Exhibit 4.1


 


 



 


 


 


 


 


 


 


 


 


AVID SPV, LLC,



as Issuer



AVID BIOSERVICES, INC.,



as Guarantor



AND



U.S. BANK NATIONAL ASSOCIATION,



as Trustee







INDENTURE







Dated as of March 12, 2021


 


1.250% Exchangeable Senior Notes due 2026


 


 


 


 


 


 


 


 


 


 


 


 


 


 



 


 


 






    	 	 	 



     


    

 


TABLE OF CONTENTS


 



Page




	Article 1 Definitions
	Section 1.01.  Definitions	1
	Section 1.02.  References to Interest	13
	Article 2 Issue, Description, Execution, Registration and Exchange of Notes
	Section 2.01.  Designation and Amount	13
	Section 2.02.  Form of Notes	13
	Section 2.03.  Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	14
	Section 2.04.  Execution, Authentication and Delivery of Notes	15
	Section 2.05.  Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	16
	Section 2.06.  Mutilated, Destroyed, Lost or Stolen Notes	23
	Section 2.07.  Temporary Notes	24
	Section 2.08.  Cancellation of Notes Paid, Exchanged, Etc	24
	Section 2.09.  CUSIP Numbers	24
	Section 2.10.  Additional Notes; Repurchases	25
	Article 3 Satisfaction and Discharge
	Section 3.01.  Satisfaction and Discharge	25
	Article 4 Particular Covenants of the Company and the Guarantor
	Section 4.01.  Payment of Principal and Interest	26
	Section 4.02.  Maintenance of Office or Agency	26
	Section 4.03.  Appointments to Fill Vacancies in Trustee’s Office	26
	Section 4.04.  Provisions as to Paying Agent	26
	Section 4.05.  Existence	28
	Section 4.06.  Rule 144A Information Requirement and Annual Reports	28
	Section 4.07.  Stay, Extension and Usury Laws	30
	Section 4.08.  Compliance Certificate; Statements as to Defaults	30
	Section 4.09.  Further Instruments and Acts	30
	Article 5 Lists of
    Holders and Reports by the Company and the Trustee
	Section 5.01.  Lists of Holders	n/a
	Section 5.02.  Preservation and Disclosure of Lists	n/a



 


 


 






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	Article 6 Defaults and Remedies
	Section 6.01.  Events of Default	31
	Section 6.02.  Acceleration; Rescission and Annulment	32
	Section 6.03.  Additional Interest	33
	Section 6.04.  Payments of Notes on Default; Suit Therefor	34
	Section 6.05.  Application of Monies Collected by Trustee	36
	Section 6.06.  Proceedings by Holders	36
	Section 6.07.  Proceedings by Trustee	37
	Section 6.08.  Remedies Cumulative and Continuing	38
	Section 6.09.  Direction of Proceedings and Waiver of Defaults by Majority of Holders	38
	Section 6.10.  Notice of Defaults	38
	Section 6.11.  Undertaking to Pay Costs	39
	Article 7 Concerning the Trustee
	Section 7.01.  Duties and Responsibilities of Trustee	39
	Section 7.02.  Reliance on Documents, Opinions, Etc	41
	Section 7.03.  No Responsibility for Recitals, Etc	42
	Section 7.04.  Trustee, Paying Agents, Exchange Agents, Bid Solicitation Agent or Note Registrar May Own Notes	42
	Section 7.05.  Monies and Shares of Common Stock to Be Held in Trust	42
	Section 7.06.  Compensation and Expenses of Trustee	42
	Section 7.07.  Officer’s Certificate as Evidence	43
	Section 7.08.  Eligibility of Trustee	44
	Section 7.09.  Resignation or Removal of Trustee	44
	Section 7.10.  Acceptance by Successor Trustee	45
	Section 7.11.  Succession by Merger, Etc	45
	Section 7.12.  Trustee’s Application for Instructions from the Company or the Guarantor	46
	Article 8 Concerning the Holders
	Section 8.01.  Action by Holders	46
	Section 8.02.  Proof of Execution by Holders	47
	Section 8.03.  Who Are Deemed Absolute Owners	47
	Section 8.04.  Company-Owned Notes Disregarded	47
	Section 8.05.  Revocation of Consents; Future Holders Bound	48



 


 


 






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	Article 9 Holders’ Meetings
	Section 9.01.  Purpose of Meetings	48
	Section 9.02.  Call of Meetings by Trustee	49
	Section 9.03.  Call of Meetings by Company or Holders	49
	Section 9.04.  Qualifications for Voting	49
	Section 9.05.  Regulations	49
	Section 9.06.  Voting	50
	Section 9.07.  No Delay of Rights by Meeting	50
	Article 10 Supplemental Indentures
	Section 10.01.  Supplemental Indentures Without Consent of Holders	51
	Section 10.02.  Supplemental Indentures with Consent of Holders	51
	Section 10.03.  Effect of Supplemental Indentures	53
	Section 10.04.  Notation on Notes	53
	Section 10.05.  Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	53
	Article 11 Consolidation, Merger, Sale, Conveyance and Lease
	Section 11.01.  Guarantor May Consolidate, Etc. on Certain Terms	53
	Section 11.02.  Company May Consolidate, Etc. on Certain Terms	54
	Section 11.03.  Opinion of Counsel to Be Given to Trustee	55
	Article 12 Immunity of Incorporators, Stockholders, Officers and Directors
	Section 12.01.  Indenture, Notes and Guarantee Solely Corporate Obligations	55
	Article 13 Guarantee of Notes
	Section 13.01.  Guarantee	56
	Section 13.02.  Execution and Delivery	57
	Section 13.03.  Release of the Guarantee	58
	Section 13.04.  Limitation on Guarantor Liability	58
	Section 13.05.  Subrogation	58
	Section 13.06.  Benefits Acknowledged	58
	Section 13.07.  “Trustee” to Include Paying Agent	58



 


 


 






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	Article 14 Exchange of Notes
	Section 14.01.  Exchange Privilege	58
	Section 14.02.  Exchange Procedure; Settlement Upon Exchange	61
	Section 14.03.  Increased Exchange Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental
Changes or Redemption Notice	67
	Section 14.04.  Adjustment of Exchange Rate	69
	Section 14.05.  Adjustments of Prices	78
	Section 14.06.  Shares to Be Fully Paid	78
	Section 14.07.  Effect of Recapitalizations, Reclassifications and Changes of the Common Stock	79
	Section 14.08.  Certain Covenants	81
	Section 14.09.  Responsibility of Trustee	81
	Section 14.10.  Notice to Holders Prior to Certain Actions	82
	Section 14.11.  Stockholder Rights Plans	82
	Article 15 Repurchase of Notes at Option of Holders
	Section 15.01.  Repurchase at Option of Holders Upon a Fundamental Change	83
	Section 15.02.  Withdrawal of Fundamental Change Repurchase Notice	85
	Section 15.03.  Deposit of Fundamental Change Repurchase Price	86
	Section 15.04.  Covenant to Comply with Applicable Laws Upon Repurchase of Notes	87
	Article 16 Optional Redemption
	Section 16.01.  Optional Redemption	87
	Section 16.02.  Notice of Optional Redemption; Selection of Notes	87
	Section 16.03.  Payment of Notes Called for Redemption	88
	Section 16.04.  Restrictions on Redemption	89
	Article 17 Miscellaneous Provisions
	Section 17.01.  Provisions Binding on Company’s and the Guarantor’s Successors	89
	Section 17.02.  Official Acts by Successor Entity	89
	Section 17.03.  Addresses for Notices, Etc	89
	Section 17.04.  Governing Law; Jurisdiction	90
	Section 17.05.  Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	90
	Section 17.06.  Legal Holidays	91
	Section 17.07.  No Security Interest Created	91
	Section 17.08.  Benefits of Indenture	91
	Section 17.09.  Table of Contents, Headings, Etc	91
	Section 17.10.  Authenticating Agent	91
	Section 17.11.  Execution in Counterparts	93
	Section 17.12.  Severability	93
	Section 17.13.  Waiver of Jury Trial	93
	Section 17.14.  Force Majeure	93
	Section 17.15.  Calculations	93
	Section 17.16.  USA PATRIOT Act	93
	 	 
	Exhibit A           Form of Note	A-1


 


 


 






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INDENTURE dated as of March 12, 2021 by
and among Avid SPV, LLC, a Delaware limited liability company, as issuer (the “Company,” as more fully set forth
in ‎‎Section 1.01), Avid Bioservices, Inc., a Delaware
corporation, as guarantor (the “Guarantor,” as more fully set forth in ‎‎Section
1.01) and U.S. Bank National Association, as trustee (the “Trustee,” as more fully set forth in ‎‎Section
1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the issuance of its 1.250% Exchangeable Senior Notes due 2026 (the “Notes”),
initially in an aggregate principal amount not to exceed $143,750,000, and in order to provide the terms and conditions upon which
the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture,
and the Guarantor has duly authorized the execution and delivery of this Indenture and issuance of the Guarantee of the Notes (as
more fully set forth in ‎Section 1.01, the “Guarantee”);


 


WHEREAS, the Form of Note, the certificate
of authentication to be borne by each Note, the Form of Notice of Exchange, the Form of Fundamental Change Repurchase Notice and
the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and


 


WHEREAS, all acts and things necessary to
make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating
agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid, binding
and legal obligation of the Company and the Guarantor, have been done and performed, and the execution of this Indenture and the
issuance hereunder of the Notes and the Guarantee have in all respects been duly authorized.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


That in order to declare the terms and conditions
upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the Holders thereof, each of the Company and the Guarantor covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective Holders from time to time of the Notes and the Guarantee (except as otherwise
provided below), as follows:


 


Article
1

Definitions


 


Section 1.01.     
Definitions. The terms defined in this ‎‎‎Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in this ‎‎‎Section
1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include the plural
as well as the singular. 


 


 


 


 


 


 


 


 


 


 


 






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“Additional Interest”
means all amounts, if any, payable pursuant to ‎‎Section
4.06(d), ‎‎Section 4.06(e) and ‎Section
6.03, as applicable.


 


“Additional Shares” shall
have the meaning specified in ‎Section 14.03(a).


 


“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person
means the power to direct or cause the direction of 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. Notwithstanding anything to the contrary herein, the determination of whether one Person
is an “Affiliate” of another Person for purposes of this Indenture shall be made based on the facts at the time
such determination is made or required to be made, as the case may be, hereunder.


 


“Bid Solicitation Agent”
means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with
‎Section 14.01(b)(i). The Company shall initially act as the
Bid Solicitation Agent.


 


“Board of Directors”
means, with respect to the Guarantor or the Company, either the board of directors or managers, as applicable, of the Guarantor
or the Company, as the case may be, or a committee of such board duly authorized to act for it hereunder.


 


“Board Resolution” means
a copy of a resolution certified by the Secretary or an Officer of the Company or the Guarantor, as the case may be, to have been
duly adopted by the applicable Board of Directors, and to be in full force and effect on the date of such certification, and delivered
to the Trustee.


 


“Business Day” means
any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law
or executive order to close or be closed.


 


“Capital Stock” means,
for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that entity.


 


“Cash Settlement” shall
have the meaning specified in ‎Section 14.02(a).


 


“Clause A Distribution”
shall have the meaning specified in ‎‎Section 14.04(c).


 


“Clause B Distribution”
shall have the meaning specified in ‎‎Section 14.04(c).


 


“Clause C Distribution”
shall have the meaning specified in ‎‎Section 14.04(c).


 


 


 


 


 


 


 


 






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


 


“Combination Settlement”
shall have the meaning specified in ‎Section 14.02(a).


 


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


 


“Common Equity” of any
Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or
(b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers
or others that will control the management or policies of such Person.


 


“Common Stock” means
the common stock of the Guarantor, par value $0.01 per share, subject to ‎‎Section
14.07.


 


“Company” shall have
the meaning specified in the first paragraph of this Indenture, and subject to the provisions of ‎‎Article
11, shall include its successors and assigns.


 


“Company Order” means
a written order of the Company, signed by and Officer of the Company.


 


“Corporate Trust Office”
means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office
at the date hereof is located at 13737 Noel Road, Suite 800, Dallas, TX 75240, Attention: Michael K. Herberger, or such other address
as the Trustee may designate from time to time by notice to the Holders, the Company and the Guarantor, or the principal corporate
trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice
to the Holders, the Company and the Guarantor).


 


“Custodian” means the
Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.


 


“Daily Exchange Value”
means, for each of the 40 consecutive Trading Days during the Observation Period, one-fortieth (1/40th) of the product
of (a) the Exchange Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.


 


“Daily Measurement Value”
means the Specified Dollar Amount (if any), divided by 40.


 


“Daily Settlement Amount,”
for each of the 40 consecutive Trading Days during the Observation Period, shall consist of:


 


(a)       cash
in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Exchange Value on such Trading Day; and


 


(b)       if
the Daily Exchange Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i)
the difference between the Daily Exchange Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such
Trading Day.


 


 


 


 


 


 


 


 






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“Daily VWAP” means, for
each of the 40 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page “CDMO <equity> AQR” (or its equivalent
successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close
of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market
value 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). The “Daily VWAP” shall be determined
without regard to after-hours trading or any other trading outside of the regular trading session trading hours.


 


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


 


“Defaulted Amounts” means
any amounts on any Note (including, without limitation, the Redemption Price, Fundamental Change Repurchase Price, cash exchange
consideration due upon exchange, principal and interest) that are payable but are not punctually paid or duly provided for.


 


“Depositary” means, with
respect to each Global Note, the Person specified in ‎‎Section
2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.


 


“Distributed Property”
shall have the meaning specified in ‎‎‎Section 14.04(c).


 


“Effective Date” shall
have the meaning specified in ‎‎Section 14.03(c), except
that, as used in ‎‎Section 14.04 and ‎‎Section
14.05, “Effective Date” means the first date on which shares of the Common Stock trade on the applicable exchange
or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.


 


“Event of Default” shall
have the meaning specified in ‎‎Section 6.01.


 


“Ex-Dividend Date” means
the first date on which shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without
the right to receive the issuance, dividend or distribution in question, from the Guarantor or, if applicable, from the seller
of Common Stock 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, as amended, and the rules and regulations promulgated thereunder.


 


“Exchange Agent” shall
have the meaning specified in ‎‎Section 4.02.


 


 


 


 


 


 


 


 






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“Exchange Consideration”
shall have the meaning specified in ‎Section 14.02(k).


 


“Exchange Date” shall
have the meaning specified in ‎‎Section 14.02(c).


 


“Exchange Obligation”
shall have the meaning specified in ‎‎Section 14.01.


 


“Exchange Price” means
as of any time, $1,000, divided by the Exchange Rate as of such time.


 


“Exchange Rate” shall
have the meaning specified in ‎Section 14.01(a).


 


“Financial Institution Surrender”
shall have the meaning specified in ‎Section 14.02(k).


 


“Financial Institution Surrender
Election” shall have the meaning specified in ‎Section
14.02(k).


 


“Form of Assignment and Transfer”
means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit
A.


 


“Form of Fundamental Change Repurchase
Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of
Note attached hereto as Exhibit A.


 


“Form of Note” means
the “Form of Note” attached hereto as Exhibit A.


 


“Form of Notice of Exchange”
means the “Form of Notice of Exchange” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.


 


“Fundamental Change”
shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:


 


(a)       a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Guarantor,
its Wholly Owned Subsidiaries and the employee benefit plans of the Guarantor and its Wholly Owned Subsidiaries, has become the
direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common Stock representing
more than 50% of the voting power of the Common Stock;


 


(b)       the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision
or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other
property or assets; (B) any share exchange, consolidation or merger of the Guarantor pursuant to which the Common Stock will be
converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series
of transactions of all or substantially all of the consolidated assets of the Guarantor and its Subsidiaries, taken as a whole,
to any Person other than one of the Guarantor’s Wholly Owned Subsidiaries; provided, however, that a transaction described
in clause (B) in which the holders of all classes of the Guarantor’s Common Equity immediately prior to such transaction
beneficially own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation
or transferee or the parent thereof immediately after such transaction in substantially the same proportions as such ownership
immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);


 


 


 


 


 


 


 


 






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(c)       the
stockholders of the Guarantor approve any plan or proposal for the liquidation or dissolution of the Guarantor; or


 


(d)       the
Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange,
The Nasdaq Capital Market, The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors);


 


provided, however, that a transaction or transactions
described in clause (a) or clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received
or to be received by the common stockholders of the Guarantor, excluding cash payments for fractional shares, in connection with
such transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange,
The Nasdaq Capital Market, The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors)
or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of
such transaction or transactions the Notes become exchangeable into such consideration, excluding cash payments for fractional
shares (subject to the provisions of ‎‎‎Section 14.02(a)).
If any transaction in which the Common Stock is replaced by the securities of another entity occurs, following completion of any
related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole
Fundamental Change but for the proviso immediately following clause (d) of this definition, following the effective date of such
transaction) references to the Guarantor in this definition shall instead be references to such other entity.


 


“Fundamental Change Company Notice”
shall have the meaning specified in ‎Section 15.01(c).


 


“Fundamental Change Repurchase
Date” shall have the meaning specified in ‎Section
15.01(a).


 


“Fundamental Change Repurchase
Notice” shall have the meaning specified in ‎Section
15.01(b).


 


“Fundamental Change Repurchase
Price” shall have the meaning specified in ‎Section
15.01(a).


 


“Global Note” shall have
the meaning specified in ‎‎Section 2.05(b).


 


 


 


 


 


 


 


 






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“Guarantee” means the
full and unconditional guarantee provided by the Guarantor in respect of the Notes as made applicable to the Notes in accordance
with the provisions of ‎Article 13 hereof.


 


“Guarantor” means the
corporation named as the “Guarantor” in the first paragraph of this Indenture, and, subject to the provisions of ‎Article
11, shall include its successors and assigns.


 


“Holder,” as applied
to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name at
the time a particular Note is registered on the Note Register.


 


“Indenture” means this
instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.


 


“Interest Payment Date”
means each March 15 and September 15 of each year, beginning on September 15, 2021.


 


“Last Reported Sale Price”
of the Common Stock on any date means the closing sale price per share (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 “Last Reported Sale 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 a similar organization. If the Common Stock is not so quoted,
the “Last Reported Sale 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.


 


“Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving effect to any
exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).


 


“Make-Whole Fundamental Change
Period” shall have the meaning specified in ‎Section
14.03(a).


 


“Market Disruption Event”
means, for the purposes of determining amounts due upon exchange (a) 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 (b) 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.


 


 


 


 


 


 


 


 






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“Maturity Date” means
March 15, 2026.


 


“Measurement Period”
shall have the meaning specified in ‎Section 14.01(b)(i).


 


“Merger Event” shall
have the meaning specified in ‎‎Section 14.07(a).


 


“Note” or “Notes”
shall have the meaning specified in the first paragraph of the recitals of this Indenture.


 


“Note Register” shall
have the meaning specified in ‎Section 2.05(a).


 


“Note Registrar” shall
have the meaning specified in ‎‎Section 2.05(a).


