, 2021 (the
“Agreement”; unless otherwise defined herein, terms defined in the Agreement are used herein as defined therein),
between the Company and you, as the Purchase Contract Agent, Collateral Agent, Custodial Agent and Securities Intermediary. The
undersigned Holder has paid all applicable fees and expenses relating to such exchange. The undersigned Holder hereby instructs
you to instruct the Collateral Agent to release to you on behalf of the undersigned Holder the Convertible Preferred Stock underlying
Pledged Applicable Ownership Interests in Convertible Preferred Stock related to such Corporate Units.


 


	 	 	 	 	 	 	 	 	 
	Dated: 	 	 	 	Signature:	 	 	 	 


 


Signature Guarantee: ______________________


 


	 	 	 	 	 
	Please print name and address of registered Holder:	 	 	 	 
	 	 	 
	Name	 	 	 	Social Security or other Taxpayer Identification Number, if any
	 	 	 
	Address	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 


Copy to: Computershare Trust Company, N.A.





Transfer Agent and Registrar





150 Royall Street





Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 


 


E-1




     


     


    


 


EXHIBIT F


 


NOTICE FROM PURCHASE CONTRACT AGENT


 


TO HOLDERS UPON TERMINATION EVENT


 


(Transfer of Collateral upon Occurrence
of a Termination Event)


 


[HOLDER]

Attention:

Telecopy:


 


Re: [Corporate Units] [ Treasury
Units] [ Cash Settled Units] of The AES Corporation, a Delaware corporation (the “Company”)


 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Purchase Contract and Pledge Agreement”; unless otherwise defined herein, terms
defined in the Purchase Contract and Pledge Agreement are used herein as defined therein), between the Company, the undersigned,
as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units and Treasury Units from time to time and
as the Collateral Agent, the Custodial Agent and the Securities Intermediary.


 


We hereby notify you that a Termination Event has occurred and
that [the Convertible Preferred Stock underlying the Pledged Applicable Ownership Interests in Convertible Preferred Stock] [the
Applicable Ownership Interests in the Treasury Portfolio] [the Proceeds of the Treasury Security] [Pledged Cash] comprising a portion
of your ownership interest in [ ] [Corporate Units] [Treasury Units] [Cash Settled Units] have been released and are being held
by us for your account pending receipt of transfer instructions with respect to such [Convertible Preferred Stock] [Applicable
Ownership Interests in the Treasury Portfolio] [Proceeds of the Treasury Security] [Pledged Cash] (the “Released Securities”).


 


Pursuant to Section 3.15(a) of the Purchase Contract
and Pledge Agreement, we hereby request written transfer instructions with respect to the Released Securities. Upon receipt of
your instructions and upon transfer to us of your [Corporate Units] [Treasury Units] [Cash Settled Units] effected through book-entry
or by delivery to us of your [Corporate Units Certificate] [Treasury Units Certificate] [Cash Settled Units Certificate], we shall
transfer the Released Securities by [book-entry transfer] [wire transfer] or other appropriate procedures, in accordance with your
instructions. In the event you fail to effect such transfer or delivery, the Released Securities and any distributions thereon,
shall be held in our name, or a nominee in trust for your benefit, until such time as such [Corporate Units] [Treasury Units] [Cash
Settled Units] are transferred or your [Corporate Units Certificate] [Treasury Units Certificate] [Cash Settled Units Certificate]
is surrendered or satisfactory evidence is provided that such [Corporate Units Certificate] [Treasury Units Certificate] [Cash
Settled Units Certificate] has been destroyed, lost or stolen, together with any indemnification that we or the Company may require.


 


 


 


F-1



     


     


    




Date:


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 


 


Copy to: Computershare Trust Company, N.A. 


