Exhibit 4.1


 


Execution Version


 





 



 


SHAKE SHACK INC.


 


AND


 


U.S.
Bank National Association,


 


as Trustee


 


INDENTURE


 


Dated as of March 4, 2021


 


0% Convertible Senior Notes due 2028


 





 









     


     


    

 


TABLE OF CONTENTS


 


 






Page


 


Article 1

Definitions


 


	Section 1.01 .	Definitions	1
	Section 1.02 .	References to Interest	14




 


Article 2

Issue, Description, Execution, Registration and Exchange of Notes


 


	Section 2.01 .	Designation and Amount	14
	Section 2.02 .	Form of Notes	14
	Section 2.03 .	 Date and Denomination of Notes; No Regular Interest; Special Interest and Defaulted Amounts	15
	Section 2.04 .	 Execution, Authentication and Delivery of Notes	17
	Section 2.05 .	 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary.	17
	Section 2.06 .	Mutilated, Destroyed, Lost or Stolen Notes	24
	Section 2.07 .	Temporary Notes	25
	Section 2.08 .	Cancellation of Notes Paid, Converted, Etc	25
	Section 2.09 .	 CUSIP Numbers	25
	Section 2.10 .	Additional Notes; Repurchases	26




 


Article 3

Satisfaction and Discharge


 


	Section 3.01 .	Satisfaction and Discharge	26




 


Article 4

Particular Covenants of the Company


 


	Section 4.01 .	 Payment of Principal and Special Interest	27
	Section 4.02 .	Maintenance of Office or Agency	27
	Section 4.03 .	Appointments to Fill Vacancies in Trustee’s Office	28
	Section 4.04 .	Provisions as to Paying Agent	28
	Section 4.05 .	Existence	 	29
	Section 4.06 .	Rule 144A Information Requirement and Annual Reports	29
	Section 4.07 .	Stay, Extension and Usury Laws	31
	Section 4.08 .	Compliance Certificate; Statements as to Defaults	31
	Section 4.09 .	Further Instruments and Acts	32




 






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Article 5

Lists of Holders and Reports by the Company and the Trustee


 


	Section 5.01 .	 Lists of Holders	32
	Section 5.02 .	 Preservation and Disclosure of Lists	32




 


Article 6

Defaults and Remedies


 


	Section 6.01 .	 Events of Default	32
	Section 6.02 .	Acceleration; Rescission and Annulment	34
	Section 6.03 .	 Special Interest	35
	Section 6.04 .	Payments of Notes on Default; Suit Therefor	35
	Section 6.05 .	 Application of Monies Collected by Trustee	37
	Section 6.06 .	Proceedings by Holders	38
	Section 6.07 .	Proceedings by Trustee	39
	Section 6.08 .	Remedies Cumulative and Continuing	39
	Section 6.09 .	Direction of Proceedings and Waiver of Defaults by Majority of Holders	39
	Section 6.10 .	Notice of Defaults	40
	Section 6.11 .	Undertaking to Pay Costs	40




 


Article 7

Concerning the Trustee


 


	Section 7.01 .	 Duties and Responsibilities of Trustee	40
	Section 7.02 .	Reliance on Documents, Opinions, Etc	42
	Section 7.03 .	No Responsibility for Recitals, Etc	44
	Section 7.04 .	Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes	44
	Section 7.05 .	Monies and Shares of Common Stock To Be Held in Trust	44
	Section 7.06 .	 Compensation and Expenses of Trustee	44
	Section 7.07 .	Officer’s Certificate as Evidence	45
	Section 7.08 .	Eligibility of Trustee	45
	Section 7.09 .	 Resignation or Removal of Trustee.	45
	Section 7.10 .	 Acceptance by Successor Trustee	46
	Section 7.11 .	Succession by Merger, Etc	47
	Section 7.12 .	Trustee’s Application for Instructions from the Company	48




 


Article 8

Concerning the Holders


 


	Section 8.01 .	 Action by Holders	48
	Section 8.02 .	Proof of Execution by Holders	48
	Section 8.03 .	 Who Are Deemed Absolute Owners	49
	Section 8.04 .	Company-Owned Notes Disregarded	49
	Section 8.05 .	Revocation of Consents; Future Holders Bound	49