 


“Notice of Exchange”
shall have the meaning specified in ‎Section 14.02(b).


 


“Observation Period”
with respect to any Note surrendered for exchange means: (i) subject to clause (ii), if the relevant Exchange Date occurs prior
to September 15, 2025, the 40 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding
such Exchange Date; (ii) if the relevant Exchange Date occurs on or after the date of the Company’s issuance of a Redemption
Notice with respect to the Notes pursuant to ‎‎Section
16.02 and prior to the relevant Redemption Date, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled
Trading Day immediately preceding such Redemption Date; and (iii) if the relevant Exchange Date occurs on or after September 15,
2025, the 40 consecutive Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity
Date.


 


“Offering Memorandum”
means the preliminary offering memorandum dated March 8, 2021, as supplemented by the related pricing term sheet dated March 9,
2021, relating to the offering and sale of the Notes.


 


“Officer” means, with
respect to the Company and/or the Guarantor, the Chief Executive Officer, the President, the Chief Financial Officer, a vice president
(whether or not designated by a number or word or words added before or after the title “Vice President”), the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer.


 


“Officer’s Certificate,”
means a certificate signed by an Officer and delivered to the Trustee.


 


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


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company or the Guarantor, or other
counsel acceptable to the Trustee, that is delivered to the Trustee. Each such opinion shall include the statements provided for
in ‎‎Section 17.05 if and to the extent required by the
provisions of such ‎ ‎‎Section 17.05.


 


 


 


 


 


 


 






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“Optional Redemption”
shall have the meaning specified in ‎‎Section 16.01.


 


“outstanding,” when used
with reference to Notes, shall, subject to the provisions of ‎‎Section
8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture, except:


 


(a)       Notes
theretofore canceled by the Trustee or accepted by the Trustee for cancellation;


 


(b)       Notes,
or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company or the Guarantor) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent);


 


(c)       Notes
that have been paid pursuant to ‎‎Section 2.06 or Notes
in lieu of which, or in substitution for which, other Notes shall have been authenticated and delivered pursuant to the terms of
‎‎Section 2.06 unless proof satisfactory to the Trustee
is presented that any such Notes are held by protected purchasers in due course;


 


(d)       Notes
exchanged pursuant to ‎Article 14 and required to be cancelled
pursuant to ‎Section 2.08;


 


(e)       Notes
redeemed pursuant to ‎‎Article 16; and


 


(f)       Notes
repurchased by the Company pursuant to the penultimate sentence of ‎‎Section
2.10.


 


“Paying Agent” shall
have the meaning specified in ‎‎Section 4.02.


 


“Person” means an individual,
a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political subdivision thereof.


 


“Physical Notes” means
permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.


 


“Physical Settlement”
shall have the meaning specified in ‎Section 14.02(a).


 


“Predecessor Note” of
any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular
Note; and, for the purposes of this definition, any Note authenticated and delivered under ‎
‎‎Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.


 


 


 


 


 


 


 


 






    	 	9	 



     


    

 


 


 


“Record Date” means,
with respect to any dividend, 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 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 Guarantor’s
Board of Directors, by statute, by contract or otherwise).


 


“Redemption Date” shall
have the meaning specified in ‎Section 16.02(a).


 


“Redemption Notice” shall
have the meaning specified in ‎Section 16.02(a).


 


“Redemption Price” means,
for any Notes to be redeemed pursuant to ‎‎Section 16.01,
100% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to, but excluding, the Redemption
Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment
Date, in which case interest accrued to the Interest Payment Date will be paid to Holders of record of such Notes as of the close
of business on such Regular Record Date, and the Redemption Price will be equal to 100% of the principal amount of such Notes).


 


“Reference Property”
shall have the meaning specified in ‎‎Section 14.07(a).


 


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


 


“Resale Restriction Termination
Date” shall have the meaning specified in ‎‎Section
2.05(c).


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee
who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this Indenture.


 


“Restricted Securities”
shall have the meaning specified in ‎Section 2.05(c).


 


“Rule 144” means Rule
144 as promulgated under the Securities Act.


 


“Rule 144A” means Rule
144A as promulgated under the Securities Act.


 


 


 


 


 


 


 


 






    	 	10	 



     


    

 


 


 


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


 


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


 


“Settlement Amount” has
the meaning specified in ‎‎Section 14.02(a)(iv).


 


“Settlement Method” means,
with respect to any exchange of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to
have been elected) by the Company.


 


“Settlement Notice” has
the meaning specified in ‎‎Section 14.02(a)(iii).


 


“Significant Subsidiary”
means a Subsidiary of the Guarantor that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of
Regulation S-X under the Exchange Act.


 


“Specified Dollar Amount”
means the maximum cash amount per $1,000 principal amount of Notes to be received upon exchange as specified in the Settlement
Notice related to any exchanged Notes.


 


“Spin-Off” shall have
the meaning specified in ‎Section 14.04(c).


 


“Stock Price” shall have
the meaning specified in ‎Section 14.03(c).


 


“Subsidiary” means, with
respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii)
one or more Subsidiaries of such Person.


 


“Successor Company” shall
have the meaning specified in ‎‎‎‎Section 11.02(a)(i).


 


“Successor Guarantor”
shall have the meaning specified in ‎‎‎Section 11.01(a)(i).


 


“Trading Day” means a
day on which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs
on The Nasdaq Capital Market or, if the Common Stock (or such other security) is not then listed on The Nasdaq Capital Market,
on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then
listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price
for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market; provided
that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business
Day; and provided, further, that for purposes of determining amounts due upon exchange only, “Trading Day”
means a day on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The Nasdaq
Capital Market or, if the Common Stock is not then listed on The Nasdaq Capital Market, on the principal other U.S. national or
regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national
or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading,
except that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.


 


 


 


 






    	 	11	 



     


    

 


 


 


“Trading Price” of the
Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent
for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three
independent nationally recognized securities dealers the Company selects for this purpose; provided that if three such bids
cannot reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall be used. If the
Bid Solicitation Agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of Notes from a nationally recognized
securities dealer on any determination date, then the Trading Price per $1,000 principal amount of Notes on such determination
date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate.


 


“transfer” shall have
the meaning specified in ‎‎Section 2.05(c).


 


“Trigger Event” shall
have the meaning specified in ‎‎Section 14.04(c).


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture
Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.


 


“Trustee” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include
each Person who is then a Trustee hereunder.


 


“unit of Reference Property”
shall have the meaning specified in ‎‎Section 14.07(a).


 


“Valuation Period” shall
have the meaning specified in ‎‎Section 14.04(c).


 


 


 


 


 


 


 


 






    	 	12	 



     


    

 


 


 


“Wholly Owned Subsidiary”
means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference
to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.


 


Section 1.02.     
References to Interest. Unless the context otherwise requires, any reference to interest on, or in respect of, any
Note in this Indenture shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would
be payable pursuant to any of ‎‎Section 4.06(d), ‎‎Section
4.06(e) and ‎‎Section 6.03. Unless the context otherwise requires, any express
mention of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions
hereof where such express mention is not made.


 


Article
2

Issue, Description, Execution, Registration and Exchange of Notes


 


Section 2.01.     
Designation and Amount. The Notes shall be designated as the “1.250% Exchangeable Senior Notes due 2026.”
The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $143,750,000,
subject to ‎‎Section 2.10 and except for Notes authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.


 


Section 2.02.     
Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be
substantially in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby
expressly incorporated in and made a part of this Indenture. To the extent applicable, the Company, the Guarantor and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.


 


Any Global Note may be endorsed with or
have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Indenture
as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may
be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Notes are subject.


 


Any of the Notes may have such letters,
numbers or other marks of identification and such notations, legends or endorsements as any Officer executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation
of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or to conform
to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.


 


 


 


 


 


 


 


 






    	 	13	 



     


    

 


 


 


Each Global Note shall represent such principal
amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, exchanges for cash, shares
of Common Stock or a combination thereof, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance
with this Indenture. Payment of principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable)
of, and accrued and unpaid interest on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a
record date or other means of determining Holders eligible to receive payment is provided for herein.


 


Section 2.03.     
Date and Denomination of Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered
form without coupons in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. Each
Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of such Note. Accrued
interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months,
on the basis of the number of days actually elapsed in a 30-day month.


 


(b)           
The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business
on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such
Interest Payment Date. The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or
agency of the Company maintained by the Company for such purposes in the Borough of Manhattan, The City of New York, which shall
initially be the Corporate Trust Office and (y) in the case of any Global Note, shall be payable by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The Company shall pay interest (i) on any Physical Notes (A) to
Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these
Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal
amount of more than $5,000,000, either by check mailed to each Holder or, upon application by such a Holder to the Note Registrar
not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that Holder’s account
within the United States, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to
the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its
nominee.


 


(c)           
Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest
per annum at the rate borne by the Notes plus one percent, subject to the enforceability thereof under applicable law, from,
and including, such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:


 


 


 


 


 


 


 


 






    	 	14	 



     


    

 


 


 


(i)           
The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts,
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts
proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by
the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the
Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment, unless the Trustee shall consent to an earlier date. The Company shall promptly notify the Trustee
of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Amounts and the special record date therefor to be delivered to each Holder not less than 10 days prior
to such special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having
been so delivered, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the following
clause (ii) of this ‎‎Section 2.03(c).


 


(ii)           
The Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements
of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon
such notice as may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.


 


Section 2.04.     
Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of at least one of its Officers.


 


At any time and from time to time after
the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.


 


 


 


 


 


 


 






    	 	15	 



     


    

 


 


 


Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth on the Form of Note attached as Exhibit A hereto, executed manually
or by facsimile by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by ‎‎Section
17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated
has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.


 


In case any Officer of the Company who shall
have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and delivered
by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at
the date of the execution of this Indenture any such person was not such an Officer.


 


Section 2.05.     
 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company will maintain
in the continental United States an office or agency where the Notes may be surrendered for registration of transfer or exchange
(the “Notes Registrar”). The Notes Registrar will keep a record ( the “Note Register”)
of the names and addresses of the Holders, the Notes held by each Holder and the transfer or exchange of the Notes. The Notes Register
shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee
is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes
as herein provided. The Company may appoint one or more co-Note Registrars in accordance with ‎‎‎Section
4.02.


 


Upon surrender for registration of transfer
of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in
this ‎‎Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.


 


Notes may be exchanged for other Notes of
any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such
office or agency maintained by the Company pursuant to ‎‎‎Section
4.02. Whenever any Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver,
the Notes that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.


 


 


 


 


 


 


 


 






    	 	16	 



     


    

 


 


All Notes presented or surrendered for registration
of transfer or for exchange, repurchase, redemption or exchange for cash, shares of Common Stock or a combination thereof shall
(if so required by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the Company and duly executed, by the Holder thereof or
its attorney-in-fact duly authorized in writing.


 


No service charge shall be imposed by the
Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer
of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration
of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.


 


None of the Company, the Trustee, the Note
Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for exchange
for cash, shares of Common Stock or a combination thereof or, if a portion of any Note is surrendered for exchange for cash, shares
of Common Stock or a combination thereof, such portion thereof surrendered for exchange for cash, shares of Common Stock or a combination
thereof, or (ii) any Notes selected for redemption in accordance with ‎‎Article
16, except the unredeemed portion of any Note being redeemed in part.


 


All Notes issued upon any registration of
transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.


 


(b)           
So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject
to the fourth paragraph from the end of ‎‎Section 2.05(c) all Notes shall be represented by one or more Notes in
global form (each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall
be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions
on transfer set forth herein) and the procedures of the Depositary therefor.


 


(c)           
Every Note that bears or is required under this ‎‎Section 2.05(c) to bear the legend set forth in this ‎‎Section
2.05(c) (together with any Common Stock issued upon exchange of the Notes that is required to bear the legend set forth in ‎‎Section
2.05(d), collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth
in this ‎‎Section 2.05(c) (including the legend set forth below), unless such restrictions on transfer shall be
eliminated or otherwise waived by written consent of the Company, and the Holder of each such Restricted Security, by such Holder’s
acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this ‎‎Section 2.05(c) and
‎Section 2.05(d), the term “transfer” encompasses any sale, pledge, transfer or other disposition
whatsoever of any Restricted Security.


 


 


 


 


 


 


 


 






    	 	17	 



     


    

 


 


 


Until the date (the “Resale Restriction
Termination Date”) that is the later of (1) the date that is one year after the last date of original issuance of the
Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if
any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor
or substitution thereof, other than Common Stock, if any, issued upon exchange thereof, which shall bear the legend set forth in‎
‎Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been
transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues
to be effective at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar
provision then in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to
the Trustee):


 


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


 


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


 


(2)       AGREES
FOR THE BENEFIT OF AVID SPV, LLC (THE “COMPANY”) AND AVID BIOSERVICES, INC. (THE “GUARANTOR”)
THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144
UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,
EXCEPT:


 


(A)           
TO THE COMPANY, GUARANTOR OR ANY SUBSIDIARY THEREOF, OR


 


(B)           
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


 


 


 


 


 


 


 


 






    	 	18	 



     


    

 


 


 


(C)           
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D)           
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY
TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY, GUARANTOR AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY
OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS
TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


No transfer of any Note prior to the Resale
Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer
has been checked.


 


Any Note (or security issued in exchange
or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii)
that has been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities
Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from
registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such
Note for exchange to the Note Registrar in accordance with the provisions of this ‎‎Section
2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this ‎‎Section 2.05(c) and shall not
be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian in writing to so surrender any Global
Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied,
and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged
therefor shall not bear the restrictive legend specified in this ‎‎Section
2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee upon the occurrence
of the Resale Restriction Termination Date and promptly after a registration statement, if any, with respect to the Notes or any
Common Stock issued upon exchange of the Notes has been declared effective under the Securities Act.


 


Notwithstanding any other provisions of
this Indenture (other than the provisions set forth in this ‎‎Section
2.05(c)), a Global Note may not be transferred as a whole or in part except (i) 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 or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a Global Note or a portion thereof
for one or more Physical Notes in accordance with the second immediately succeeding paragraph.


 


 


 


 


 


 


 


 






    	 	19	 



     


    

 


 


 


The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect
to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as
the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.


 


If (i) the Depositary notifies the Company
at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary
is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a
successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is
continuing and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company
shall execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the authentication and delivery
of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal
amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in
the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an
aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and
upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.


 


Physical Notes issued in exchange for all
or a part of the Global Note pursuant to this ‎‎Section
2.05(c) shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately preceding paragraph, the relevant
beneficial owner, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical Notes
to the Persons in whose names such Physical Notes are so registered.


 


At such time as all interests in a Global
Note have been exchanged, canceled, repurchased, redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled
by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any
time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, exchanged, canceled, repurchased,
redeemed or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for
part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement
shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction
or increase.


 


 


 


 


 


 


 






    	 	20	 



     


    

 


 


 


None of the Company, the Guarantor, the
Trustee or any agent of the Company, the Guarantor or the Trustee shall have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.


 


(d)           
Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon exchange of a
Note shall bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of
such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under
the Securities Act, or such Common Stock has been issued upon exchange of a Note that has transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of
such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under
the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent
for the Common Stock):


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
ACQUIRER:


 


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


 


(2)       AGREES
FOR THE BENEFIT OF AVID SPV, LLC (THE “COMPANY”) AND AVID BIOSERVICES, INC. (THE “GUARANTOR”)
THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT
IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF THE SERIES OF NOTES UPON THE EXCHANGE OF WHICH THIS SECURITY
WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


 


 


 


 


 


 






    	 	21	 



     


    

 


 


 


(A)           
TO THE COMPANY, GUARANTOR OR ANY SUBSIDIARY THEREOF, OR


 


(B)           
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C)           
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D)           
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER
IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY, THE GUARANTOR AND THE TRANSFER AGENT FOR THE GUARANTOR’S COMMON STOCK
RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED
IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 


Any such Common Stock (i) as to which such
restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of
such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision
then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange
in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate or certificates
for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this ‎
‎Section 2.05(d).


 


(e)           
Any Note or Common Stock issued upon the exchange of a Note that is repurchased or owned by any Affiliate of the Company
(or any Person who was an Affiliate of the Company at any time during the three months immediately preceding) may not be resold
by such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption
from the registration requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case
may be, no longer being a “restricted security” (as defined under Rule 144). The Company shall cause any Note that
is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with ‎‎Section 2.08.


 


 


 


 


 


 


 


 






    	 	22	 



     


    

 


 


 


Section 2.06.     
Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon its written request the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange
and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every
case the applicant for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating
agent such security or indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish
to the Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof.


 


The Trustee or such authenticating agent
may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee,
the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Guarantor,
the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company
may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection
therewith as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old
Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been
surrendered for required repurchase or is about to be exchanged in accordance with ‎‎Article
14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute
Note, pay or authorize the payment of or exchange or authorize the exchange of the same (without surrender thereof except in the
case of a mutilated Note), as the case may be, if the applicant for such payment or exchange shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of
them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction,
loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Exchange Agent evidence
of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.


 


Every substitute Note issued pursuant to
the provisions of this ‎‎Section 2.06 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Note shall be found at any time, and shall be entitled to all the benefits of (but shall be subject
to all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
To the extent permitted by law, all Notes shall be held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement, payment, redemption, exchange or repurchase of mutilated, destroyed, lost or stolen
Notes and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement, payment, redemption, exchange or repurchase of negotiable instruments or other
securities without their surrender.


 


 


 


 


 


 


 


 






    	 	23	 



     


    

 


 


 


Section 2.07.     
Temporary Notes. Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or
lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical
Notes but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by
the Company. Every such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating
agent upon the same conditions and in substantially the same manner, and with the same effect, as the Physical Notes. Without unreasonable
delay, the Company shall execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global
Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office
or agency maintained by the Company pursuant to ‎‎‎Section 4.02 and the
Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal
amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until
so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under
this Indenture as Physical Notes authenticated and delivered hereunder.


 


Section 2.08.     
Cancellation of Notes Paid, Exchanged, Etc. The Company shall cause all Notes surrendered for the purpose of payment,
repurchase, redemption, registration of transfer or exchange or exchange for cash, shares of Common Stock or a combination thereof,
if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries or Affiliates),
to be surrendered to the Trustee for cancellation. All Notes delivered to the Trustee shall be canceled promptly by it. Except
for any Notes surrendered for registration of transfer or exchange, or as otherwise expressly permitted by any of the provisions
of this Indenture, no Notes shall be authenticated in exchange for any Notes surrendered to the Trustee for cancellation. The Trustee
shall dispose of canceled Notes in accordance with its customary procedures and, after such disposition, shall deliver a certificate
of such disposition to the Company, at the Company’s written request in a Company Order.