Transfer Agent and Registrar





150 Royall Street 


Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 


 


 


F-2




     


     


    


 


EXHIBIT G


 


INSTRUCTION


 


FROM PURCHASE CONTRACT AGENT


 


TO COLLATERAL AGENT


 


(Creation of Treasury Units)


 


Deutsche Bank Trust Company Americas,

as Collateral Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	Corporate Units of The AES Corporation (the “Company”)



 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Agreement”), between the Company and you, as Collateral Agent, as Securities
Intermediary, as Custodial Agent, as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units from time
to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.


 


We hereby notify you in accordance with Section 3.12(a)
of the Agreement that the holder of securities named below (the “Holder”) has elected to substitute [____] Treasury
Securities in exchange for an equal Value of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible
Preferred Stock relating to Corporate Units and has delivered to the undersigned a notice stating that the Holder has Transferred
such Treasury Securities to the Securities Intermediary, for credit to the Collateral Account.


 


We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Treasury Securities have been credited to the Collateral Account, to release to the undersigned an
equal Value of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock or
security entitlements with respect thereto related to [____] Corporate Units of such Holder in accordance with Section 3.12(a)
of the Agreement.


 




    G-1


     


    

Date:


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Units
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 



 


 

Please print name and address of Holder electing to substitute
Cash for the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock:


 


	 	 	 	 	 
	 	 	 
	Please print name and address of registered Holder:	 	 	 	 
	 	 	 
	Name:	 	 	 	Social Security or other Taxpayer Identification Number, if any
	 	 	 
	
        Address

         
	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 


Copy to: Computershare Trust Company, N.A.





Transfer Agent and Registrar





150 Royall Street





Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 




    G-2


     


    


 


EXHIBIT H


 


INSTRUCTION


 


FROM COLLATERAL AGENT


 


TO SECURITIES INTERMEDIARY


 


(Creation of Treasury Units)


 


Deutsche Bank Trust Company Americas,

as Securities Intermediary

60 Wall Street, 24th Floor





New York, NY 10005 


Attention: Global Debt and Agency


 


		Re:	Corporate Units of The AES Corporation (the “Company”)



 


This notice relates to the securities account of Deutsche Bank
Trust Company Americas, as Collateral Agent, maintained by the Securities Intermediary and designated “Deutsche Bank Trust
Company Americas, as Collateral Agent of The AES Corporation, as pledgee of The Bank of Deutsche Bank Trust Company Americas, as
the Purchase Contract Agent on behalf of and as attorney-in-fact for the Holders” (the “Collateral Account”).


 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Agreement”), between the Company and you, as Collateral Agent, as Securities
Intermediary as Custodial Agent, as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units from time
to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.


 


When you have confirmed that [____] Treasury Securities have
been credited to the Collateral Account by or for the benefit of [____], as Holder of Corporate Units (the “Holder”),
you are hereby instructed to release from the Collateral Account an equal Value of Convertible Preferred Stock underlying Pledged
Applicable Ownership Interests in Convertible Preferred Stock or security entitlements with respect thereto relating to [____]
Corporate Units of the Holder by Transfer to the Purchase Contract Agent.


 


Date:


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	Authorized Signatory



 


 


H-1



     


     


    


 


EXHIBIT I


 


INSTRUCTION


 


FROM PURCHASE CONTRACT AGENT


 


TO COLLATERAL AGENT


 


(Creation of Cash Settled Units)


 


Deutsche Bank Trust Company Americas,

as Collateral Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	Corporate Units of The AES Corporation (the “Company”)



 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Agreement”), between the Company and you, as Collateral Agent, as Securities
Intermediary as Custodial Agent, as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units from time
to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.


 


We hereby notify you in accordance with Section 3.13(a)
of the Agreement that the holder of securities named below (the “Holder”) has elected to substitute $[____]
of Cash in exchange for an equal Value of Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible
Preferred Stock relating to Corporate Units and has delivered to the undersigned a notice stating that the Holder has Transferred
such Cash to the Securities Intermediary, for credit to the Collateral Account.