 






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Article 9

Holders’ Meetings


 


	Section 9.01 .	Purpose of Meetings	50
	Section 9.02 .	Call of Meetings by Trustee	50
	Section 9.03 .	Call of Meetings by Company or Holders	50
	Section 9.04 .	 Qualifications for Voting	51
	Section 9.05 .	 Regulations	51
	Section 9.06 .	Voting	51
	Section 9.07 .	No Delay of Rights by Meeting	52




 


Article 10

Supplemental Indentures


 


	Section 10.01 .	Supplemental Indentures Without Consent of Holders	52
	Section 10.02 .	Supplemental Indentures with Consent of Holders	53
	Section 10.03 .	Effect of Supplemental Indentures	54
	Section 10.04 .	Notation on Notes	54
	Section 10.05 .	Evidence of Compliance of Supplemental Indenture To Be Furnished Trustee	54




 


Article 11

Consolidation, Merger, Sale, Conveyance and Lease


 


	Section 11.01 .	Company May Consolidate, Etc. on Certain Terms	 	55
	Section 11.02 .	Successor Corporation To Be Substituted	55




 


Article 12

Immunity of Incorporators, Stockholders, Officers and Directors


 


	Section 12.01 .	Indenture and Notes Solely Corporate Obligations	56




 


Article 13

[Intentionally Omitted]


 


Article 14

Conversion of Notes


 


	Section 14.01 .	Conversion Privilege.	56
	Section 14.02 .	Conversion Procedure; Settlement Upon Conversion.	61
	Section 14.03 .	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Notice
of Redemption.	66
	Section 14.04 .	Adjustment of Conversion Rate	68
	Section 14.05 .	 Adjustments of Prices	77
	Section 14.06 .	 Shares To Be Fully Paid	77




 






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	Section 14.07 .	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.	78
	Section 14.08 .	Certain Covenants	80
	Section 14.09 .	Responsibility of Trustee	80
	Section 14.10 .	Notice to Holders Prior to Certain Actions	81
	Section 14.11 .	Stockholder Rights Plans	81
	Section 14.12 .	Exchange in Lieu of Conversion.	81




 


Article 15

Repurchase of Notes at Option of Holders


 


	Section 15.01 .	[Intentionally Omitted].	82
	Section 15.02 .	 Repurchase at Option of Holders Upon a Fundamental Change.	82
	Section 15.03 .	Withdrawal of Fundamental Change Repurchase Notice	85
	Section 15.04 .	Deposit of Fundamental Change Repurchase Price	86
	Section 15.05 .	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.	89
	Section 16.04 .	Restrictions on Redemption	89




 


Article 17

Miscellaneous Provisions


 


	Section 17.01 .	 Provisions Binding on Company’s Successors	89
	Section 17.02 .	Official Acts by Successor Corporation	90
	Section 17.03 .	Addresses for Notices, Etc	90
	Section 17.04 .	Governing Law; Jurisdiction	90
	Section 17.05 .	 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	91
	Section 17.06 .	Legal Holidays	92
	Section 17.07 .	No Security Interest Created	92
	Section 17.08 .	Benefits of Indenture	92
	Section 17.09 .	Table of Contents, Headings, Etc	92
	Section 17.10 .	Authenticating Agent	92
	Section 17.11 .	Execution in Counterparts	93
	Section 17.12 .	Severability	93
	Section 17.13 .	Waiver of Jury Trial	94
	Section 17.14 .	 Force Majeure	94
	Section 17.15 .	 Calculations	94
	Section 17.16 .	USA PATRIOT Act	94
	Section 17.17 .	Electronic Signatures	94




 






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	EXHIBIT		 
	Exhibit A	Form of Note	A-1




 






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INDENTURE dated as of March 4, 2021
between SHAKE SHACK INC., a Delaware corporation, as issuer (the “Company,” as more fully set forth in ‎Section 1.01)
and U.S. Bank National Association, a national banking 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 0% Convertible Senior Notes due 2028 (the “Notes”), initially
in an aggregate principal amount not to exceed $250,000,000, 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


 


WHEREAS, the Form of Note, the certificate
of authentication to be borne by each Note, the Form of Notice of Conversion, 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 agreement
according to its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes
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, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Notes (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.