 


Section 2.09.     
CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes
or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


 


 


 


 


 


 


 






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Section 2.10.     
Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding ‎‎Section
2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other
than differences in the issue date, the issue price and interest accrued prior to the issue date of such additional Notes) in an
unlimited aggregate principal amount; provided that if any such additional Notes are not fungible with the Notes initially
issued hereunder for U.S. federal income tax purposes, such additional Notes shall have a separate CUSIP number. Prior to the issuance
of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion
of Counsel, such Officer’s Certificate and Opinion of Counsel to cover such matters, in addition to those required by ‎‎Section
17.05, as the Trustee shall reasonably request. In addition, the Company or the Guarantor may, to the extent permitted by law,
and directly or indirectly (regardless of whether such Notes are surrendered to the Company or the Guarantor), repurchase Notes
in the open market or otherwise, whether by the Company, the Guarantor or Guarantor’s other Subsidiaries or through a private
or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives.
The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives)
to be surrendered to the Trustee for cancellation in accordance with ‎‎Section
2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.


 


Article
3

Satisfaction and Discharge


 


Section 3.01.     
Satisfaction and Discharge. This Indenture shall upon request of the Company contained in an Officer’s Certificate
cease to be of further effect, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes which have been
destroyed, lost or stolen and which have been replaced, paid or exchanged as provided in ‎‎Section
2.06) have been delivered to the Trustee for cancellation; or (ii) the Company or the Guarantor has deposited with the Trustee
or delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption
Date, any Fundamental Change Repurchase Date, upon exchange or otherwise, cash or cash, shares of Common Stock or a combination
thereof, as applicable, solely to satisfy the Company’s Exchange Obligation, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay all of the
outstanding Notes and all other sums due and payable under this Indenture by the Company and the Guarantor; and (b) the Company
has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company, the Guarantor to the Trustee under ‎‎Section
7.06 shall survive.


 


 


 


 


 


 


 






    	 	25	 



     


    

 


 


 


Article
4

Particular Covenants of the Company and the Guarantor


 


Section 4.01.     
Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal (including
the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of
the Notes at the places, at the respective times and in the manner provided herein and in the Notes.


 


Section 4.02.     
Maintenance of Office or Agency. The Company and the Guarantor will maintain in the continental United States an
office or agency where the Notes may be surrendered for presentation for payment or repurchase (“Paying Agent”)
or for exchange (“Exchange Agent”) and where notices and demands to or upon the Company or the Guarantor in
respect of the Notes and this Indenture may be served. The Company or the Guarantor will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If at any time the Company or the Guarantor shall fail
to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency of the Trustee in the
Borough of Manhattan, The City of New York.


 


The Company may also from time to time designate
as co-Note Registrars, co-Paying Agents and co-Exchange Agents and one or more other offices or agencies where the Notes may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that
no such designation or rescission shall in any manner relieve the Company or the Guarantor of its obligation to maintain an office
or agency in the continental United States for such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such other office or agency. The terms, “Note
Registrar”, “Paying Agent” and “Exchange Agent” include any such additional or
other offices or agencies, as applicable.


 


The Company hereby initially designates
the Trustee as the Paying Agent, Note Registrar, Custodian and Exchange Agent and the Corporate Trust Office as the office or agency
in the continental United States where Notes may be surrendered for registration of transfer or exchange or for presentation for
payment, redemption or repurchase and where notices and demands to or upon the Company or the Guarantor in respect of the Notes
and this Indenture may be served.


 


Section 4.03.     
Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in ‎‎Section
7.09, a Trustee, so that there shall at all times be a Trustee hereunder.


 


Section 4.04.     
Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, the Company
will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this ‎‎Section 4.04:


 


 


 


 


 


 


 


 






    	 	26	 



     


    

 


 


 


(i)           
that it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and
the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit
of the Holders of the Notes;


 


(ii)           
that it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including
the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes
when the same shall be due and payable; and


 


(iii)           
that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.


 


The Company shall, on or before each due
date of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued
and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent
is the Trustee) the Paying Agent will promptly notify the Trustee of any failure by the Company to take such action; provided
that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time,
on such date.


 


(b)           
If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside,
segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest
on, the Notes when the same shall become due and payable.


 


(c)           
Anything in this ‎‎‎Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the
purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver
to the Trustee all sums or amounts held in trust by the Company or any Paying Agent hereunder as required by this ‎‎‎Section
4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the
Company or any Paying Agent to the Trustee, the Company or such Paying Agent shall be released from all further liability but only
with respect to such sums or amounts.


 


 


 


 


 


 


 


 






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(d)           
Any money and shares of Common Stock deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of,
accrued and unpaid interest on and the consideration due upon exchange of any Note and remaining unclaimed for two years after
such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration
due upon exchange has become due and payable shall be paid to the Company on request of the Company contained in an Officer’s
Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter,
as an unsecured general creditor, look only to the Company and the Guarantor for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money and shares of Common Stock, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The Borough of Manhattan, The City of New York, notice
that such money and shares of Common Stock remain unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money and shares of Common Stock then remaining will be
repaid or delivered to the Company.


 


Section 4.05.     
Existence. Subject to ‎‎Article 11, each of the Company and the
Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and effect its limited liability
company or corporate existence.


 


Section 4.06.     
Rule 144A Information Requirement and Annual Reports. (a) At any time the Guarantor is not subject to Section 13
or 15(d) of the Exchange Act, the Guarantor shall, so long as any of the Notes or any shares of Common Stock issuable upon exchange
thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities
Act, promptly provide to the Trustee and, upon written request, any Holder, beneficial owner or prospective purchaser of such Notes
or any shares of Common Stock issuable upon exchange of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A. The Company and
the Guarantor shall take such further action as any Holder or beneficial owner of such Notes or such Common Stock may reasonably
request to the extent from time to time required to enable such Holder or beneficial owner to sell such Notes or shares of Common
Stock in accordance with Rule 144A, as such rule may be amended from time to time.


 


(b)           
The Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission, copies
of any documents or reports that the Guarantor is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act). Any such document or report that the Guarantor
files with the Commission via the Commission’s EDGAR system shall be deemed to be filed with the Trustee for purposes of
this ‎‎Section 4.06(b) at the time such documents are filed via the EDGAR system.


 


 


 


 


 


 


 


 






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(c)           
Delivery of the reports and documents described in subsection ‎(b) above to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s and/or the Guarantor’s compliance with
any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate). The
trustee shall have no liability or responsibility for the filing, timeliness or content of such reports.


 


(d)           
If, at any time during the six-month period beginning on, and including, the date that is six months after the last date
of original issuance of the Notes, the Guarantor fails to timely file any document or report that it is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods
thereunder and other than reports on Form 8-K), or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders
other than the Company’s or Guarantor’s Affiliates or Holders that were the Company’s or Guarantor’s Affiliates
at any time during the three months immediately preceding (as a result of restrictions pursuant to U.S. securities laws or the
terms of this Indenture or the Notes), the Company shall pay Additional Interest on the Notes. Such Additional Interest shall accrue
on the Notes at the rate of 0.50% per annum of the principal amount of the Notes outstanding for each day during such period for
which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise freely tradable pursuant
to Rule 144 by Holders other than the Company’s or the Guarantor’s Affiliates (or Holders that were the Company’s
or the Guarantor’s Affiliates at any time during the three months immediately preceding) without restrictions pursuant to
U.S. securities laws or the terms of this Indenture or the Notes. As used in this ‎Section 4.06(d), documents or reports
that the Guarantor is required to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act does
not include documents or reports that the Guarantor furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange
Act.


 


(e)           
If, and for so long as, the restrictive legend on the Notes specified in ‎‎Section 2.05(c) has not been removed,
the Notes are assigned a restricted CUSIP or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other
than the Company’s or the Guarantor’s Affiliates or Holders that were the Company’s or the Guarantor’s
Affiliates at any time during the three months immediately preceding (without restrictions pursuant to U.S. securities laws or
the terms of this Indenture or the Notes) as of the 370th day after the last date of original issuance of the Notes, the Company
shall pay Additional Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until
the restrictive legend on the Notes has been removed in accordance with ‎‎Section 2.05(c), the Notes are assigned
an unrestricted CUSIP and the Notes are freely tradable pursuant to Rule 144 by Holders other than the Company’s or the Guarantor’s
Affiliates (or Holders that were the Company’s or the Guarantor’s Affiliates at any time during the three months immediately
preceding) without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes.


 


 


 


 


 


 


 


 






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(f)            
Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular
interest on the Notes.


 


(g)           
The Additional Interest that is payable in accordance with ‎Section 4.06(d) or ‎Section 4.06(e) shall
be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election
pursuant to ‎‎Section 6.03.


 


(h)           
If Additional Interest is payable by the Company pursuant to ‎Section 4.06(d) or ‎Section 4.06(e),
the Company shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional
Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and until a Responsible Officer
of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Additional
Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver
to the Trustee an Officer’s Certificate setting forth the particulars of such payment.


 


Section 4.07.     
Stay, Extension and Usury Laws. Each of the Company and the Guarantor covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law or other law that would prohibit or forgive the Company or the Guarantor from paying all or any
portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or that may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantor (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.


 


Section 4.08.     
Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Guarantor (beginning with the fiscal year ending on April 30, 2022) an Officer’s Certificate
stating whether the signers thereof have knowledge of any failure by the Company or the Guarantor to comply with all conditions
and covenants then required to be performed under this Indenture and, if so, specifying each such failure and the nature thereof.


 


In addition, the Company shall deliver to
the Trustee, as soon as possible, and in any event within 30 days after the occurrence of any Event of Default, an Officer’s
Certificate setting forth the details of such Event of Default, its status and the action that the Company or the Guarantor is
taking or proposing to take in respect thereof.


 


Section 4.09.     
Further Instruments and Acts. Upon request of the Trustee, each of the Company and the Guarantor will execute and
deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively
the purposes of this Indenture.


 


 


 


 


 


 


 






    	 	30	 



     


    

 


 


 


Article
5

[RESERVED]


 


Article
6

Defaults and Remedies


 


Section 6.01.     
Events of Default. Each of the following events shall be an “Event of Default” with respect to
the Notes:


 


(a)           
default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;


 


(b)           
default in the payment of principal of any Note when due and payable on the Maturity Date, upon Optional Redemption, upon
any required repurchase, upon declaration of acceleration or otherwise;


 


(c)           
failure by the Company to comply with its obligation to exchange the Notes in accordance with this Indenture upon exercise
of a Holder’s exchange right;


 


(d)           
failure by the Company to issue a Fundamental Change Company Notice in accordance with ‎‎‎Section 15.01(c),
notice of a Make-Whole Fundamental Change in accordance with ‎‎Section 14.03(b) or notice of a specified corporate
event in accordance with ‎Section 14.01(b)(ii) or ‎14.01(b)(iii), in each case when due;


 


(e)           
failure by the Company to comply with its obligations under ‎‎Article 11;


 


(f)            
failure by the Company or the Guarantor for 60 days after written notice from the Trustee or the Holders of at least 25%
in principal amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained
in the Notes or this Indenture;


 


(g)           
default by the Company, the Guarantor or any Subsidiary of the Company or the Guarantor with respect to any mortgage, agreement
or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money
borrowed in excess of $10,000,000 (or its foreign currency equivalent) in the aggregate of the Company, the Guarantor and/or any
such Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming
or being declared due and payable or (ii) constituting a failure to pay the principal or interest of any such debt when due and
payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise;


 


(h)           
a final judgment or judgments for the payment of $10,000,000 (or its foreign currency equivalent) or more (excluding any
amounts covered by insurance) in the aggregate rendered against the Company, the Guarantor or any Subsidiary of the Company or
the Guarantor, which judgment is not discharged, bonded, paid, waived or stayed within 60 days after (i) the date on which the
right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished;


 


 


 


 


 


 


 


 






    	 	31	 



     


    

 


 


 


(i)            
the Company, the Guarantor or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company, the Guarantor or any such Significant Subsidiary or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Company, the Guarantor or any such Significant Subsidiary or any substantial part of
its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally
to pay its debts as they become due;


 


(j)            
an involuntary case or other proceeding shall be commenced against the Company, the Guarantor or any Significant Subsidiary
seeking liquidation, reorganization or other relief with respect to the Company, the Guarantor or such Significant Subsidiary or
its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company, the Guarantor or such Significant Subsidiary or any substantial
part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 consecutive
days; or


 


(k)           
except as permitted in this Indenture, the Guarantee shall be held in any judicial proceeding to be unenforceable or invalid
or shall cease for any reason to be in full force and effect, or the Guarantor, or any Person acting on its behalf, shall deny
or disaffirm in writing its obligation under the Guarantee.


 


Section 6.02.     
Acceleration; Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then,
and in each and every such case (other than an Event of Default specified in ‎‎Section
6.01(i) or ‎‎Section 6.01(j) with respect to the Company, the Guarantor or
any of its Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, either
the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance
with ‎‎Section 8.04, by notice in writing to the Company and the Guarantor
(and to the Trustee if given by Holders), may (and the Trustee, at the written request of such Holders, shall) declare 100% of
the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration
the same shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes
to the contrary notwithstanding. If an Event of Default specified in ‎‎‎Section
6.01(i) or ‎‎Section 6.01(j) with respect to the Company, the Guarantor or
any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if any,
on, all Notes shall become and shall automatically be immediately due and payable.


 


 


 


 


 


 


 






    	 	32	 



     


    

 


 


 


The immediately preceding paragraph, however,
is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable,
and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided,
the Company or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid
interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with
interest on overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under
applicable law, and on such principal at the rate borne by the Notes at such time, plus one percent) and amounts due to
the Trustee pursuant to ‎‎Section 7.06, and if (1) rescission
would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default
under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall
have become due solely by such acceleration, shall have been cured or waived pursuant to ‎‎Section
6.09, then and in every such case (except as provided in the immediately succeeding sentence) the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, by written notice to the Company, to the Guarantor and to the Trustee,
may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences
and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default
or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver
or rescission and annulment shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of
the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid
interest on, any Notes, (ii) a failure to repurchase any Notes when required or (iii) a failure to pay or deliver, as the case
may be, the consideration due upon exchange of the Notes.


 


Section 6.03.     
Additional Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the
Company elects, the sole remedy for an Event of Default relating to the Guarantor’s failure to comply with its obligations
as set forth in ‎‎Section 4.06(b) shall after the occurrence of such an Event
of Default consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to 0.25% per annum of the
principal amount of the Notes outstanding for each day during the first 60 days after the occurrence of such an Event of Default
and 0.50% per annum of the principal amount of the Notes outstanding from the 61st day to, and including, the 180th
day following the occurrence of such an Event of Default. Additional Interest payable pursuant to this ‎Section
6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to ‎Section
4.06(d) or ‎Section 4.06(e). If the Company so elects, such Additional Interest
shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On the 181st day after such
Event of Default (if the Event of Default relating to the Guarantor’s failure to file is not cured or waived prior to such
181st day), the Notes shall be immediately subject to acceleration as provided in ‎‎Section
6.02. The provisions of this paragraph will not affect the rights of Holders of Notes in the event of the occurrence of any Event
of Default other than the Guarantor’s failure to comply with its obligations as set forth in ‎‎‎Section
4.06(b). In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance with this
‎‎‎Section 6.03 or the Company elected to make such payment but does not
pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in ‎‎Section
6.02.


 


 


 


 


 


 


 


 






    	 	33	 



     


    

 


 


 


In order to elect to pay Additional Interest
as the sole remedy during the first 180 days after the occurrence of any Event of Default described in the immediately preceding
paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election prior to the beginning
of such 180-day period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as
provided in‎ ‎‎Section 6.02.


 


Section 6.04.     
Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause ‎‎(a)
or ‎(b) of ‎‎Section 6.01 shall
have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes,
the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and
interest, if any, at the rate borne by the Notes at such time, plus one percent, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under ‎‎Section
7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding
to judgment or final decree and may enforce the same against the Company, the Guarantor or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor
or any other obligor upon the Notes, wherever situated.


 


In the event there shall be pending proceedings
for the bankruptcy or for the reorganization of the Company, the Guarantor or any other obligor on the Notes under Title 11 of
the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company, the Guarantor or
such other obligor, the property of the Company, the Guarantor or such other obligor, or in the event of any other judicial proceedings
relative to the Company, the Guarantor or such other obligor upon the Notes, or to the creditors or property of the Company, the
Guarantor or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant
to the provisions of this ‎‎Section 6.04, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal
and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs
of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company, the Guarantor or any other
obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under
‎‎Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such
payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements,
including agents and counsel fees, and including any other amounts due to the Trustee under ‎‎Section
7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses,
advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property
that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization
or arrangement or otherwise.


 


 


 


 


 


 


 


 






    	 	34	 



     


    

 


 


 


Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.


 


All rights of action and of asserting claims
under this Indenture, or under any of the Notes or the Guarantee, may be enforced by the Trustee without the possession of any
of the Notes or the Guarantee, or the production thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Notes.


 


In any proceedings brought by the Trustee
(and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party)
the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes
parties to any such proceedings.


 


In case the Trustee shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver
pursuant to ‎‎Section 6.09 or any rescission and annulment
pursuant to ‎‎‎Section 6.02 or for any other reason
or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantor, the Holders and
the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Guarantor, the Holders and the Trustee shall continue as though
no such proceeding had been instituted.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	35	 



     


    

 


 


 


Section 6.05.     
Application of Monies Collected by Trustee. Any monies collected by the Trustee pursuant to this ‎‎Article
6 with respect to the Notes or the Guarantee shall be applied in the following order, at the date or dates fixed by the Trustee
for the distribution of such monies, upon presentation of the several Notes, and stamping thereon the payment, if only partially
paid, and upon surrender thereof, if fully paid:


 


First, to the payment of all amounts
due the Trustee under ‎‎Section 7.06;


 


Second, in case the principal of
the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon exchange of,
the Notes in default in the order of the date due of the payments of such interest and cash due upon exchange, as the case may
be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne
by the Notes at such time, plus one percent, such payments to be made ratably to the Persons entitled thereto;


 


Third, in case the principal of the
outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including,
if applicable, the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon exchange)
then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent
that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such
time plus one percent, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price and the Fundamental Change
Repurchase Price and any cash due upon exchange) and interest without preference or priority of principal over interest, or of
interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other
Note, ratably to the aggregate of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase
Price and any cash due upon exchange) and accrued and unpaid interest; and


 


Fourth, to the payment of the remainder,
if any, to the Company.


 


Section 6.06.     
Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the
Redemption Price and the Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery
of the consideration due upon exchange, no Holder of any Note shall have any right by virtue of or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture,
or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder,
unless:


 


 


 


 


 


 


 


 






    	 	36	 



     


    

 


 


 


(a)           
such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof,
as herein provided;


 


(b)           
Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;


 


(c)           
such Holders shall have offered to the Trustee such security or indemnity satisfactory to it against any loss, liability
or expense to be incurred therein or thereby;


 


(d)           
the Trustee for 60 days after its receipt of such notice, request and offer of such security or indemnity, shall have neglected
or refused to institute any such action, suit or proceeding; and


 


(e)           
no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the
Trustee by the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding within such 60-day
period pursuant to ‎‎Section 6.09, it being understood and intended, and being expressly covenanted by the taker
and Holder of every Note with every other taker and Holder and the Trustee that no one or more Holders shall have any right in
any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights
of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except
as otherwise provided herein). For the protection and enforcement of this ‎‎Section
6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.