 


We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Cash has been credited to the Collateral Account, to release to the undersigned an equal Value of Convertible
Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock or security entitlements with
respect thereto related to [____] Corporate Units of such Holder in accordance with Section 3.13(a) of the Agreement.


 



    I-1


     


    




Date:


 


	 	Deutsche Bank Trust Company Americas, as Purchase Contract Agent and as attorney-in-fact of the Holders from time to time of the Units
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 



 

Please print name and address of Holder electing to substitute
Cash for the Convertible Preferred Stock underlying Pledged Applicable Ownership Interests in Convertible Preferred Stock:


 


	 	 	 	 	 
	Please print name and address of registered Holder:	 	 	 	 
	 	 	 
	Name:	 	 	 	Social Security or other Taxpayer Identification Number, if any
	 	 	 
	
        Address

         
	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 


Copy to: Computershare Trust Company, N.A.





Transfer Agent and Registrar





150 Royall Street





Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 




    I-2


     


    


 


EXHIBIT J


 


INSTRUCTION


 


FROM COLLATERAL AGENT


 


TO SECURITIES INTERMEDIARY


 


(Creation of Cash Settled Units)


 


Deutsche Bank Trust Company Americas,

as Securities Intermediary

60 Wall Street, 24th Floor





New York, NY 10005 


Attention: Global Debt and Agency


 


		Re:	Corporate Units of The AES Corporation (the “Company”)



 


This notice relates to the securities account of Deutsche Bank
Trust Company Americas, as Collateral Agent, maintained by the Securities Intermediary and designated “Deutsche Bank Trust
Company Americas, as Collateral Agent of The AES Corporation, as pledgee of Deutsche Bank Trust Company Americas, as the Purchase
Contract Agent on behalf of and as attorney-in-fact for the Holders” (the “Collateral Account”).


 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Agreement”), between the Company and you, as Collateral Agent, as Securities
Intermediary as Custodial Agent, as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units from time
to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.


 


When you have confirmed that $[ ] of Cash has been credited
to the Collateral Account by or for the benefit of [ ], as Holder of Corporate Units (the “Holder”), you are
hereby instructed to release from the Collateral Account an equal Value of Convertible Preferred Stock underlying Pledged Applicable
Ownership Interests in Convertible Preferred Stock or security entitlements with respect thereto relating to [ ] Corporate Units
of the Holder by Transfer to the Purchase Contract Agent.


 


Date:


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	Authorized Signatory



 


J-1



     


     


    


 


EXHIBIT K


 


INSTRUCTION


 


FROM PURCHASE CONTRACT AGENT


 


TO COLLATERAL AGENT


 


(Recreation of Corporate Units)


 


Deutsche Bank Trust Company Americas,

as Collateral Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	Treasury Units of The AES Corporation (the “Company”)



 


Please refer to the Purchase Contract and Pledge Agreement dated
as of March 11, 2021 (the “Agreement”), between the Company and you, as Collateral Agent, as Securities Intermediary
as Custodial Agent, as Purchase Contract Agent and as attorney-in-fact for the holders of Treasury Units from time to time. Capitalized
terms used herein but not defined shall have the meaning set forth in the Agreement.


 


We hereby notify you in accordance with Section 3.14(a)
of the Agreement that the holder of securities named below (the “Holder”) has elected to substitute $[____]
Value of Convertible Preferred Stock or security entitlements with respect thereto in exchange for the Treasury Securities relating
to [____] Treasury Units and has delivered to the undersigned a notice stating that the holder has Transferred such Convertible
Preferred Stock or security entitlements with respect thereto to the Securities Intermediary, for credit to the Collateral Account.


 


We hereby request that you instruct the Securities Intermediary,
upon confirmation that such Convertible Preferred Stock or security entitlements with respect thereto have been credited to the
Collateral Account, to release to the undersigned the proceeds of the Treasury Security related to [____] Treasury Units of such
Holder in accordance with Section 3.14(a) of the Agreement.