 


Notwithstanding any other provision of this
Indenture and any provision of any Note, each Holder shall have the right to receive payment or delivery, as the case may be, of
(x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and
unpaid interest, if any, on, and (z) the consideration due upon exchange of, such Note, on or after the respective due dates expressed
or provided for in such Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as
the case may be.


 


Section 6.07.     
Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce
any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.


 


 


 


 


 


 


 


 






    	 	37	 



     


    

 


 


 


Section 6.08.     
Remedies Cumulative and Continuing. Except as provided in the last paragraph of ‎‎‎Section
2.06, all powers and remedies given by this ‎‎Article 6 to the Trustee or to
the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers
and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder
of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or
power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to
the provisions of ‎‎Section 6.06, every power and remedy given by this ‎‎‎Article
6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Holders.


 


Section 6.09.     
Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of at least a majority of the
aggregate principal amount of the Notes at the time outstanding determined in accordance with ‎‎Section
8.04 shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the Notes or the Guarantee; provided, however,
that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction
that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability.
The Holders of at least a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance
with ‎Section 8.04 may on behalf of the Holders of all of the Notes waive any past
Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest,
if any, on, or the principal (including any Redemption Price and any Fundamental Change Repurchase Price) of, the Notes when due
that has not been cured pursuant to the provisions of ‎‎Section 6.01, (ii)
a failure by the Company to pay or deliver, as the case may be, the consideration due upon exchange of the Notes or (iii) a default
in respect of a covenant or provision hereof which under ‎‎Article 10 cannot
be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the
Guarantor, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any
Default or Event of Default hereunder shall have been waived as permitted by this ‎‎‎Section
6.09, said Default or Event of Default shall for all purposes of the Notes, the Guarantee and this Indenture be deemed to have
been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.


 


Section 6.10.     
Notice of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of a Default of which
a Responsible Officer has actual knowledge, deliver to all Holders notice of all Defaults known to a Responsible Officer, unless
such Defaults shall have been cured or waived before the giving of such notice; provided that, except in the case of a Default
in the payment of the principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable),
or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon exchange,
the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.


 


 


 


 


 


 


 


 






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Section 6.11.     
Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof
shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, 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
costs, including reasonable attorneys’ fees and expenses, 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
6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined
in accordance with ‎‎Section 8.04, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not
limited to, the Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed
or provided for in such Note or to any suit for the enforcement of the right to exchange any Note, or receive the consideration
due upon exchange, in accordance with the provisions of ‎‎Article 14.


 


Article
7

Concerning the Trustee


 


Section 7.01.     
Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the
curing or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In the event an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent
person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if
an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under
this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security
satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.


 


No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act
or its own willful misconduct, except that:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






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(a)           
prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:


 


(i)           
the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture
and no implied covenants or obligations shall be read into this Indenture against the Trustee; and


 


(ii)           
in the absence of bad faith and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that
by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of any mathematical calculations or other facts stated therein);


 


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


 


(c)           
the Trustee 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 not less than a majority of the aggregate principal amount of the Notes at the time outstanding
determined as provided in ‎‎Section 8.04 relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;


 


(d)           
whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of,
or affording protection to, the Trustee shall be subject to the provisions of this Section;


 


(e)           
the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any
other matters relating to payment) or notice effected by the Company, the Guarantor or any Paying Agent or any records maintained
by any co-Note Registrar with respect to the Notes;


 


(f)            
if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice
to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such
event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event;


 


(g)           
in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest
bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred
thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure
of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide
timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder
in the absence of such written investment direction from the Company; and


 


 


 


 


 


 


 






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(h)           
in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Exchange Agent, Bid Solicitation
Agent or transfer agent hereunder, the rights and protections afforded to the Trustee pursuant to this ‎‎Article
7 shall also be afforded to such Custodian, Note Registrar, Paying Agent, Exchange Agent, Bid Solicitation Agent or transfer agent.


 


None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or powers.


 


Section 7.02.     
Reliance on Documents, Opinions, Etc. Except as otherwise provided in ‎‎Section
7.01:


 


(a)           
the Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to
be genuine and to have been signed or presented by the proper party or parties;


 


(b)           
any request, direction, order or demand of the Company or the Guarantor mentioned herein shall be sufficiently evidenced
by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof certified by the Secretary or an Officer of the Company or the Guarantor, as
the case may be;


 


(c)           
the Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;


 


(d)           
the Trustee 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 or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company and the Guarantor, personally or by agent or attorney at the expense of the Company or Guarantor, as
the case may be, and shall incur no liability of any kind by reason of such inquiry or investigation;


 


 


 


 


 


 


 


 






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(e)           
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part
of any agent, custodian, nominee or attorney appointed by it with due care hereunder; and


 


(f)            
the permissive rights of the Trustee enumerated herein shall not be construed as duties.


 


In no event shall the Trustee be liable
for any consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has
been advised of the likelihood of such loss or damage and regardless of the form of action other than any such loss or damage caused
by the Trustee’s willful misconduct or gross negligence. The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Notes or the Guarantee, unless and until written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or by any Holder of the Notes, and such notice clearly references the Notes
and this Indenture.


 


Section 7.03.     
No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s
certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes.
The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated
and delivered by the Trustee in conformity with the provisions of this Indenture.


 


Section 7.04.     
Trustee, Paying Agents, Exchange Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any
Paying Agent, any Exchange Agent, Bid Solicitation Agent (if other than the Company or any Affiliate thereof) or Note Registrar,
in its individual or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not the Trustee, Paying Agent, Exchange Agent, Bid Solicitation Agent or Note Registrar.


 


Section 7.05.     
Monies and Shares of Common Stock to Be Held in Trust. All monies and shares of Common Stock received by the Trustee
shall, until used or applied as herein provided, be held in trust for the purposes for which they were received. Money and shares
of Common Stock held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on any money or shares of Common Stock received by it hereunder except
as may be agreed from time to time by the Company and the Trustee.


 


Section 7.06.     
Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder in any capacity (which shall
not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all expenses,
disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture
in any capacity thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel
and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its
gross negligence, willful misconduct or bad faith. The Company also covenants to indemnify the Trustee in any capacity under this
Indenture and any other document or transaction entered into in connection herewith and its agents and any authenticating agent
for, and to hold them harmless against, any loss, claim, damage, liability or expense incurred without gross negligence, willful
misconduct or bad faith on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating
agent, as the case may be, and arising out of or in connection with the acceptance or administration of this Indenture or in any
other capacity hereunder, including the costs and expenses of defending themselves against any claim of liability in the premises.
The obligations of the Company under this ‎‎Section 7.06 to compensate or indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured by a senior claim to
which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject to the effect
of ‎‎Section 6.05, funds held in trust herewith for the benefit of the Holders
of particular Notes. The Trustee’s right to receive payment of any amounts due under this ‎‎Section
7.06 shall not be subordinate to any other liability or indebtedness of the Company. The obligation of the Company under this ‎‎Section
7.06 shall survive the satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee. The
Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification
provided in this ‎‎Section 7.06 shall extend to the officers, directors, agents
and employees of the Trustee.


 


 


 


 


 


 


 






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Without prejudice to any other rights available
to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in ‎‎‎Section 6.01(i)
or ‎‎Section 6.01(j) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.


 


Section 7.07.     
Officer’s Certificate as Evidence. Except as otherwise provided in ‎‎Section
7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to
the Trustee, and such Officer’s Certificate, in the absence of gross negligence, willful misconduct, recklessness and bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions
of this Indenture upon the faith thereof.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






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Section 7.08.     
Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital
and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for the purposes of this Section, 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.
If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.


 


Section 7.09.     
Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving written notice of such resignation
to the Company and by delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument, in duplicate, executed by order of the Company’s Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment within 60 days after the giving of such notice of resignation to the
Holders, the resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders, petition any court of
competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes
for at least six months (or since the date of this Indenture) may, subject to the provisions of ‎‎Section
6.11, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.


 


(b)           
In case at any time any of the following shall occur:


 


(i)           
the Trustee shall cease to be eligible in accordance with the provisions of ‎‎Section 7.08 and shall
fail to resign after written request therefor by the Company or by any Holder, or


 


(ii)           
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,


 


then, in either case, the Company may by a Board Resolution
remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Company’s
Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of ‎‎Section 6.11, any Holder
who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on behalf
of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.


 


 


 


 


 


 


 


 






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(c)           
The Holders of at least a majority in aggregate principal amount of the Notes at the time outstanding, as determined in
accordance with ‎‎Section 8.04, may at any time remove the Trustee and nominate a successor trustee that shall be
deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects
thereto, in which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise as in ‎‎Section
7.09 provided, may petition any court of competent jurisdiction for an appointment of a successor trustee.


 


(d)           
Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this
‎‎Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in ‎‎Section
7.10.


 


Section 7.10.     
Acceptance by Successor Trustee. Any successor trustee appointed as provided in ‎‎‎Section
7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company
or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions
of ‎‎Section 7.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company and
the Guarantor shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are
hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for
the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of ‎‎Section
7.06.


 


No successor trustee shall accept appointment
as provided in this ‎‎Section 7.10 unless at the time of
such acceptance such successor trustee shall be eligible under the provisions of ‎
‎‎Section 7.08.


 


Upon acceptance of appointment by a successor
trustee as provided in this ‎‎Section 7.10, each of the
Company and the successor trustee, at the written direction and at the expense of the Company shall deliver or cause to be delivered
notice of the succession of such trustee hereunder to the Holders. If the Company fails to deliver such notice within ten days
after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be delivered at the
expense of the Company.


 


Section 7.11.     
Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust
business of the Trustee (including the administration of this Indenture), shall be the successor to the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that in the case
of any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee such corporation
or other entity shall be eligible under the provisions of ‎ ‎‎Section 7.08.


 


 


 


 


 


 


 


 






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In case at the time such successor to the
Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent
appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate
such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor
trustee or to authenticate Notes or the Guarantee in the name of any predecessor trustee shall apply only to its successor or successors
by merger, conversion or consolidation.


 


Section 7.12.     
Trustee’s Application for Instructions from the Company or the Guarantor. Any application by the Trustee for
written instructions from the Company or the Guarantor (other than with regard to any action proposed to be taken or omitted to
be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee,
set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to the Company or the Guarantor
for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the
date specified in such application (which date shall not be less than three Business Days after the date any officer that the Company
or the Guarantor has indicated to the Trustee should receive such application actually receives such application, unless any such
officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in
the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to
such application specifying the action to be taken or omitted.


 


Article
8

Concerning the Holders


 


Section 8.01.     
Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate
principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent
or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by
Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any
meeting of Holders duly called and held in accordance with the provisions of ‎‎Article
9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the Company
or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be
required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action.
The record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such
action.


 


 


 


 


 


 


 


 






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Section 8.02.     
Proof of Execution by Holders. Subject to the provisions of ‎‎Section
7.01, ‎‎Section 7.02 and ‎‎Section
9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’
meeting shall be proved in the manner provided in ‎‎Section 9.06.


 


Section 8.03.     
Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Exchange
Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may
treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership
or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment
of or on account of the principal (including any Redemption Price and any Fundamental Change Repurchase Price) of and (subject
to ‎‎Section 2.03) accrued and unpaid interest on such Note, for exchange of
such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Exchange Agent nor any
Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time
being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual
to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything to
the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note
may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary
or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance
with the provisions of this Indenture.


 


Section 8.04.     
Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of
Notes have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company,
the Guarantor, by any Subsidiary thereof or by any Affiliate of the Company, the Guarantor or any Subsidiary thereof shall be disregarded
and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, consent, waiver or other action only Notes that a Responsible
Officer knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding
for the purposes of this ‎‎Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company,
the Guarantor, a Subsidiary thereof or an Affiliate of the Company, the Guarantor or a Subsidiary thereof. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes,
if any, known by the Company to be owned or held by or for the account of any of the above described Persons; and, subject to ‎‎Section
7.01, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set
forth and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.


 


 


 


 


 


 


 


 






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Section 8.05.     
Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee,
as provided in ‎‎Section 8.01, of the taking of any action by the Holders of
the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with such action, any Holder
of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such action may, by
filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in ‎‎Section
8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall
be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange
or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made
upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.


 


Article
9

Holders’ Meetings


 


Section 9.01.     
Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions
of this ‎‎Article 9 for any of the following purposes:


 


(a)           
to give any notice to the Company, the Guarantor or to the Trustee or to give any directions to the Trustee permitted under
this Indenture, or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this
Indenture) and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions
of ‎‎Article 6;


 


(b)           
to remove the Trustee and nominate a successor trustee pursuant to the provisions of ‎‎Article 7;


 


(c)           
to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of ‎‎Section
10.02; or


 


 


 


 


 


 


 


 






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(d)           
to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount
of the Notes under any other provision of this Indenture or under applicable law.


 


Section 9.02.     
Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in
‎‎Section 9.01, to be held at such time and at such place as the Trustee shall
determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and the establishment of any record date pursuant to ‎‎Section
8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company. Such notices shall be delivered
not less than 20 nor more than 90 days prior to the date fixed for the meeting.


 


Any meeting of Holders shall be valid without
notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the
meeting by the Holders of all Notes then outstanding, and if the Company or the Guarantor and the Trustee are either present by
duly authorized representatives or have, before or after the meeting, waived notice.


 


Section 9.03.     
Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders
of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting
of Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee
shall not have delivered the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders
may determine the time and the place for such meeting and may call such meeting to take any action authorized in ‎‎Section
9.01, by delivering notice thereof as provided in ‎‎Section 9.02.


 


Section 9.04.     
Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one
or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by
a Holder of one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives
of the Trustee and its counsel and any representatives of the Company or the Guarantor and its counsel.


 


Section 9.05.     
Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.


 


 


 


 


 


 


 


 






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The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided
in ‎‎Section 9.03, in which case the Company or the Holders
calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of at least a majority in aggregate principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.


 


Subject to the provisions of ‎‎Section
8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes
held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect
of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it
as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of ‎‎Section
9.02 or ‎‎Section 9.03 may be adjourned from time to time
by the Holders of at least a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting
a quorum, and the meeting may be held as so adjourned without further notice.


 


Section 9.06.     
Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall
be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount
of the Notes held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice was delivered as provided in ‎‎Section
9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.


 


Any record so signed and verified shall
be conclusive evidence of the matters therein stated.


 


Section 9.07.     
No Delay of Rights by Meeting. Nothing contained in this ‎‎Article
9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.


 


 


 


 


 


 


 






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Article
10

Supplemental Indentures


 


Section 10.01. 
Supplemental Indentures Without Consent of Holders. The Company, when authorized by the resolutions of the Board
of Directors and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:


 


(a)           
to cure any ambiguity, omission, defect or inconsistency;


 


(b)           
to provide for the assumption by a Successor Company or a Successor Guarantor of the obligations of the Company or the Guarantor,
as the case may be, under this Indenture pursuant to ‎‎Article 11;


 


(c)           
to add guarantees with respect to the Notes;


 


(d)           
to secure the Notes;


 


(e)           
to add to the covenants or Events of Default of the Company or the Guarantor for the benefit of the Holders or surrender
any right or power conferred upon the Company or the Guarantor;


 


(f)            
to make any change that does not adversely affect the rights of any Holder;


 


(g)           
in connection with any Merger Event, to provide that the Notes are exchangeable into Reference Property, subject to the
provisions of ‎‎Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required
by ‎‎Section 14.07; or


 


(h)           
to conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Offering
Memorandum.


 


Upon the written request of the Company,
the Trustee is hereby authorized to join with the Company and the Guarantor in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.


 


Any supplemental indenture authorized by
the provisions of this ‎‎Section 10.01 may be executed
by the Company, the Guarantor and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding
any of the provisions of ‎‎Section 10.02.


 


Section 10.02. 
Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in ‎‎Article
8) of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance
with ‎‎Article 8), the Company and the Guarantor, when authorized by the resolutions
of the Board of Directors and the Trustee, at the Company’s expense, may from time to time and at any time enter into an
indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or any supplemental indenture or of modifying in any manner the rights of the Holders;
provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental
indenture shall:


 


 


 


 


 


 


 


 






    	 	51	 



     


    

 


 


 


(a)           
reduce the amount of Notes whose Holders must consent to an amendment;


 


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


 


(c)           
reduce the principal of or extend the Maturity Date of any Note;


 


(d)           
make any change that adversely affects the exchange rights of any Notes;


 


(e)           
reduce the Redemption Price or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse
to the Holders the Company’s or the Guarantor’s obligation to make such payments, whether through an amendment or waiver
of provisions in the covenants, definitions or otherwise;


 


(f)            
make any Note payable in a currency, or at a place of payment, other than that stated in the Note;


 


(g)           
change the ranking of the Notes or the Guarantee;


 


(h)           
make any change in this ‎‎Article 10 that requires each Holder’s consent or in the waiver provisions
in ‎‎Section 6.02 or ‎Section 6.09; or


 


(i)            
other than in accordance with the provisions of this Indenture, eliminate the Guarantee of the Notes or release the Guarantor
under its obligations under the Guarantee.


 


Upon the written request of the Company,
and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to ‎‎Section
10.05, the Trustee shall join with the Company and the Guarantor in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such supplemental indenture.


 


Holders do not need under this ‎‎Section
10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the
substance thereof. After any such supplemental indenture becomes effective, the Company shall deliver to the Holders a notice briefly
describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in the notice,
will not impair or affect the validity of the supplemental indenture.


 


 


 


 


 


 


 


 






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Section 10.03. 
Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of
this ‎‎Article 10, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company, the Guarantor and the Holders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.


 


Section 10.04. 
Notation on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to
the provisions of this ‎‎Article 10 may, at the Company’s expense, bear
a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company’s Board of
Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense,
be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee
pursuant to ‎‎Section 17.10) and delivered in exchange for the Notes then outstanding,
upon surrender of such Notes then outstanding.


 


Section 10.05. 
Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In addition to the documents required by
‎‎Section 17.05, the Trustee shall receive an Officer’s Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements
of this ‎‎Article 10 and is permitted or authorized by this Indenture.


 


Article
11

Consolidation, Merger, Sale, Conveyance and Lease


 


Section 11.01. 
Guarantor May Consolidate, Etc. on Certain Terms.


 


(a)           
Subject to the provisions of ‎‎Section 11.01(b), the Guarantor shall not consolidate with, merge with or
into, or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person, unless:


 


(i)           
the resulting, surviving or transferee Person (the “Successor Guarantor”), if not the Guarantor, shall
be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia,
and the Successor Guarantor (if not the Guarantor) shall expressly assume, by supplemental indenture all of the obligations of
the Guarantor under the Notes, the Guarantee and this Indenture; and


 


(ii)           
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing
under this Indenture; and


 


 


 


 


 


 


 


 






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(iii)           
the Guarantor shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, sale, conveyance, transfer or lease and such supplemental indenture, if any, and instrument of assumption,
if any, comply with the Indenture.


 


For purposes of this ‎‎Section
11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries
of the Guarantor to another Person, which properties and assets, if held by the Guarantor instead of such Subsidiaries, would constitute
all or substantially all of the properties and assets of the Guarantor on a consolidated basis, shall be deemed to be the sale,
conveyance, transfer or lease of all or substantially all of the properties and assets of the Guarantor to another Person.


 


(b)           
Upon any such consolidation, merger, combination, sale, lease or other transfer or disposition and upon the assumption by
the Successor Guarantor, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery
and/or payment, as the case may be, of any consideration due upon exchange of the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture, the Notes and the Guarantee to be performed by the Guarantor, such Successor
Guarantor (if not the Guarantor) shall succeed to, and may exercise every right and power of and be substituted for, the Guarantor,
with the same effect as if it had been named herein as the party of the first part, and the Guarantor shall be discharged from
its obligations under the Notes, this Indenture and the Guarantee.


 


Section 11.02. 
Company May Consolidate, Etc. on Certain Terms.


 


(a)           
Subject to the provisions of ‎Section 11.02(b), the Company shall not consolidate with, merge with or into, or
sell, convey, transfer or lease all or substantially all of its properties and assets to another Person, unless:


 


(i)           
the resulting, surviving or transferee Person (the “Successor Company”), if not the Company, shall be
a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia,
and the Successor Company (if not the Company) shall expressly assume, by supplemental indenture all of the obligations of the
Company under the Notes and this Indenture; and


 


(ii)           
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing
under this Indenture; and


 


(iii)           
the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, transfer or lease and such supplemental indenture, if any, and instrument of assumption,
if any, comply with the Indenture.


 


 


 


 


 


 


 


 






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(b)           
In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor
Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment,
as the case may be, of any consideration due upon exchange of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, such Successor Company (if not the Company) shall succeed to and,
except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be substituted for
the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor Company thereupon
may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor
Company instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed
and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Notes had been issued at the date of the execution hereof.


 


Section 11.03. 
Opinion of Counsel to Be Given to Trustee. No such consolidation, merger, sale, conveyance, transfer or lease shall
be effective unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture, complies with the provisions of this ‎Article
11.


 


Article
12

Immunity of Incorporators, Stockholders, Officers and Directors


 


Section 12.01. 
Indenture, Notes and Guarantee Solely Corporate Obligations. No recourse for the payment of the principal of or accrued
and unpaid interest on any Note or the Guarantee, nor for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company or the Guarantor in this Indenture or in any supplemental indenture
or in any Note or the Guarantee, nor because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, Officer or director or Subsidiary (other than the Company) or the Trustee, as such,
past, present or future, of the Company or the Guarantor or of any of their respective successor corporations or entities, either
directly or through the Company, the Guarantor or any of their respective successor corporations or entities, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Notes and the Guarantee.


 


 


 


 


 


 


 






    	 	55	 



     


    

 


 


 


Article
13

Guarantee of Notes


 


Section 13.01. 
Guarantee.


 


(a)           
Subject to this ‎‎Article 13, the Guarantor fully and unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes held thereby and the obligations of the Company hereunder and thereunder, that: (i) the principal
of and interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at the Maturity
Date, by acceleration, upon redemption, upon repurchase or otherwise, and interest on the overdue principal of and (to the extent
permitted by law) interest on the Notes, and the Settlement Amounts upon exchange will be promptly paid and/or delivered in full
when due upon exchange, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at the Maturity
Date, by acceleration, upon redemption, upon repurchase or otherwise. Failing payment when so due of any amount so guaranteed for
whatever reason, the Guarantor will be obligated to pay the same immediately. An Event of Default with respect to the Notes under
this Indenture shall constitute an event of default under the Guarantee, and shall entitle the Holders to accelerate the obligations
of the Guarantor hereunder in the same manner and to the same extent as the obligations of the Company.


 


(b)           
The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same
or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or
defense of the Guarantor. The Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and covenants that the Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to ‎‎Section 13.03.


 


(c)           
The Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses)
incurred by the Trustee or any Holder in enforcing any rights under this ‎‎Section 13.01.


 


 


 


 


 


 


 


 






    	 	56	 



     


    

 


 


 


(d)           
If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor, or any Custodian,
Trustee or other similar official acting in relation to either the Company or the Guarantor, any amount paid by the Company or
the Guarantor to the Trustee or such Holder, the Guarantee to the extent theretofore discharged, shall be reinstated in full force
and effect.


 


(e)           
The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (a) the maturity of the obligations guaranteed hereby may be accelerated as provided in ‎‎Article 6 of this Indenture
for the purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed thereby, and (b) in the event of any declaration of acceleration of such obligations as provided
in ‎‎Article 6 of this Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable
by the Guarantor for the purpose of the Guarantee.


 


(f)            
The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against
the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors
or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance
of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Notes or the Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise,
all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced,
restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.


 


(g)           
In case any provision of the Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.


 


(h)           
Each payment to be made by the Guarantor in respect of the Guarantee shall be made without set-off, counterclaim, reduction
or diminution of any kind or nature.


 


(i)             
For the avoidance of doubt, the Guarantee with respect to a Note is not exchangeable and shall automatically terminate when
such Note is exchanged in accordance with this Indenture.


 


Section 13.02. 
Execution and Delivery. The Guarantee shall be evidenced by the execution and delivery of this Indenture or a supplement
to this Indenture and no notation of the Guarantee need be endorsed on any Note. The Guarantor hereby agrees that the Guarantee
set forth in ‎Section 13.01 shall remain in full force and effect notwithstanding
the absence of the endorsement of any notation of the Guarantee on the Notes. If an Officer whose signature is on this Indenture
no longer holds that office at the time the Trustee authenticates the Note, the Guarantee shall be valid nevertheless. The delivery
of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth
in this Indenture on behalf of the Guarantor.


 


 


 


 


 


 


 






    	 	57	 



     


    

 


 


 


Section 13.03. 
 Release of the Guarantee. The Guarantee shall be automatically and unconditionally released and discharged under
this Indenture upon the discharge of the Company’s obligations under this Indenture in accordance with the terms of this
Indenture. At the request of the Company and upon delivery of an Officer’s Certificate and Opinion of Counsel, the Trustee
shall, at the expense of the Company, execute any documents reasonably requested by the Company in order to evidence the release
of the Guarantor from its obligations under the Guarantee.


 


Section 13.04. 
 Limitation on Guarantor Liability. The Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that the Guarantee not constitute a fraudulent conveyance or a fraudulent transfer for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to the Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantor
hereby irrevocably agree that the obligations of the Guarantor under the Guarantee will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of the Guarantor and result in the obligations of the Guarantor
under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law and not otherwise
being void or voidable under any similar laws affecting the rights of creditors generally.


 


Section 13.05. 
 Subrogation. The Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts
paid by the Guarantor pursuant to the provisions of ‎‎Section 13.01; provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments
arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture
or the Notes shall have been paid in full.


 


Section 13.06. 
 Benefits Acknowledged. The Guarantor acknowledges that it will receive benefits from the financing arrangements
contemplated by this Indenture and that the guarantee and waivers made by it pursuant to the Guarantee are knowingly made in contemplation
of such benefits.


 


Section 13.07. 
 “Trustee” to Include Paying Agent. In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this ‎‎Article
13 shall in each case (unless the context shall otherwise require) be construed as extending to, and including, such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying Agent were named in this ‎Article
13 in place of the Trustee.


 


Article
14

Exchange of Notes


 


Section 14.01. 
Exchange Privilege.


 


 


 


 


 


 


 


 






    	 	58	 



     


    

 


 


 


(a)           
Subject to and upon compliance with the provisions of this ‎‎Article 14, each Holder of a Note shall have
the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is $1,000 principal amount
or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in ‎‎Section
14.01(b), at any time prior to the close of business on the Business Day immediately preceding September 15, 2025 under the circumstances
and during the periods set forth in ‎‎Section 14.01(b), and (ii) on or after September 15, 2025 and prior to the
close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial exchange
rate of 47.1403 shares of Common Stock (subject to adjustment as provided in this ‎‎Article 14, the “Exchange
Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of ‎‎Section
14.02, the “Exchange Obligation”).


 


(b)           
(i) Prior to the close of business on the Business Day immediately preceding September 15, 2025, a Holder may surrender
all or any portion of its Notes for exchange at any time during the five Business Day period immediately after any five consecutive
Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes,
as determined following a request by a Holder of Notes in accordance with this subsection ‎Section 14.01(b)(i), for
each Trading Day of the Measurement Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock
on each such Trading Day and the Exchange Rate on each such Trading Day. The Trading Price shall be determined by the Bid Solicitation
Agent pursuant to this subsection ‎(b)‎(i) and the definition of Trading Price set forth in this Indenture.
The Company shall provide written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally
recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact
information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading
Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no obligation
to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine
the Trading Price per $1,000 principal amount of Notes) unless a Holder provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported
Sale Price of the Common Stock on such Trading Day and the Exchange Rate on such Trading Day, at which time the Company shall instruct
the Bid Solicitation Agent (if other than the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the
Company shall determine, the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the
Last Reported Sale Price of the Common Stock and the Exchange Rate. If (x) the Company is not acting as Bid Solicitation Agent,
and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes
when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and
the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the Company
fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the Trading Price
per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the
Common Stock and the Exchange Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been
met, the Company shall so notify the Holders, the Trustee and the Exchange Agent (if other than the Trustee). If, at any time after
the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than
or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Exchange Rate for such date, the Company
shall so notify the Holders of the Notes, the Trustee and the Exchange Agent (if other than the Trustee).


 


 


 


 


 


 


 


 






    	 	59	 



     


    

 


 


 









(ii)           
If, prior to the close of business on the Business Day immediately preceding September 15, 2025, the Guarantor elects to:


 


(A)           
issue to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for a period
of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common
Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive
Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or


 


(B)           
distribute to all or substantially all holders of the Common Stock the Guarantor’s assets, securities or rights to
purchase securities of the Guarantor, which distribution has a per share value, as reasonably determined by the Guarantor’s
Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of
announcement for such distribution,


 


then, in either case, the Company shall notify all Holders of
the Notes, the Trustee and the Exchange Agent (if other than the Trustee) at least 45 Scheduled Trading Days prior to the Ex-Dividend
Date for such issuance or distribution. Once the Company has given such notice, a Holder may surrender all or any portion of its
Notes for exchange at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend
Date for such issuance or distribution and (2) the Guarantor’s announcement that such issuance or distribution will not take
place, in each case, even if the Notes are not otherwise exchangeable at such time.


 


(iii)           
If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close
of business on the Business Day immediately preceding September 15, 2025, regardless of whether a Holder has the right to require
the Company to repurchase the Notes pursuant to ‎‎Section 15.01, or if the Company is a party to a consolidation,
merger, binding share exchange, or transfer or lease of all or substantially all of its assets that occurs prior to the close of
business on the Business Day immediately preceding September 15, 2025, in each case, pursuant to which the Common Stock would be
converted into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for exchange at
any time from, and including, the effective date of such transaction to, and including, the 35th Trading Day after such
effective date or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date.
The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) no later than the effective date
of such transaction. If the Company does not provide such notice on or prior to the effective date of such transaction, then the
last day on which Notes may be surrendered for exchange pursuant to this ‎Section 14.01(b)(iii) shall be extended
by the number of Business Days from, and including, the effective date of such transaction to, but excluding, the date the Company
provides such notice.


 


 


 


 


 


 


 


 






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(iv)           
Prior to the close of business on the Business Day immediately preceding September 15, 2025, a Holder may surrender all
or any portion of its Notes for exchange at any time during any fiscal quarter commencing after the fiscal quarter ending on July
31, 2021 (and only during such fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days
(whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of
the immediately preceding fiscal quarter is greater than or equal to 130% of the Exchange Price on each applicable Trading Day.
The Company shall determine at the beginning of each fiscal quarter commencing after July 31, 2021 whether the Notes may be surrendered
for exchange in accordance with this clause ‎(iv) and shall notify the Holders, the Trustee and the Exchange
Agent (if other than the Trustee) if the Notes become exchangeable in accordance with this clause (iv).


 


(v)           
If the Company calls any or all of the Notes for redemption pursuant to ‎‎Article 16, then a Holder
may surrender all or any portion of its Notes for exchange at any time prior to the close of business on the second Scheduled Trading
Day prior to the Redemption Date, even if the Notes are not otherwise exchangeable at such time. After that time, the right to
exchange shall expire, unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may
exchange its Notes until the Redemption Price has been paid or duly provided for.


 


Section 14.02. 
Exchange Procedure; Settlement Upon Exchange.


 


(a)           
Subject to this ‎‎‎Section 14.02, ‎‎Section 14.03(b) and ‎‎Section 14.07(a),
upon exchange of any Note, the Company shall pay or deliver, as the case may be, to the exchanging Holder, in respect of each $1,000
principal amount of Notes being exchanged, cash (“Cash Settlement”), shares of Common Stock, together with cash,
if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j) of this
‎‎Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock,
together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection ‎(j)
of this ‎‎Section 14.02 (“Combination Settlement”), at its election, as set forth in this ‎‎‎Section
14.02.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






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(i)           
All exchanges for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice with
respect to the Notes and prior to the related Redemption Date, and all exchanges for which the relevant Exchange Date occurs on
or after September 15, 2025 shall be settled using the same Settlement Method.


 


(ii)           
Except for any exchange for which the relevant Exchange Date occurs after the Company’s issuance of a Redemption Notice
with respect to the Notes but prior to the related Redemption Date, and any exchanges for which the relevant Exchange Date occurs
on or after September 15, 2025, the Company shall use the same Settlement Method for all exchanges with the same Exchange Date,
but the Company shall not have any obligation to use the same Settlement Method with respect to exchanges with different Exchange
Dates.


 


(iii)           
If, in respect of any Exchange Date (or one of the periods described in the third immediately succeeding set of parentheses,
as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement
Method in respect of such Exchange Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such
Settlement Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant
Exchange Date (or, in the case of any exchanges for which the relevant Exchange Date occurs (x) after the date of issuance of a
Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after
September 15, 2021, no later than the close of business on the Business Day immediately preceding September 15, 2025). If the Company
does not elect a Settlement Method prior to the deadline set forth in the immediately preceding sentence, the Company shall no
longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination
Settlement in respect of its Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be
equal to $1,000. For the avoidance of doubt, the Company’s failure to elect a Settlement Method prior to the deadline shall
not constitute a Default or Event of Default. Such Settlement Notice shall specify the relevant Settlement Method and in the case
of an election of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000
principal amount of Notes. If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Exchange
Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the
Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.


 


(iv)           
The Company may, prior to September 15, 2025, at its option, irrevocably fix any Settlement Method that it is then permitted
to elect hereunder for all exchanges for which the relevant Exchange Date occurs subsequent to such notice, including Combination
Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, or with an ability to continue to set
a Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such written notice.
Such election must be made by delivering written notice of such election to the Holders, the Trustee and the Exchange Agent, and
issuing a press release containing the relevant information and making such information available on the Guarantor’s website
or through such other public medium as it may use at that time. Following such irrevocable election, the Company will not have
the right to change the Settlement Method.


 


 


 


 


 


 


 


 






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(v)           
The cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any exchange of Notes (the
“Settlement Amount”) shall be computed as follows:


 


(A)           
if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Company
shall deliver to the exchanging Holder in respect of each $1,000 principal amount of Notes being exchanged a number of shares of
Common Stock equal to the Exchange Rate in effect on the Exchange Date;


 


(B)           
if the Company elects to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Company shall
pay to the exchanging Holder in respect of each $1,000 principal amount of Notes being exchanged cash in an amount equal to the
sum of the Daily Exchange Values for each of the 40 consecutive Trading Days during the related Observation Period; and


 


(C)           
if the Company elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination
Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being exchanged,
a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related
Observation Period.


 


(vi)           
The Daily Settlement Amounts (if applicable) and the Daily Exchange Values (if applicable) shall be determined by the Company
promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or
the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common
Stock, the Company shall notify the Trustee and the Exchange Agent (if other than the Trustee) of the Daily Settlement Amounts
or the Daily Exchange Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common
Stock. The Trustee and the Exchange Agent (if other than the Trustee) shall have no responsibility for any such determination.


 


(b)           
Subject to ‎‎Section 14.02(e), before any Holder of a Note shall be entitled to exchange a Note as set forth
above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time
and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled as
set forth in ‎Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable
notice to the Exchange Agent as set forth in the Form of Notice of Exchange (or a facsimile thereof) (a “Notice of Exchange”)
at the office of the Exchange Agent and state in writing therein the principal amount of Notes to be exchanged and the name or
names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered
upon settlement of the Exchange Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank
(and accompanied by appropriate endorsement and transfer documents), at the office of the Exchange Agent, (3) if required, furnish
appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment
Date to which such Holder is not entitled as set forth in ‎ ‎Section 14.02(h). The Trustee (and if different, the
Exchange Agent) shall notify the Company of any exchange pursuant to this ‎‎Article 14 on the Exchange Date for
such exchange. No Notice of Exchange with respect to any Notes may be surrendered by a Holder thereof if such Holder has also delivered
a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change
Repurchase Notice in accordance with ‎Section 15.02.


 


 


 


 


 


 


 






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If more than one Note shall be surrendered
for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes shall be computed on the basis
of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.


 


(c)           
A Note shall be deemed to have been exchanged immediately prior to the close of business on the date (the “Exchange
Date”) that the Holder has complied with the requirements set forth in subsection ‎‎(b) above. Except
as set forth in ‎Section 14.03(b) and ‎‎Section 14.07(a), the Company shall pay or deliver, as the case
may be, the consideration due in respect of the Exchange Obligation on the second Business Day immediately following the relevant
Exchange Date, if the Company elects Physical Settlement (provided that, with respect to any Exchange Date following the Regular
Record Date immediately preceding the Maturity Date where Physical Settlement applies to the related exchange, the Company will
settle any such exchange on the Maturity Date), or on the second Business Day immediately following the last Trading Day of the
Observation Period, in the case of any other Settlement Method. If any shares of Common Stock are due to a exchanging Holder, the
Company shall issue or cause to be issued, and deliver (if applicable) to the exchanging Holder, or such Holder’s nominee
or nominees, the full number of shares of Common Stock to which such Holder shall be entitled, in book-entry format through the
Depositary, in satisfaction of the Company’s Exchange Obligation.


 


(d)           
In case any Note shall be surrendered for partial exchange, the Company shall execute and the Trustee shall authenticate
and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unexchanged portion of the surrendered Note, without payment of any service charge
by the exchanging Holder but, if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary,
stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in connection therewith
as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of
the old Notes surrendered for such exchange.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	64	 



     


    

 


 


 


(e)           
If a Holder submits a Note for exchange, the Company shall pay any documentary, stamp or similar issue or transfer tax due
on the issue of any shares of Common Stock upon exchange, unless the tax is due because the Holder requests such shares to be issued
in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Exchange Agent may refuse to deliver
the certificates representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee
receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.


 


(f)            
Except as provided in ‎‎Section 14.04, no adjustment shall be made for dividends on any shares of Common
Stock issued upon the exchange of any Note as provided in this ‎Article 14.