 


Date:


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 



 






    K-1


     


    

 

	 	 	 	 	 
	Please print name and address of registered Holder:	 	 	 	 
	 	 	 	 	 
	
        Name:

         
	 	 	 	Social Security or other Taxpayer Identification Number, if any
	
        Address

         
	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


Copy to: Computershare Trust Company, N.A.





Transfer Agent and Registrar





150 Royall Street





Canton, Massachusetts 02021





Email: priorityprocessing@computershare.com


 




    K-2


     


    


 


EXHIBIT L


 


INSTRUCTION


 


FROM COLLATERAL AGENT


 


TO SECURITIES INTERMEDIARY


 


(Recreation of Corporate Units)


 


Deutsche Bank Trust Company Americas

as Securities Intermediary

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


Re:Treasury Units of The AES Corporation (the “Company”)


 


This notice relates to the securities account of Deutsche Bank
Trust Company Americas, as Collateral Agent, maintained by the Securities Intermediary and designated “Deutsche Bank Trust
Company Americas, as Collateral Agent of The AES Corporation, as pledgee of Deutsche Bank Trust Company Americas, as the Purchase
Contract Agent on behalf of and as attorney-in-fact for the Holders” (the “Collateral Account”).


 


Please refer to the Purchase Contract and Pledge Agreement dated
as of March 11, 2021 (the “Agreement”), between the Company and you, as Securities Intermediary, Custodial Agent,
Collateral Agent, Purchase Contract Agent and attorney-in-fact for the holders of Treasury Units from time to time. Capitalized
terms used herein but not defined shall have the meaning set forth in the Agreement.


 


When you have confirmed that $[____] Value of Convertible Preferred
Stock or security entitlements with respect thereto has been credited to the Collateral Account by or for the benefit of [____],
as Holder of Treasury Units (the “Holder”), you are hereby instructed to release from the Collateral Account
the Treasury Securities corresponding to [____] Treasury Units by Transfer to the Purchase Contract Agent.


 


Date:


 


	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
	 	 
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	Authorized Signatory



 


 


L-1



     


     


    


 


EXHIBIT M


 


INSTRUCTION FROM HOLDER OF SEPARATE
SHARES OF


 


CONVERTIBLE PREFERRED STOCK TO CUSTODIAL
AGENT


 


REGARDING REMARKETING


 


Deutsche Bank Trust Company Americas,

as Custodial Agent

60 Wall Street, 24th Floor





New York, NY 10005 


Attention: Global Debt and Agency


 


		Re:	Convertible Preferred Stock of The AES Corporation (the
“Company”)



 


The undersigned Holder hereby notifies you in accordance with
Section 5.02(d) of the Purchase Contract and Pledge Agreement, dated as of March 11, 2021 (the “Agreement”),
between the Company and you, as Collateral Agent, Custodial Agent, Securities Intermediary, Purchase Contract Agent and attorney-in-fact
for the holders of Corporate Units, Treasury Units and Cash Settled Units from time to time, that the undersigned elects to deliver
[____] aggregate number of Separate Shares of Convertible Preferred Stock for delivery to a Remarketing Agent prior to a Remarketing,
other than during a Blackout Period, for Remarketing pursuant to Section 5.02(d) of the Agreement. The undersigned will,
upon request of a Remarketing Agent, execute and deliver any additional documents deemed by such Remarketing Agent or by the Company
to be necessary or desirable to complete the sale, assignment and transfer of the Separate Shares of Convertible Preferred Stock
tendered hereby. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.


 


The undersigned hereby instructs you, upon receipt of the Proceeds
of a Successful Remarketing from the Remarketing Agent, to deliver such Proceeds to the undersigned in accordance with the instructions
indicated herein under “A. Payment Instructions.” The undersigned hereby instructs you, in the event of an Unsuccessful
Remarketing, upon receipt of the Separate Shares of Convertible Preferred Stock tendered herewith from the Remarketing Agents,
to deliver such Separate Shares of Convertible Preferred Stock to the person(s) and the address(es) indicated herein under “B.
Delivery Instructions.”