 


(g)           
Upon the exchange of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall
make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the
Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the Trustee.


 


(h)           
Upon exchange, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set
forth below. The Company’s settlement of the full Exchange Obligation shall be deemed to satisfy in full its obligation to
pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date.
As a result, accrued and unpaid interest, if any, to, but not including, the relevant Exchange Date shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited. Upon an exchange of Notes into a combination of cash and shares of Common
Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange. Notwithstanding the
foregoing, if Notes are exchanged after the close of business on a Regular Record Date, but prior to the open of business on the
Interest Payment Date corresponding to such Regular Record Date, Holders of such Notes as of the close of business on such Regular
Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding
the exchange. Notes surrendered for exchange during the period from the close of business on any Regular Record Date to the open
of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable
on the Notes so exchanged; provided that no such payment shall be required (1) for exchanges following the Regular Record
Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record
Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if
the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the second
Scheduled Trading Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts,
if any Defaulted Amounts exists at the time of exchange with respect to such Note. Therefore, for the avoidance of doubt, all Holders
of record on the Regular Record Date immediately preceding the Redemption Date or the Maturity Date shall receive the full interest
payment due on the Redemption Date or the Maturity Date, as applicable, regardless of whether their Notes have been exchanged following
such Regular Record Date.


 


 


 


 


 


 


 






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(i)            
The Person in whose name the shares of Common Stock shall be issuable upon exchange shall be treated as a stockholder of
record as of the close of business on the relevant Exchange Date (if the Company elects to satisfy the related Exchange Obligation
by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related
Exchange Obligation by Combination Settlement), as the case may be. Upon a exchange of Notes, such Person shall no longer be a
Holder of such Notes surrendered for exchange.


 


(j)            
Neither the Company nor Guarantor shall issue any fractional share of Common Stock upon exchange of the Notes and shall
instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon exchange based on the Daily VWAP for
the relevant Exchange Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant
Observation Period (in the case of Combination Settlement). For each Note surrendered for exchange, if the Company has elected
Combination Settlement, the full number of shares that shall be issued upon exchange thereof shall be computed on the basis of
the aggregate Daily Settlement Amounts for the relevant Observation Period and any fractional shares remaining after such computation
shall be paid in cash.


 


(k)           
Notwithstanding the provisions described above in this ‎Section 14.02, in satisfaction of the Exchange Obligation,
the Company may, at its election (a “Financial Institution Surrender Election”), direct the Exchange Agent to
surrender, on or prior to the Trading Day following the Exchange Date, such Notes to one or more financial institutions designated
by the Company (a “Financial Institution Surrender”) in lieu of exchange. In order to accept any Notes surrendered
for a Financial Institution Surrender, the designated financial institution(s) must agree to timely deliver, in exchange for such
Notes, the cash, shares of Common Stock or combination of cash and shares of Common Stock, at the Company’s election, equal
to the consideration due upon exchange (the “Exchange Consideration”) pursuant to this ‎Section 14.02,
as is designated to the Exchange Agent in writing by the Company. If the Company makes a Financial Institution Surrender Election,
by the close of business on the Trading Day following the relevant surrender date, the Company shall (i) notify, in the manner
provided in this ‎Section 14.02, the Holder surrendering its Notes for exchange, the Exchange Agent (if other than the
Trustee) and the Trustee, that the Company has made the Financial Institution Surrender Election and (ii) notify the designated
financial institution(s) of the relevant deadline for delivery of the Exchange Consideration. If the designated financial institution(s)
accepts any such Notes, it or they shall deliver the Exchange Consideration in accordance with this ‎Section 14.02.
Any Notes exchanged by the designated financial institution(s) shall remain outstanding, subject to the procedures of the Depositary.
If the designated financial institution(s) agrees to accept any Notes for surrender but does not timely deliver the related Exchange
Consideration, or if such designated financial institution(s) does not accept the Notes for a Financial Institution Surrender,
the Company shall deliver the relevant Exchange Consideration as if the Company had not made a Financial Institution Surrender
Election. The Company’s designation of a financial institution(s) to which the Notes may be submitted for a Financial Institution
Surrender does not require such institution to accept any Notes. The Company may, but will not be obligated to, enter into a separate
agreement with any designated financial institution that would compensate it for any such transaction.


 


 


 


 


 


 


 


 






    	 	66	 



     


    

 


 


 


Section 14.03. 
Increased Exchange Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or
Redemption Notice. (a) If (x) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (y)
the Company gives a Redemption Notice with respect to any or all of the Notes in accordance with ‎Section
16.02 and, in each case, a Holder elects to exchange its Notes in connection with such Make-Whole Fundamental Change or Redemption
Notice, as the case may be, the Company shall, under the circumstances described below, increase the Exchange Rate for the Notes
so surrendered for exchange by a number of additional shares of Common Stock (the “Additional Shares”), as described
below. An exchange of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental
Change if the relevant Notice of Exchange is received by the Exchange Agent from, and including, the Effective Date of the Make-Whole
Fundamental Change up to, and including, the close of business on the second Scheduled Trading Day immediately prior to the related
Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change
but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such
Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”). An exchange of Notes
shall be deemed for these purposes to be “in connection with” a Redemption Notice if the relevant Notice of Exchange
is received by the Exchange Agent from, and including, the date of the Redemption Notice until the close of business on the second
Scheduled Trading Day immediately preceding the Redemption Date.


 


(b)           
Upon surrender of Notes for exchange in connection with a Make-Whole Fundamental Change pursuant to ‎‎Section
14.01(b)(iii) or Redemption Notice pursuant to ‎‎Section 14.01(b)(v), the Company shall, at its option, satisfy
the related Exchange Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with ‎Section
14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b)
of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely
of cash, for any exchange of Notes following the Effective Date of such Make-Whole Fundamental Change, the Exchange Obligation
shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000
principal amount of exchanged Notes equal to the Exchange Rate (including any adjustment for Additional Shares), multiplied
by such Stock Price. In such event, the Exchange Obligation shall be paid to Holders in cash on the second Business Day following
the Exchange Date. The Company shall notify the Holders of Notes of the Effective Date of any Make-Whole Fundamental Change, issue
a press release announcing such Effective Date and make such information available on the Guarantor’s website or through
such other public medium as Guarantor may use at that time, no later than five Business Days after such Effective Date.


 


 


 


 


 


 


 


 






    	 	67	 



     


    

 


 


 


(c)           
The number of Additional Shares, if any, by which the Exchange Rate shall be increased shall be determined by reference
to the table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective or the date of the
Redemption Notice, as the case may be (in each case, the “Effective Date”), and the price (the “Stock
Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or with respect
to the Optional Redemption, as the case may be. If the holders of the Common Stock receive in exchange for their Common Stock only
cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall
be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common
Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the
Make-Whole Fundamental Change or the date of the Redemption Notice, as the case may be. The Company’s Board of Directors
shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Exchange
Rate that becomes effective, or any event requiring an adjustment to the Exchange Rate where the Ex-Dividend Date, Effective Date
(as such term is used in ‎‎Section 14.04) or expiration date of the event occurs during such five consecutive Trading
Day period.


 


(d)           
The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Exchange
Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to
such adjustment, multiplied by a fraction, the numerator of which is the Exchange Rate immediately prior to such adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Exchange Rate as so adjusted. The number of Additional
Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Exchange Rate as set forth
in ‎Section 14.04.


 


(e)           
The following table sets forth the number of Additional Shares of Common Stock by which the Exchange Rate shall be increased
per $1,000 principal amount of Notes pursuant to this ‎‎Section 14.03 for each Stock Price and Effective Date set
forth below:


 


	Effective Date	

                                                                                 

                                                                                Stock
Price

                                                                                 

	$16.01	$18.50	$21.21	$25.00	$27.58	$45.00	$62.00	$79.00	$96.00	$113.00	$130.00	$150.00
	3/12/2021	15.3206	11.4697	8.6035	5.9860	4.7803	1.4387	0.6058	0.2878	0.1379	0.0611	0.0202	0.0000
	3/15/2022	15.3206	11.0816	8.0764	5.4052	4.2110	1.1238	0.4479	0.2053	0.0935	0.0371	0.0088	0.0000
	3/15/2023	15.3206	10.5124	7.3498	4.6440	3.4862	0.7880	0.2990	0.1339	0.0577	0.0191	0.0009	0.0000
	3/15/2024	15.3206	9.7578	6.3720	3.6496	2.5718	0.4602	0.1747	0.0790	0.0322	0.0080	0.0000	0.0000
	3/15/2025	15.3206	8.6546	4.8769	2.2292	1.3626	0.1838	0.0795	0.0370	0.0133	0.0012	0.0000	0.0000
	3/15/2026	15.3206	6.9137	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000


 


 


 


 


 


 


 


 






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The exact Stock Price and Effective Date
may not be set forth in the table above, in which case:


 


(i)           
if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in
the table, the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day
year;


 


(ii)           
if the Stock Price is greater than $150.00 per share (subject to adjustment in the same manner as the Stock Prices set forth
in the column headings of the table above pursuant to subsection ‎(c) above), no Additional Shares shall be added
to the Exchange Rate; and


 


(iii)           
if the Stock Price is less than $16.01 per share (subject to adjustment in the same manner as the Stock Prices set forth
in the column headings of the table above pursuant to subsection ‎(c) above), no Additional Shares shall be added
to the Exchange Rate.


 


Notwithstanding the foregoing, in no event shall the Exchange
Rate per $1,000 principal amount of Notes exceed 62.4609 shares of Common Stock, subject to adjustment in the same manner as the
Exchange Rate pursuant to ‎‎Section 14.04.


 


(f)            
Nothing in this ‎‎Section 14.03 shall prevent an adjustment to the Exchange Rate pursuant to ‎‎Section
14.04 in respect of a Make-Whole Fundamental Change.


 


Section 14.04. 
Adjustment of Exchange Rate. The Exchange Rate shall be adjusted from time to time by the Company if any of the following
events occurs, except that the Company shall not make any adjustments to the Exchange Rate if Holders of the Notes participate
(other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon
the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described
in this ‎‎Section 14.04, without having to exchange their Notes, as if they
held a number of shares of Common Stock equal to the Exchange Rate, multiplied by the principal amount (expressed in thousands)
of Notes held by such Holder.


 


(a)           
If the Guarantor exclusively issues shares of Common Stock as a dividend or distribution on all or substantially all of
the shares of the Common Stock, or if the Guarantor effects a share split or share combination, the Exchange Rate shall be adjusted
based on the following formula:


 


 





 


where,


 


 


 


 


 


 


 






    	 	69	 



     


    

 


 


 





	CR0	=	the Exchange Rate in effect
immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the
open of business on the Effective Date of such share split or share combination, as applicable;
	 	 	 
	CR'	=	the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
	 	 	 
	OS0	=	the number
of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before
giving effect to any such dividend, distribution, split or combination); and
	 	 	 
	OS'	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share
split or share combination.



 


Any adjustment made under this ‎Section
14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution,
or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any
dividend or distribution of the type described in this ‎ ‎Section
14.04(a) is declared but not so paid or made, the Exchange Rate shall be immediately readjusted, effective as of the date the Guarantor’s
Board of Directors determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such
dividend or distribution had not been declared.


 


(b)           
If the Guarantor issues to all or substantially all holders of the Common Stock any rights, options or warrants entitling
them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase
shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock
for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement
of such issuance, the Exchange Rate shall be increased based on the following formula:


 





 


where,


 





	CR0	=	the Exchange Rate in effect
immediately prior to the open of business on the Ex-Dividend Date for such issuance;
	 	 	 
	CR'	=	the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 	 	 
	OS0	=	the number of shares of
Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;






 


 


 


 


 


 






    	 	70	 



     


    

 


 


 


 


	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 aggregate price payable to exercise such rights, options or warrants,
divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.



 



Any increase made under this ‎‎Section
14.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately
after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered
after the expiration of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would
then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Exchange
Rate shall be decreased to the Exchange Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.


 


For purposes of this ‎‎‎Section
14.04(b) and for the purpose of ‎Section 14.01(b)(ii)(A), in
determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock
at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Guarantor for
such rights, options or warrants and any amount payable on exercise or exchange thereof, the value of such consideration, if other
than cash, to be determined by the Guarantor’s Board of Directors.


 


(c)           
If the Guarantor distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the
Guarantor or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders
of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to ‎‎Section
14.04(a) or ‎‎Section 14.04(b)), (ii) dividends or distributions paid exclusively in cash as to which the provisions
set forth in ‎Section 14.04(d) shall apply, and (iii) Spin-Offs as to which the provisions set forth below in this ‎‎Section
14.04(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options
or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Exchange Rate
shall be increased based on the following formula:


 





 


where,


 


 


 


 


 


 


 


 






    	 	71	 



     


    

 


 


 





	CR0	=	the Exchange Rate in effect
immediately prior to the open of business on the Ex-Dividend Date for such distribution;
	 	 	 
	CR'	=	the Exchange Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 	 	 
	SP0	=	the average of the Last
Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the Ex-Dividend Date for such distribution; and
	 	 	 
	FMV	=	the fair market value (as determined by the Guarantor’s Board of Directors) of the Distributed Property with respect
to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.



 


Any increase made under the portion of this ‎‎Section
14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If
such distribution is not so paid or made, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect
if such distribution had not been declared. 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 Note shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common
Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder
owned a number of shares of Common Stock equal to the Exchange Rate in effect on the Ex-Dividend Date for the distribution. If
the Guarantor’s Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of
this ‎Section 14.04(c) by reference to the actual or when-issued
trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing
the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the Ex-Dividend Date for such distribution.


 


With respect to an adjustment pursuant to
this ‎‎Section 14.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest,
of or relating to a Subsidiary or other business unit of the Guarantor, that are, or, when issued, will be, listed or admitted
for trading on a U.S. national securities exchange (a “Spin-Off”), the Exchange Rate shall be increased based
on the following formula:


 





 


where,


 





	CR0	=	the Exchange Rate in effect
immediately prior to the end of the Valuation Period;



 


 


 


 


 


 


 






    	 	72	 



     


    

 


 


 


	CR'	=	the Exchange Rate in effect immediately after the end of the Valuation Period;
	 	 	 
	FMV0	=	the average of the Last
Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to
one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in ‎Section
1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive
Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
	 	 	 
	MP0	=	the average of the Last
Reported Sale Prices of the Common Stock over the Valuation Period.



 


The increase to the Exchange Rate under
the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that
(x) in respect of any exchange of Notes for which Physical Settlement is applicable, if the relevant Exchange Date occurs during
the Valuation Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser
number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the Exchange
Date in determining the Exchange Rate and (y) in respect of any exchange of Notes for which Cash Settlement or Combination Settlement
is applicable, for any Trading Day that falls within the relevant Observation Period for such exchange and within the Valuation
Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading
Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, such Trading Day in determining
the Exchange Rate as of such Trading Day.


 


For purposes of this ‎‎Section
14.04(c) (and subject in all respect to ‎Section 14.11), rights,
options or warrants distributed by the Guarantor to all holders of the Common Stock entitling them to subscribe for or purchase
shares of the Guarantor’s Capital Stock, including Common Stock (either initially or under certain circumstances), which
rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are
deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of
future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this ‎‎‎Section
14.04(c) (and no adjustment to the Exchange Rate under this ‎‎Section
14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall
be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under
this ‎‎Section 14.04(c). If any such right, option or warrant,
including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution
and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options
or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition,
in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of
the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Exchange Rate under this ‎‎‎Section
14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without
exercise by any holders thereof, upon such final redemption or purchase (x) the Exchange Rate shall be readjusted as if such rights,
options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution,
deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such
holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or
purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by
any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued.


 


 


 


 


 


 


 


 






    	 	73	 



     


    

 


 


 


For purposes of ‎Section
14.04(a), ‎‎Section 14.04(b) and this ‎Section
14.04(c), if any dividend or distribution to which this ‎‎‎‎Section
14.04(c) is applicable also includes one or both of:


 


(A)       a
dividend or distribution of shares of Common Stock to which ‎‎Section
14.04(a) is applicable (the “Clause A Distribution”); or


 


(B)       a
dividend or distribution of rights, options or warrants to which ‎‎‎Section
14.04(b) is applicable (the “Clause B Distribution”),


 


then, in either case, (1) such dividend or distribution, other
than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this ‎‎Section
14.04(c) is applicable (the “Clause C Distribution”) and any Exchange Rate adjustment required by this ‎‎‎Section
14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution
shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by ‎Section
14.04(a) and ‎‎Section 14.04(b) with respect thereto shall
then be made, except that, if determined by the Guarantor (I) the “Ex-Dividend Date” of the Clause A Distribution and
the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common
Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior
to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of ‎Section
14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of
‎‎‎Section 14.04(b).


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	74	 



     


    

 


 


 


(d)           
If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Exchange Rate
shall be adjusted based on the following formula:


 








 


where,


 


 


 


 





	CR0	=	the Exchange Rate in effect
immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	CR'	=	the Exchange Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	SP0	=	the Last Reported Sale
Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
	 	 	 
	C	=	the amount in cash per share the Guarantor distributes to all or substantially all holders of the Common Stock.


 


Any increase pursuant to this ‎
‎Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend
or distribution. If such dividend or distribution is not so paid, the Exchange Rate shall be decreased, effective as of the date
the Guarantor’s Board of Directors determines not to make or pay such dividend or distribution, to be the Exchange Rate that
would then be in effect if such dividend or distribution had not been declared. 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 Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders
of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares
of Common Stock equal to the Exchange Rate on the Ex-Dividend Date for such cash dividend or distribution.


 


(e)           
If the Guarantor or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock,
to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and
including, the Trading Day next succeeding the date such tender or exchange offer expires, the Exchange Rate shall be increased
based on the following formula:


 





 


where,


 


 


 


 


 


 


 


 






    	 	75	 



     


    

 


 


 





	CR0	=	the Exchange Rate in effect
immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires;
	 	 	 
	CR'	=	the Exchange Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and
including, the Trading Day next succeeding the date such tender or exchange offer expires;
	 	 	 
	AC	=	the aggregate value of all cash and any other consideration (as determined by the Guarantor’s Board of Directors)
paid or payable for shares of Common Stock purchased in such tender or exchange offer;
	 	 	 
	OS0	=	the number of shares of
Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase
of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
	 	 	 
	OS'	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after
giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
and
	 	 	 
	SP'	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing
on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.



 


The increase to the Exchange Rate under
this ‎Section 14.04(e) shall occur at the close of business
on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange
offer expires; provided that (x) in respect of any exchange of Notes for which Physical Settlement is applicable, if the
relevant Exchange Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding
the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph
shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding
the date that such tender or exchange offer expires to, and including, the Exchange Date in determining the Exchange Rate and (y)
in respect of any exchange of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that
falls within the relevant Observation Period for such exchange and within the 10 Trading Days immediately following, and including,
the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th”
in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including,
the Trading Day next succeeding the expiration date of such tender or exchange offer to, and including, such Trading Day in determining
the Exchange Rate as of such Trading Day.


 


 


 


 


 


 


 


 






    	 	76	 



     


    

 


 


 


(f)            
Notwithstanding this ‎‎Section 14.04 or any other provision of this Indenture or the Notes, if an Exchange
Rate adjustment becomes effective on any Ex-Dividend Date, and a Holder that has exchanged its Notes on or after such Ex-Dividend
Date and on or prior to the related Record Date would be treated as the record holder of the shares of Common Stock as of the related
Exchange Date as described under ‎‎Section 14.02(i) based on an adjusted Exchange Rate for such Ex-Dividend Date,
then, notwithstanding the Exchange Rate adjustment provisions in this ‎‎‎Section 14.04, the Exchange Rate adjustment
relating to such Ex-Dividend Date shall not be made for such exchanged Holder. Instead, such Holder shall be treated as if such
Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution
or other event giving rise to such adjustment.


 


(g)           
Except as stated herein, the Company shall not adjust the Exchange Rate for the issuance of shares of the Common Stock or
any securities exchangeable into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock
or such convertible or exchangeable securities.


 


(h)           
In addition to those adjustments required by clauses ‎‎(a), ‎‎(b), ‎‎(c), ‎‎(d)
and ‎‎(e) of this ‎‎‎Section 14.04, and to the extent permitted by applicable law and subject
to the applicable rules of any exchange on which any of the Guarantor’s securities are then listed, the Company from time
to time may increase the Exchange Rate by any amount for a period of at least 20 Business Days if the Guarantor’s Board of
Directors determines that such increase would be in the Company’s best interest. In addition, to the extent permitted by
applicable law and subject to the applicable rules of any exchange on which any of the Guarantor’s securities are then listed,
the Company may (but is not required to) increase the Exchange Rate to avoid or diminish any income tax to holders of Common Stock
or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire
shares of Common Stock) or similar event. Whenever the Exchange Rate is increased pursuant to either of the preceding two sentences,
the Company shall deliver to the Holder of each Note a notice of the increase at least 15 days prior to the date the increased
Exchange Rate takes effect, and such notice shall state the increased Exchange Rate and the period during which it will be in effect.


 


(i)            
Notwithstanding anything to the contrary in this ‎‎Article 14, the Exchange 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 Guarantor’s securities and the investment of additional optional amounts in shares of
Common Stock under any plan;


 


(ii)           
upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or
future employee, director or consultant benefit plan or program of or assumed by the Guarantor or any of the Guarantor’s
Subsidiaries;


 


 


 


 


 


 


 


 






    	 	77	 



     


    

 


 


 


(iii)           
upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable
or convertible security not described in clause ‎‎(ii) of this subsection and outstanding as of the date
the Notes were first issued;


 


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


 


(v)           
for accrued and unpaid interest, if any.


 


(j)            
All calculations and other determinations under this ‎Article 14 shall be made by the Company and shall be made
to the nearest one-ten thousandth (1/10,000th) of a share.


 


(k)           
Whenever the Exchange Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Exchange
Agent if not the Trustee) an Officer’s Certificate setting forth the Exchange Rate after such adjustment and setting forth
a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received
such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Exchange Rate and
may assume without inquiry that the last Exchange Rate of which it has knowledge is still in effect. Promptly after delivery of
such certificate, the Company shall prepare a notice of such adjustment of the Exchange Rate setting forth the adjusted Exchange
Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Exchange Rate
to each Holder. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.


 


(l)            
For purposes of this ‎ ‎‎Section 14.04, the number of shares of Common Stock at any time outstanding
shall not include shares of Common Stock held in the treasury of the Guarantor so long as the Guarantor does not pay any dividend
or make any distribution on shares of Common Stock held in the treasury of the Guarantor, but shall include shares of Common Stock
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.


 


Section 14.05. 
Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported
Sale Prices, the Daily VWAPs, the Daily Exchange Values or the Daily Settlement Amounts over a span of multiple days (including,
without limitation, an Observation Period and the period for determining the Stock Price for purposes of a Make-Whole Fundamental
Change or Optional Redemption), the Company’s Board of Directors shall make appropriate adjustments to each to account for
any adjustment to the Exchange Rate that becomes effective, or any event requiring an adjustment to the Exchange Rate where the
Ex-Dividend Date, Effective Date or expiration date, as the case may be, of the event occurs, at any time during the period when
the Last Reported Sale Prices, the Daily VWAPs, the Daily Exchange Values or the Daily Settlement Amounts are to be calculated.


 


Section 14.06. 
Shares to Be Fully Paid. The Guarantor shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to provide for exchange of the Notes from time to time as
such Notes are presented for exchange (assuming delivery of the maximum number of Additional Shares pursuant to ‎‎Section
14.03 and that at the time of computation of such number of shares, all such Notes would be exchanged by a single Holder and that
Physical Settlement were applicable).


 


 


 


 


 


 


 






    	 	78	 



     


    

 


 


 


Section 14.07. 
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.


 


(a)           
In the case of:


 


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


 


(ii)           
any consolidation, merger, combination or similar transaction involving the Guarantor,


 


(iii)           
any sale, lease or other transfer to a third party of the consolidated assets of the Guarantor and the Guarantor’s
Subsidiaries substantially as an entirety or


 


(iv)           
any statutory share exchange,


 


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)
(any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to
exchange each $1,000 principal amount of Notes shall be changed into a right to exchange such principal amount of Notes into the
kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that
a holder of a number of shares of Common Stock equal to the Exchange Rate immediately prior to such Merger Event would have owned
or been entitled to receive (the “Reference Property,” with each “unit of Reference Property”
meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such
Merger Event and, prior to or at the effective time of such Merger Event, the Company, the Guarantor or the successor or purchasing
Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under ‎‎Section
10.01(g) providing for such change in the right to exchange each $1,000 principal amount of Notes; provided, however,
that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form
of consideration to be paid or delivered, as the case may be, upon exchange of Notes in accordance with ‎‎‎Section
14.02 and (B) (I) any amount payable in cash upon exchange of the Notes in accordance with ‎‎‎Section
14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver
upon exchange of the Notes in accordance with ‎‎‎Section
14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common
Stock would have been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value
of a unit of Reference Property.


 


 


 


 


 


 


 


 






    	 	79	 



     


    

 


 


 


If the Merger Event causes the Common Stock
to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part
upon any form of stockholder election), then (i) the Reference Property into which the Notes will be exchangeable shall be deemed
to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii)
the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to
in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event,
then for all exchanges for which the relevant Exchange Date occurs after the effective date of such Merger Event (A) the consideration
due upon exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Exchange Rate in effect
on the Exchange Date (as may be increased by any Additional Shares pursuant to ‎‎Section
14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the
Exchange Obligation by paying cash to exchanging Holders on the second Business Day immediately following the relevant Exchange
Date. The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) of such weighted average
as soon as practicable after such determination is made.


 


Such supplemental indenture described in
the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent
as is possible to the adjustments provided for in this ‎‎Article
14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets
(including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be,
in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional
provisions to protect the interests of the Holders of the Notes as the Guarantor’s Board of Directors shall reasonably consider
necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in ‎‎Article
15.


 


(b)           
When the Company and/or the Guarantor executes a supplemental indenture pursuant to subsection ‎‎(a) of this
‎Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate briefly stating the
reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after
any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with,
and shall promptly deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental
indenture to be delivered to each Holder within 20 days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.


 




(c)           
Neither the Company nor the Guarantor shall not become a party to any Merger Event unless its terms are consistent with
this ‎‎Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to exchange its
Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in ‎‎Section
14.01 and ‎‎‎Section 14.02 prior to the effective date of such Merger Event.


 


 


 


 


 


 


 


 






    	 	80	 



     


    

 


 


 


(d)           
The above provisions of this Section shall similarly apply to successive Merger Events.


 


Section 14.08. 
Certain Covenants. (a) The Company and the Guarantor covenants that all shares of Common Stock issued upon exchange
of Notes will be fully paid and non-assessable by the Guarantor and free from all taxes, liens and charges with respect to the
issue thereof.


 


(b)           
Each of the Company and the Guarantor covenants that, if any shares of Common Stock to be provided for the purpose of exchange
of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such
shares of Common Stock may be validly issued upon exchange, the Company and/or the Guarantor will, to the extent then permitted
by the rules and interpretations of the Commission, secure such registration or approval, as the case may be.


 


(c)           
Each of the Company and the Guarantor further covenants that if at any time the Common Stock shall be listed on any national
securities exchange or automated quotation system the Company and the Guarantor will list and keep listed, so long as the Common
Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon exchange of the Notes.


 


Section 14.09. 
Responsibility of Trustee. The Trustee and any other Exchange Agent shall not at any time be under any duty or responsibility
to any Holder to determine the Exchange Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment
(including any increase) of the Exchange Rate, or with respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the
same. The Trustee and any other Exchange 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 exchange
of any Note; and the Trustee and any other Exchange Agent make no representations with respect thereto. Neither the Trustee nor
any Exchange Agent shall be responsible for any failure of the Guarantor to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of exchange or to
comply with any of the duties, responsibilities or covenants of the Company or the Guarantor contained in this Article. Without
limiting the generality of the foregoing, neither the Trustee nor any Exchange Agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture entered into pursuant to ‎‎Section
14.07 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders
upon the exchange of their Notes after any event referred to in such ‎‎Section
14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of ‎‎Section
7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officer’s Certificate (which the Company and the Guarantor shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor
the Exchange Agent shall be responsible for determining whether any event contemplated by ‎‎Section
14.01(b) has occurred that makes the Notes eligible for exchange or no longer eligible therefor until the Company has delivered
to the Trustee and the Exchange Agent the notices referred to in ‎‎Section
14.01(b) with respect to the commencement or termination of such exchange rights, on which notices the Trustee and the Exchange
Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Exchange Agent immediately after
the occurrence of any such event or at such other times as shall be provided for in ‎Section
14.01(b).


 


 


 


 


 


 


 


 






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Section 14.10. 
Notice to Holders Prior to Certain Actions. In case of any:


 


(a)           
action by the Company, the Guarantor or one of its Subsidiaries that would require an adjustment in the Exchange Rate pursuant
to ‎‎‎Section 14.04 or ‎‎Section 14.11;


 


(b)           
Merger Event; or


 


(c)           
voluntary or involuntary dissolution, liquidation or winding-up of the Company, the Guarantor or any of its Subsidiaries;


then, in each case (unless notice of such event is otherwise
required pursuant to another provision of this Indenture), the Company shall cause to be filed with the Trustee and the Exchange
Agent (if other than the Trustee) and to be delivered to each Holder, as promptly as possible but in any event at least 20 days
prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose
of such action by the Company, the Guarantor or one of its Subsidiaries or, if a record is not to be taken, the date as of which
the holders of Common Stock of record are to be determined for the purposes of such action by the Company, the Guarantor or one
of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up.
Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company, the
Guarantor or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.


 


Section 14.11. 
Stockholder Rights Plans. If the Guarantor has a stockholder rights plan in effect upon exchange of the Notes, each
share of Common Stock, if any, issued upon such exchange shall be entitled to receive the appropriate number of rights, if any,
and the certificates representing the Common Stock issued upon such exchange shall bear such legends, if any, in each case as may
be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior
to any exchange of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable
stockholder rights plan, the Exchange Rate shall be adjusted at the time of separation as if the Company distributed to all or
substantially all holders of the Common Stock Distributed Property as provided in ‎‎‎‎Section
14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.


 


 


 


 


 


 


 






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Article
15

Repurchase of Notes at Option of Holders


 


Section 15.01. 
Repurchase at Option of Holders Upon a Fundamental Change.


 


(a)           
If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s option, to require
the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof that is equal to $1,000 or an integral
multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company that is
not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change Company Notice at a repurchase
price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to, but excluding, the Fundamental
Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase
Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates,
in which case the Company shall instead pay, or cause to be paid, the full amount of accrued and unpaid interest to Holders of
record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount
of Notes to be repurchased pursuant to this ‎Article 15.


 


(b)           
Repurchases of Notes under this ‎Section 15.01 shall be made, at the option of the Holder thereof, upon:


 


(i)           
delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”)
in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in
compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in
each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date;
and


 


(ii)           
delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental
Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent,
or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each
case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 


 


 


 


 


 


 


 






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The Fundamental Change Repurchase Notice
in respect of any Notes to be repurchased shall state:


 


(i)           
in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;


 


(ii)           
the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and


 


(iii)           
that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;


 


provided, however, that if the Notes are Global
Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.


 


Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this ‎Section 15.01 shall
have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business
on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with ‎Section 15.02.


 


The Paying Agent shall promptly notify the
Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.


 


(c)           
On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall
provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice
(the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change
and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice
shall be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable
procedures of the Depositary. Simultaneously with providing such notice, the Company or the Guarantor will issue a press release
and make the information available on Guarantor’s website or through such other public medium as the Guarantor may use at
that time. Each Fundamental Change Company Notice shall specify:


 


(i)           
the events causing the Fundamental Change;


 


(ii)           
the date of the Fundamental Change;


 


(iii)           
the last date on which a Holder may exercise the repurchase right pursuant to this ‎Article 15;


 


(iv)           
the Fundamental Change Repurchase Price;


 


(v)           
the Fundamental Change Repurchase Date;


 


 


 


 


 


 


 


 






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(vi)           
the name and address of the Paying Agent and the Exchange Agent, if applicable;


 


(vii)           
if applicable, the Exchange Rate and any adjustments to the Conversion Rate;


 


(viii)           
that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be exchanged
only if the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and


 


(ix)           
the procedures that Holders must follow to require the Company to repurchase their Notes.


 


No failure of the Company to give the foregoing
notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the
repurchase of the Notes pursuant to this ‎Section 15.01.


 


At the Company’s request, the Trustee
shall give such notice in the Company’s name and at the Company’s expense; provided, however, that, in
all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.


 


(d)           
 Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon
a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on
or prior to such date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental
Change Repurchase Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any
Physical Notes held by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default
by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry
transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such
return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have
been withdrawn.


 


Section 15.02. 
Withdrawal of Fundamental Change Repurchase Notice.


 


(a)           
A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal
delivered to the Corporate Trust Office of the Paying Agent in accordance with this ‎‎‎Section 15.02 at any
time prior to the close of business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase
Date, specifying:


 


(i)           
the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,


 


 


 


 


 


 


 


 






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(ii)           
if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is
being submitted, and


 


(iii)           
the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which
portion must be in principal amounts of $1,000 or an integral multiple of $1,000;


 


provided, however, that if the Notes are Global
Notes, the notice must comply with appropriate procedures of the Depositary.


 


Section 15.03. 
Deposit of Fundamental Change Repurchase Price.


 


(a)           
The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in ‎Section 4.04) on or prior to 11:00 a.m.,
New York City time, on the Fundamental Change Repurchase Date, an amount of money sufficient to repurchase all of the Notes to
be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee
(or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the
close of business on the second Scheduled Trading Day immediately preceding the Fundamental Change Repurchase Date) will be made
on the later of (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in ‎Section
15.01) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed
by the Company) by the Holder thereof in the manner required by ‎Section 15.01 by mailing checks for the amount payable
to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that
payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its
nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds
in excess of the Fundamental Change Repurchase Price.


 


(b)           
If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed
by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such
Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have
not been validly withdrawn, (iv) such Notes will cease to be outstanding, (v) interest will cease to accrue on such Notes (whether
or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (vi)
all other rights of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase
Price and, if applicable, accrued and unpaid interest).


 


(c)           
Upon surrender of a Note that is to be repurchased in part pursuant to ‎Section 15.01, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to
the unrepurchased portion of the Note surrendered.


 


 


 


 


 


 


 


 






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Section 15.04. 
Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company
will, if required:


 


(a)           
comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act;


 


(b)           
file a Schedule TO or any other required schedule under the Exchange Act, in each case, to the extent applicable; and


 


(c)           
otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the
Notes;


 


(d)           
in each case, so as to permit the rights and obligations under this ‎Article 15 to be exercised in the time and
in the manner specified in this ‎Article 15.


 


Article
16

Optional Redemption


 


Section 16.01. 
Optional Redemption. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company
prior to March 20, 2024. On or after March 20, 2024, the Company may redeem (an “Optional Redemption”) for cash
all or any portion of the Notes, at the Redemption Price, if the Last Reported Sale Price of the Common Stock has been at least
130% of the Exchange Price then in effect for at least 20 Trading Days (whether or not consecutive) during any 30 consecutive Trading
Day period (including the last Trading Day of such period) ending on, and including, the Trading Day immediately preceding the
date on which the Company provides the Redemption Notice in accordance with ‎‎Section
16.02.


 


Section 16.02. 
Notice of Optional Redemption; Selection of Notes. (a) In case the Company exercises its Optional Redemption right
to redeem all or, as the case may be, any part of the Notes pursuant to ‎‎Section
16.01, it shall fix a date for redemption (each, a “Redemption Date”) and it or, at its written request received
by the Trustee not less than 55 calendar days prior to the Redemption Date (or such shorter period of time as may be acceptable
to the Trustee), the Trustee, in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice
of such Optional Redemption (a “Redemption Notice”) not less than 45 nor more than 60 Scheduled Trading Days
prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or in part; provided, however,
that, if the Company shall give such notice, it shall also give written notice of the Redemption Date to the Trustee. The Redemption
Date must be a Business Day.


 


(b)           
The Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to give such Redemption Notice by mail or any defect in the
Redemption Notice to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Note.


 


 


 


 


 


 


 


 






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(c)           
Each Redemption Notice shall specify:


 


(i)           
the Redemption Date;


 


(ii)           
the Redemption Price;


 


(iii)           
that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after the Redemption Date;


 


(iv)           
the place or places where such Notes are to be surrendered for payment of the Redemption Price;


 


(v)           
that Holders may surrender their Notes for exchange at any time prior to the close of business on the second Scheduled Trading
Day immediately preceding the Redemption Date;


 


(vi)           
the procedures an exchanging Holder must follow to exchange its Notes and the Settlement Method and Specified Dollar Amount,
if applicable;


 


(vii)           
the Exchange Rate and, if applicable, the number of Additional Shares added to the Exchange Rate in accordance with ‎‎Section
14.03;


 


(viii)           
the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and


 


(ix)           
in case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after
the Redemption Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall
be issued.


 


A Redemption Notice shall be irrevocable.


 


(d)           
If fewer than all of the outstanding Notes are to be redeemed, Notes or portions thereof to be redeemed will be selected
according to the procedures of the Depositary, in the case of a Global Note, or, in the case of Notes in certificated form, the
Trustee shall select, in such manner as it considers to be fair and appropriate, Notes to be redeemed in whole or in part. If any
Note selected for partial redemption is submitted for exchange in part after such selection, the portion of the Note submitted
for exchange shall be deemed (so far as may be possible) to be the portion selected for redemption.


 


Section 16.03. 
Payment of Notes Called for Redemption. (a) If any Redemption Notice has been given in respect of the Notes in accordance
with ‎‎Section 16.02, the Notes called for redemption shall become due and
payable on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable Redemption Price. On
presentation and surrender of the Notes called for redemption at the place or places stated in the Redemption Notice, the Notes
shall be paid and redeemed by the Company at the applicable Redemption Price.