 


With this notice, the undersigned hereby (i) represents and
warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Separate Shares of Convertible
Preferred Stock tendered hereby and that the undersigned is the record owner of any Separate Shares of Convertible Preferred Stock
tendered herewith in physical form or a participant in The Depository Trust Company (“DTC”) and the beneficial
owner of any Separate Shares of Convertible Preferred Stock tendered herewith by book-entry transfer to your account at DTC, (ii)
agrees to be bound by the terms and conditions of Section 5.02 of the Agreement and (iii) acknowledges and agrees that after
the close of business on the second Business Day immediately preceding the first day of the Applicable Remarketing Period, such
election shall


 




    M-1


     


    

become an irrevocable election to have such Separate Shares
of Convertible Preferred Stock remarketed in each Remarketing during the Applicable Remarketing Period, and that the Separate Shares
of Convertible Preferred Stock tendered herewith will only be returned in the event of an Unsuccessful Remarketing, subject to
Section 5.02(b)(vii) of the Agreement.


 


Date:


 


	 	By: 	 
	 	 	Name:	 
	 	 	Title:	 


	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	Signature Guarantee:	 	 
	 	 	 	 	 
	 	 	 	 	 


	 	 	 	 	 	 	 
	 	 	 
	Name:	 	Social Security or other Taxpayer Identification Number, if any
	 	 	 	 	 	 	 
	
        Address 
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 


 


A. PAYMENT INSTRUCTIONS


 


Proceeds of a Successful Remarketing should be paid by check
in the name of the person(s) set forth below and mailed to the address set forth below.


 


	Name(s)
	 
	

	(Please Print)
	Address
	 
	

	(Please Print)
	 
	

	(Zip Code)
	 
	

	(Tax Identification or Social Security Number)




    M-2


     


    

B. DELIVERY INSTRUCTIONS


 


In the event of an Unsuccessful Remarketing, subject to Section
5.02(b)(vii) of the Agreement, shares of Convertible Preferred Stock which are in physical form should be delivered to the
person(s) set forth below and mailed to the address set forth below.


 


	Name(s)
	 
	

	(Please Print)
	Address
	 
	

	(Please Print)
	 
	

	(Zip Code)
	 
	

	(Tax Identification or Social Security Number)



 

In the event of an Unsuccessful Remarketing, subject to Section
5.02(b)(vii) of the Agreement, shares of Convertible Preferred Stock which are in book-entry form should be credited to the
account at The Depository Trust Company set forth below.


 


	DTC Account Number	

	 	 
	Name of Account Party:	





    M-3


     


    


 


EXHIBIT N


 


INSTRUCTION FROM HOLDER OF SEPARATE
SHARES OF


 


CONVERTIBLE PREFERRED STOCK TO CUSTODIAL
AGENT


 


REGARDING WITHDRAWAL FROM REMARKETING


 


Deutsche Bank Trust Company Americas,

as Custodial Agent

60 Wall Street, 24th Floor





New York, NY 10005 


Attention: Global Debt and Agency


 


		Re:	Convertible Preferred Stock of The AES Corporation (the
“Company”)



 


The undersigned Holder hereby notifies you in accordance with
Section 5.02(d) of the Purchase Contract and Pledge Agreement, dated as of March 11, 2021 (the “Agreement”),
between the Company and you, as Collateral Agent, Custodial Agent, Securities Intermediary, Purchase Contract Agent and attorney-in-fact
for the holders of Corporate Units, Treasury Units and Cash Settled Units from time to time, that the undersigned elects to withdraw
the [____] Separate Shares of Convertible Preferred Stock delivered to you for Remarketing pursuant to Section 5.02 of the
Agreement. The undersigned hereby instructs you to return such Separate Shares of Convertible Preferred Stock to the undersigned
in accordance with the undersigned’s instructions. With this notice, the Undersigned hereby agrees to be bound by the terms
and conditions of Section 5.02 of the Agreement. Capitalized terms used herein but not defined shall have the meaning set
forth in the Agreement.


 


Date:


 


	 	By: 	 
	 	 	Name:	 
	 	 	Title:	 


	 	 	 	 	 
	 	 	 	 	 
	 	 	Signature Guarantee:	 	 
	 	 	 	 	 


	 	 	 
	 	 	 
	Name:	 	Social Security or other Taxpayer Identification Number, if any
	 	 	 
	
        Address: 
	 	 
	 	 	 
	 	 	 



 


N-1



     


     


    


 


EXHIBIT O


 


NOTIFICATION FROM PURCHASE CONTRACT
AGENT TO


 


COLLATERAL AGENT REGARDING [FUNDAMENTAL
CHANGE


 


EARLY SETTLEMENT][EARLY SETTLEMENT]


 


Deutsche Bank Trust Company Americas,

as Custodial Agent|

60 Wall Street, 24th Floor





New York, NY 10005 


Attention: Global Debt and Agency


 


		Re:	Convertible Preferred Stock of The AES Corporation (the
“Company”)



 


The undersigned hereby notifies you in accordance with Section
[5.04(a)][5.06(a)] of the Purchase Contract and Pledge Agreement, dated as of March 11, 2021 (the “Agreement”),
between the Company and you, as Collateral Agent, Custodial Agent, Securities Intermediary, Purchase Contract Agent and attorney-in-fact
for the holders of Corporate Units, Treasury Units and Cash Settled Units from time to time, that all the conditions necessary
for [a Fundamental Change Early Settlement][an Early Settlement] (as defined in the Agreement) by the below specified Holder have
been satisfied pursuant to which the undersigned has received from such Holder, and paid to the Company as confirmed in writing
by the Company, the below specified Purchase Price.


 


	 	 	 
	Holder:	 	 


	 	 	 
	Purchase Price:	 	 


	 	 	 
	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	By:	 	 
	 	 	Name:
	 	 	Title:


	 	 	 
	DATED:	 	 



 


O-1



     


     


    


 


EXHIBIT P


 


NOTICE TO SETTLE WITH CASH AFTER UNSUCCESSFUL
FINAL


 


REMARKETING


 


Deutsche Bank Trust Company Americas,

as Purchase Contract Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	Corporate Units of The AES Corporation, a Delaware corporation (the “Company”).



 


The undersigned Holder hereby irrevocably notifies you in accordance
with Section 5.02(b)(vii) of the Purchase Contract and Pledge Agreement, dated as of March 11, 2021 (the “Purchase
Contract and Pledge Agreement”), between the Company and you, as the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent and the Securities Intermediary, that such Holder has elected to pay to or upon the order of the Securities Intermediary
for deposit in the Collateral Account, on or prior to 5:00 p.m. (New York City time) on the Business Day immediately preceding
the Purchase Contract Settlement Date (in Cash by certified or cashier’s check or wire transfer, in immediately available
funds), $[____] as the Purchase Price for the shares of Common Stock issuable to such Holder by the Company with respect to [____]
Purchase Contracts on the Purchase Contract Settlement Date. The undersigned Holder hereby instructs you to notify promptly the
Collateral Agent of the undersigned Holders’ election to settle the Purchase Contracts related to such Holder’s Corporate
Units with separate cash.


 


	 	 	 
	Dated: __________	 	Signature: ______________________________________________


Signature Guarantee: _____________________


 


	 	 	 
	Please print name and address of registered Holder:	 	 
	 	 
	 	 	 
	Name	 	Social Security or other Taxpayer Identification Number, if any
	 	 
	Address	 	 
	 	 	 



 


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EXHIBIT Q


 


NOTICE FROM PURCHASE CONTRACT AGENT


 


TO COLLATERAL AGENT


 


(Settlement with Separate Cash)


 


Deutsche Bank Trust Company Americas,

as Custodial Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


Re:Corporate Units of The AES Corporation (the “Company”)


 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Agreement”), between the Company and you, as Collateral Agent, as Securities
Intermediary, as Custodial Agent, as Purchase Contract Agent and as attorney-in-fact for the holders of Corporate Units and Treasury
Units from time to time. Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement.