 


 


 


 


 


 


 






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(b)           
Prior to the open of business on the Redemption Date, the Company shall deposit, or cause to be deposited, with the Paying
Agent or, if the Company or a Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided
in ‎‎Section 7.05 an amount of cash (in immediately available funds if deposited on the Redemption Date), sufficient
to pay the Redemption Price of all of the Notes to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying
Agent, payment for the Notes to be redeemed shall be made on the Redemption Date for such Notes. The Paying Agent shall, promptly
after such payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption Price.


 


Section 16.04. 
Restrictions on Redemption. The Company may not redeem any Notes on any date if the principal amount of the Notes
has been accelerated in accordance with the terms of this Indenture, and such acceleration has not been rescinded, on or prior
to the Redemption Date (except in the case of an acceleration resulting from a Default by the Company in the payment of the Redemption
Price with respect to such Notes).


 


Article
17

Miscellaneous Provisions


 


Section 17.01. 
Provisions Binding on Company’s and the Guarantor’s Successors. All the covenants, stipulations, promises
and agreements of each of the Company and the Guarantor contained in this Indenture shall bind its successors and assigns whether
so expressed or not.


 


Section 17.02. 
Official Acts by Successor Entity. Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or Officer of the Company or the Guarantor shall and may be done and performed
with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be
the lawful sole successor of the Company or the Guarantor, as the case may be.


 


Section 17.03. 
Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted
to be given or served by the Trustee or by the Holders on the Company or the Guarantor shall be deemed to have been sufficiently
given or made, for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post
office letter box addressed (until another address is filed by the Company or the Guarantor, as the case may be, with the Trustee)
or by email to Avid SPV, LLC, c/o Avid Bioservices, Inc., 2642 Michelle Drive, Suite 200, Tustin, California 92780, Attention:
General Counsel, MZiebell@avidbio.com. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered
or certified mail in a post office letter box addressed to the Corporate Trust Office.


 


The Trustee, by notice to the Company and
the Guarantor, may designate additional or different addresses for subsequent notices or communications.


 


 


 


 


 


 


 


 






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Any notice or communication delivered or
to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it
appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication
delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable procedures of the
Depositary and shall be sufficiently given to it if so delivered within the time prescribed.


 


Failure to mail or deliver a notice or communication
to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is
mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the addressee receives
it.


 


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 to Holders by mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.


 


Section 17.04. 
Governing Law; Jurisdiction. THIS INDENTURE, EACH NOTE AND THE GUARANTEE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING
UNDER OR RELATED TO THIS INDENTURE, EACH NOTE AND THE GUARANTEE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).


 


Each of the Company and the Guarantor irrevocably
consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, 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
Indenture, the Notes or the Guarantee may be brought in the courts of the State of New York or the courts of the United States
located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes and
the Guarantee have been paid, 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 Company and the Guarantor 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 Indenture brought in the
courts of the State of New York or the courts of the United States 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.


 


Section 17.05. 
Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application
or demand by the Company or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the
Company or the Guarantor, as the case may be, shall, if requested by the Trustee, furnish to the Trustee an Officer’s Certificate
and an Opinion of Counsel stating that such action is permitted by the terms of this Indenture.


 


 


 


 


 


 


 


 






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Each Officer’s Certificate or Opinion
of Counsel provided for, by or on behalf of the Company or the Guarantor in this Indenture and delivered to the Trustee with respect
to compliance with this Indenture (other than the Officer’s Certificates provided for in ‎‎Section
4.08) shall include (a) a statement that the person signing such certificate is familiar with the requested action and this Indenture;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such
certificate is based; (c) a statement that, in the judgment of such person, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed judgment as to whether or not such action is permitted by this Indenture;
and (d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture.


 


Notwithstanding anything to the contrary
in this ‎‎Section 17.05, if any provision in this Indenture
specifically provides that the Trustee shall or may receive an Opinion of Counsel in connection with any action to be taken by
the Trustee, the Company or the Guarantor hereunder, the Trustee shall be entitled to, or entitled to request, such Opinion of
Counsel.


 


Section 17.06. 
Legal Holidays. In any case where any Interest Payment Date, any Redemption Date, any Fundamental Change Repurchase
Date or the Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may
be taken on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue
in respect of the delay.


 


Section 17.07. 
No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed
to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction.


 


Section 17.08. 
Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person,
other than the Holders, the parties hereto, any Paying Agent, any Exchange Agent, any authenticating agent, any Note Registrar
and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.


 


Section 17.09. 
Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections
of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.


 


Section 17.10. 
Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf
and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers
and exchanges of Notes hereunder, including under ‎‎Section 2.04, ‎‎Section
2.05, ‎‎Section 2.06, ‎‎Section
2.07, ‎‎Section 10.04 and ‎Section
15.03 as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and
those Sections to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes
by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement
hereunder or in the Notes for the Trustee’s certificate of authentication. Such authenticating agent shall at all times be
a Person eligible to serve as trustee hereunder pursuant to ‎‎Section 7.08.


 


 


 


 


 


 


 


 






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Any corporation or other entity into which
any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting
from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity
succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder,
if such successor corporation or other entity is otherwise eligible under this ‎‎Section
17.10, without the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating
agent or such successor corporation or other entity.


 


Any authenticating agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency
of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible
under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written notice
of such appointment to the Company and shall deliver notice of such appointment to all Holders.


 


The Company agrees to pay to the authenticating
agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if
it determines such agent’s fees to be unreasonable.


 


The provisions of ‎‎Section
7.02, ‎‎Section 7.03, ‎‎Section
7.04, ‎‎Section 8.03 and this ‎‎Section
17.10 shall be applicable to any authenticating agent.


 


If an authenticating agent is appointed
pursuant to this ‎‎Section 17.10, the Notes may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the
following form:


 


__________________________,

as Authenticating Agent, certifies that this is one of the Notes described

in the within-named Indenture.


 


By: ____________________

Authorized Officer


 


 


 


 


 


 


 






    	 	92	 



     


    

 


 


 


Section 17.11. 
Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture
and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as
to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted
by facsimile or PDF shall be deemed to be their original signatures for all purposes.


 


Section 17.12. 
Severability. In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable,
then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way
be affected or impaired.


 


Section 17.13. 
Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES, THE GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 17.14. 
Force Majeure. In no event shall the Trustee 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, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services;
it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry
to resume performance as soon as practicable under the circumstances.


 


Section 17.15. 
Calculations. Except as otherwise provided herein, the Company shall be responsible for making all calculations called
for under the Notes or this Indenture. These calculations include, but are not limited to, determinations of the Last Reported
Sale Prices of the Common Stock, the Daily VWAPs, the Daily Exchange Values, the Daily Settlement Amounts, accrued interest payable
on the Notes and the Exchange Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest
error, the Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of
its calculations to each of the Trustee and the Exchange Agent, and each of the Trustee and Exchange Agent is entitled to rely
conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward the
Company’s calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.


 


Section 17.16. 
USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee,
like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain,
verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account
with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request
in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.


 


[Remainder of page intentionally left blank]


 


 


 


 


 


 


 


 


 






    	 	93	 



     


    

 


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


 


	 	COMPANY:






	 	 	 
	 	 	 
	 	AVID SPV, LLC
	 	 	 
	 	 	 
	 	By:	/s/ Daniel Hart
	 	 	Name: Daniel Hart
	 	 	Title: Chief Financial Officer
	 	 	 
	 	 	 
	 	GUARANTOR:






	 	 	 
	 	 	 
	 	AVID BIOSERVICES, INC.
	 	 	 
	 	 	 
	 	By:	/s/ Daniel Hart
	 	 	Name: Daniel Hart
	 	 	Title: Chief Financial Officer
	 	 	 
	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee
	 	 	 
	 	 	 
	 	By:	/s/ Michael K. Herberger
	 	 	Name: Michael K. Herberger
	 	 	Title: Vice President


 


 


 






    	 	94	 



     


    

 


 


 


EXHIBIT A


[FORM OF FACE OF NOTE]


 


[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]


 


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


 


[INCLUDE FOLLOWING LEGEND IF A RESTRICTED
SECURITY]


 


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


 


(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR
WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT)
AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT AND THAT IT AND ANY SUCH ACCOUNT IS NOT AN AFFILIATE
OF AVID BIOSERVICES, INC. (THE “GUARANTOR”), AND


 


(2) AGREES FOR THE BENEFIT OF THE GUARANTOR
AND AVID SPV, LLC (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL
INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD
OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:


 


(A) TO THE GUARANTOR OR ANY SUBSIDIARY
THEREOF (INCLUDING THE COMPANY), OR


 


 


 


 


 


 


 


 






    	 	A-1	 



     


    

 


 


 


(B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


(C) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.


 


PRIOR TO THE REGISTRATION OF ANY TRANSFER
IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN
COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]


 


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


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	A-2	 



     


    

 


 


 


Avid SPV, LLC



1.250% Exchangeable Senior Note due 2026


 





	No. [_____]	[Initially][1]
$[_________]



 


CUSIP No. 05369G AA6

ISIN No. US05369GAA67


 


Avid SPV, LLC, a limited liability company
duly organized and validly existing under the laws of the State of Delaware (the “Company,” which term includes any
successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises
to pay to [CEDE & CO.][2] [_______][3],
or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto][4]
[of $[_______]][5], which amount, taken
together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $[_______]
in aggregate at any time, in accordance with the rules and procedures of the Depositary, on March 15, 2026, and interest thereon
as set forth below.


 


This Note shall bear interest at the rate
of 1.250% per year from March 12, 2021, or from the most recent date to which interest had been paid or provided for to, but excluding,
the next scheduled Interest Payment Date until March 15, 2026. Interest is payable semi-annually in arrears on each March 15 and
September 15, commencing on September 15, 2021, to Holders of record at the close of business on the preceding March 1 and September
1 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth in ‎‎Section
4.06(d), ‎‎Section 4.06(e) and ‎‎Section
6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to
include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of such ‎‎Section
4.06(d), ‎‎Section 4.06(e) or ‎‎Section
6.03, and any express mention of the payment of Additional Interest in any provision therein shall not be construed as excluding
Additional Interest in those provisions thereof where such express mention is not made.


 


Any Defaulted Amounts shall accrue interest
per annum at the rate borne by the Notes plus one percent, subject to the enforceability thereof under applicable law, from, and
including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company,
at its election, in accordance with ‎‎Section 2.03(c) of
the Indenture.


 


The Company shall pay the principal of and
interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee,
as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company
shall pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company
for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes
and its agency in the Borough of Manhattan, The City of New York, as a place where Notes may be presented for payment or for registration
of transfer and exchange.


 


 


 


 


 


 


_________________


[1]       Include
if a global note.


[2]       Include
if a global note.


[3]       Include
if a physical note.


[4]       Include
if a global note.


[5]       Include
if a physical note.



 


 


 


 


 


 


 


 



    	 	A-3	 



     


    

 


 


 


Reference is made to the further provisions
of this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right
to exchange this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, on
the terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.


 


This Note, and any claim, controversy
or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of
New York (without regard to the conflicts of laws provisions thereof).


 


In the case of any conflict between this
Note and the Indenture, the provisions of the Indenture shall control and govern.


 


This Note shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been signed manually or by facsimile by the Trustee or
a duly authorized authenticating agent under the Indenture.


 


[Remainder of page intentionally left
blank]


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	A-4	 



     


    

 


 


 


IN WITNESS WHEREOF, the Company has caused
this Note to be duly executed.


 


	 	AVID SPV, LLC
	 	 
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 


Dated:


TRUSTEE’S CERTIFICATE OF AUTHENTICATION



U.S. BANK NATIONAL ASSOCIATION

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture.


 


By:_______________________________

Authorized Officer


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	A-5	 



     


    

 


 


 


[FORM OF REVERSE OF NOTE]


 


Avid SPV, LLC

1.250% Exchangeable Senior Note due 2026


 


This Note is one of a duly authorized issue
of Notes of the Company, designated as its 1.250% Exchangeable Senior Notes due 2026 (the “Notes”), limited
to the aggregate principal amount of $143,750,000, all issued or to be issued under and pursuant to an Indenture dated as of March
12, 2021 (the “Indenture”), between the Company, Avid Bioservices, Inc. (the “Guarantor”)
and U.S. Bank National Association (the “Trustee”), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount,
subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined in this Note shall
have the respective meanings set forth in the Indenture.


 


In case certain Events of Default shall
have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders
of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.


 


Subject to the terms and conditions of the
Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental
Change Repurchase Date, the Redemption Price on any Redemption Date and the principal amount on the Maturity Date, as the case
may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company will
pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts.
Upon exchange of any Note, the Company shall, at its election, pay or deliver, as the case may be, cash, shares of Common Stock
or a combination of cash and shares of Common Stock.


 


The Indenture contains provisions permitting
the Company, the Guarantor and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain
other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at
the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture
and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of at
least a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the
Notes waive any past Default or Event of Default under the Indenture and its consequences.


 


Each Holder shall have the right to receive
payment or delivery, as the case may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase
Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon exchange of, this Note
at the place, at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein
prescribed.


 


 


 


 


 


 


 


 






    	 	A-6	 



     


    

 


 


 


The Notes are issuable in registered form
without coupons in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. At the
office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the
Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment
of any service charge but, if required by the Company or Trustee , with payment of a sum sufficient to cover any transfer or similar
tax that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange
of Notes being different from the name of the Holder of the old Notes surrendered for such exchange.


 


The Notes shall be redeemable at the Company’s
option on or after March 20, 2024 in accordance with the terms and subject to the conditions specified in the Indenture. No sinking
fund is provided for the Notes.


 


Upon the occurrence of a Fundamental Change,
the Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s
Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to the Fundamental Change Repurchase Price.


 


Subject to the provisions of the Indenture,
the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified
in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to
exchange any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common Stock or a combination
of cash and shares of Common Stock, as applicable, at the Exchange Rate specified in the Indenture, as adjusted from time to time
as provided in the Indenture.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	A-7	 



     


    

 


 


ABBREVIATIONS


 


The following abbreviations, when used in
the inscription of the face of this Note, 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 MIN ACT = Uniform Gifts to Minors Act


 


CUST = Custodian


 


TEN ENT = as tenants by the entireties


 


JT TEN = joint tenants with right of survivorship and not as
tenants in common


 


Additional abbreviations may also be used
though not in the above list.


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	A-8	 



     


    

 


SCHEDULE A[6]


 


SCHEDULE OF EXCHANGES OF NOTES



Avid SPV, LLC

1.250% Exchangeable Senior Notes due 2026


 


The initial principal amount of this Global
Note is [_______] DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:


 


	
        Date of
        exchange
	 	
        Amount
        of decrease in principal amount of this Global Note
	 	
        Amount
        of increase in principal amount of this Global Note
	 	
        Principal
        amount of this Global Note following such decrease or increase
	 	
        Signature
        of authorized signatory of Trustee or Custodian

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 


 


 


 


_________________


 


[6]       Include
if a global note.


 


 


 


 


 


 






    	 	A-9	 



     


    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF EXCHANGE]


 


To: U.S. BANK NATIONAL ASSOCIATION


 


The undersigned registered owner of this
Note hereby exercises the option to exchange this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple
of $1,000 in excess thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common
Stock, as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable
and any shares of Common Stock issuable and deliverable upon such exchange, together with any cash for any fractional share, and
any Notes representing any unexchanged principal amount hereof, be issued and delivered to the registered Holder hereof unless
a different name has been indicated below. If any shares of Common Stock or any portion of this Note not exchanged are to be issued
in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer
taxes, if any in accordance with ‎‎Section 14.02(d) and
‎‎Section 14.02(e) of the Indenture. Any amount required
to be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture.


 





	Dated: ___________________________________________	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	Signature(s)	 



 


 


 


 


 


 


________________________________________________


Signature Guarantee


 


Signature(s) must be guaranteed

by an eligible Guarantor Institution

(banks, stock brokers, savings and

loan associations and credit unions)

with membership in an approved

signature guarantee medallion program

pursuant to Securities and Exchange

Commission Rule 17Ad-15 if shares

of Common Stock are to be issued, or

Notes are to be delivered, other than

to and in the name of the registered holder.


 


Fill in for registration of shares if

to be issued, and Notes if to


 


 


 






    	 	A-10	 



     


    



be delivered, other than to and in the

name of the registered holder:


 


_________________________


(Name)


 


_________________________


(Street Address)


 


_________________________


(City, State and Zip Code)


Please print name and address


 





	 	Principal amount to be exchanged (if less than all):
$______,000 
	 	 
	 	NOTICE: The above signature(s) of the Holder(s)
hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement
or any change whatever.
	 	 
	 	_________________________
	 	Social Security or Other Taxpayer
	 	Identification Number



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 






    	 	A-11	 



     


    





 


ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


To: Avid SPV, LLC


 


The undersigned registered owner of this
Note hereby acknowledges receipt of a notice from Avid SPV, LLC (the “Company”) as to the occurrence of a Fundamental
Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company
to pay to the registered holder hereof in accordance with ‎‎Section
15.01 of the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000
principal amount or an integral multiple of $1,000 in excess thereof) below designated, and (2) if such Fundamental Change Repurchase
Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued
and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.


 


In the case of Physical Notes, the certificate
numbers of the Notes to be repurchased are as set forth below:


 


 


	Dated: ___________________________________________	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	Signature(s)	 





 


 





	 	_________________________
	 	Social Security or Other Taxpayer
	 	Identification Number


 





	 	Principal amount to be exchanged (if less than all):
$______,000 
	 	 
	 	NOTICE: The above signature(s) of the Holder(s)
hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement
or any change whatever.



 


 


 






    	 	A-12	 



     


    

 


ATTACHMENT 3


 


[FORM OF ASSIGNMENT AND TRANSFER]


 


For value received ____________________________ hereby sell(s),
assign(s) and transfer(s) unto _________________ (Please insert social security or Taxpayer Identification Number of assignee)
the within Note, and hereby irrevocably constitutes and appoints _____________________ attorney to transfer the said Note on the
books of the Company, with full power of substitution in the premises.


 


In connection with any transfer of the within Note occurring
prior to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that
such Note is being transferred:


 


		☐	To Avid Bioservices, Inc., or a subsidiary thereof (including Avid SPV, LLC); or



 


		☐	Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended;
or



 


		☐	Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or



 


		☐	Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption
from the registration requirements of the Securities Act of 1933, as amended.



 


Dated: ________________________


 


 


_____________________________________


 


 


_____________________________________


Signature(s)


 


 


_____________________________________


Signature Guarantee


 


Signature(s) must be guaranteed by an

eligible Guarantor Institution (banks, stock

brokers, savings and loan associations and

credit unions) with membership in an approved

signature guarantee medallion program pursuant

to Securities and Exchange Commission

Rule 17Ad-15 if Notes are to be delivered, other

than to and in the name of the registered holder.


 


NOTICE: The signature on the assignment
must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any
change whatever.










 


 


 


 






    	 	A-13