 


We hereby notify you in accordance with Section 5.02(b)(vii)
of the Agreement that the holder of Corporate Units named below (the “Holder”) has elected to settle the [____]
Purchase Contracts related to its Pledged Applicable Ownership Interests in Convertible Preferred Stock with [____] of separate
cash prior to 5:00 p.m. (New York City time) on the second Business Day immediately preceding the Purchase Contract Settlement
Date (in Cash by certified or cashier’s check or wire transfer, in immediately available funds payable to or upon the order
of the Securities Intermediary) and has delivered to the undersigned a notice to that effect.


 


We hereby request that you, upon confirmation that the Purchase
Price has been paid by the Holder to the Securities Intermediary in accordance with Section 5.02(b)(vii) of the Agreement
in lieu of delivery of the Convertible Preferred Stock underlying such Holder’s Applicable Ownership Interests in Convertible
Preferred Stock, give us notice of the receipt of such payment and, thereafter, you are instructed to, or instructed to cause the
Securities Intermediary to, (A) deposit the separate cash received in the Collateral Account and, if applicable, invest such separate
cash in Permitted Investments consistent with the instructions of the Company as provided in Section 5.02(b)(vii) of the
Agreement, (B) promptly release from the Pledge the Convertible Preferred Stock underlying the Applicable Ownership Interests in
Convertible Preferred Stock related to the Corporate Units as to which such Holder has paid such separate cash; and (C) promptly
Transfer all such shares of Convertible Preferred Stock to us for distribution to such Holder, in each case free and clear of the
Pledge created by the Agreement.


 



    Q-1


     


    




	 	 	 
	Please print name and address of registered Holder:	 	 
	 	 
	 	 	 
	Name	 	Social Security or other Taxpayer Identification Number, if any
	 	 
	Address	 	 
	 	 	 


	 	 	 
	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Purchase Contract Agent
	 	 
	By:	 	 
	 	 	Name:
	 	 	Title:


	 	 	 
	DATED:	 	 




    Q-2


     


    


 


EXHIBIT R


 


NOTICE OF SETTLEMENT WITH SEPARATE
CASH FROM


 


SECURITIES INTERMEDIARY TO PURCHASE
CONTRACT AGENT


 


AND COLLATERAL AGENT


 


(Settlement with Separate Cash)


 


Deutsche Bank Trust Company Americas,

as Purchase Contract Agent

60 Wall Street, 24th Floor





New York, NY 10005





Attention: Global Debt and Agency


 


		Re:	Corporate Units of The AES Corporation (the “Company”)



 


Please refer to the Purchase Contract and Pledge Agreement,
dated as of March 11, 2021 (the “Agreement”), between you and the Company. Unless otherwise defined herein,
terms defined in the Agreement are used herein as defined therein.


 


In accordance with Section 5.02(b)(vii) of the Agreement,
we hereby notify you that as of 5:00 p.m. (New York City time) on the Business Day immediately preceding the Purchase Contract
Settlement Date, (i) we have received from [____] $[____] in immediately available funds paid in an aggregate amount equal to the
Purchase Price due to the Company on the Purchase Contract Settlement Date with respect to [____] Corporate Units and (ii) based
on the funds received set forth in clause (i) above, an aggregate of [____] shares of Convertible Preferred Stock underlying
related Pledged Applicable Ownership Interests in Convertible Preferred Stock are to be released from the Pledge and Transferred
to the Purchase Contract Agent.


 


Date:


 


	 	 	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Securities Intermediary
	 	 	 
	 	 	 
	 	 	 	 
	 	 	Name:	 
	 	 	Title:	Authorized Signatory



 


 


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