 


“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 the board of directors of the Company 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 Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.


 


“Business Day” means,
with respect to any Note, 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.


 


“Called Notes” means
Notes called for redemption pursuant to ‎Article 16 or subject to a Deemed Redemption.


 


“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, but shall not include any debt securities convertible into or exchangeable
for any securities otherwise constituting Capital Stock pursuant to this definition.


 


“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).


 


“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.


 









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“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 Class A common stock of the Company, par value $0.001 per share, at the date of this Indenture, 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 any of its Officers and delivered to the Trustee.


 


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


 


“Conversion Consideration”
shall have the meaning specified in ‎Section 14.12(a).


 


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


 


“Conversion Obligation”
shall have the meaning specified in ‎Section 14.01(a).


 


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


 


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


 


“Corporate Event” shall
have the meaning specified in ‎Section 14.01(b)(iii).


 


“Corporate Trust Office”
means the designated 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 U.S. Bank National Association, West Side Flats, St. Paul, 60 Livingston Avenue, Saint Paul, MN
55107 Attention: Shake Shack Inc. Administrator, or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the designated corporate trust office of any successor trustee (or such other address as such
successor trustee may designate from time to time by notice to the Holders and the Company).


 


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


 


“Daily Conversion Value”
means, for each of the 20 consecutive Trading Days during the relevant Observation Period, 5.0% of the product of (a) the
Conversion 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 20.


 






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“Daily Settlement Amount,”
for each of the 20 consecutive Trading Days during the relevant Observation Period, shall consist of:


 


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


 


(b)            if
the Daily Conversion 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 Conversion Value and the Daily Measurement Value, divided by (ii) the Daily
VWAP for such Trading Day.


 


“Daily VWAP” means, for
each of the 20 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 “SHAK <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 the 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.


 


“Deemed Redemption” shall
have the meaning specified in ‎‎Section 14.01(b)(v).


 


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


 


“Default Settlement Method”
means, initially, Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000.


 


“Defaulted Amounts” means
any amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change Repurchase Price, principal
and Special Interest, if any) 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.


 


“Designated Financial Institution”
shall have the meaning specified in ‎Section 14.12(a).


 


“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. For the avoidance
of doubt, any alternative trading convention on the applicable exchange or market in respect of shares of the Common Stock under
a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.


 






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


 


“Ex-Dividend Date” means
the first date on which shares of the 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 Company 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. For the
avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect of shares of the Common
Stock under a separate ticker symbol or CUSIP number will not be considered “regular way” for this purpose.


 


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


 


“Exchange Election” shall
have the meaning specified in ‎Section 14.12(a).


 


“Exempted Fundamental Change”
shall have the meaning specified in ‎Section 15.02(f).


 


“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 Conversion”
means the “Form of Notice of Conversion” 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)            except
in connection with transactions described in clause (b) below, a “person” or “group” within the meaning
of Section 13(d) of the Exchange Act, other than the Company, its direct or indirect Wholly Owned Subsidiaries and the
employee benefit plans of the Company and its Wholly Owned Subsidiaries, has become and files a Schedule TO (or any successor schedule,
form or report) or any schedule, form or report under the Exchange Act that discloses that such person or group has become the
direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares of the Common
Stock representing more than 50% of the voting power of the Common Stock, unless such beneficial ownership arises solely as a result
of a revocable proxy delivered in response to a public proxy or consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act and is not also then reportable on Schedule 13D or Schedule 13G (or any successor schedule)
under the Exchange Act regardless of whether such a filing has actually been made; provided that no person or group shall
be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of
such “person” or “group” until such tendered securities are accepted for purchase or exchange under such
offer;


 






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(b)            the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than a change to par value,
or from par value to no par value, or 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 Company 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 Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s
direct or indirect Wholly Owned Subsidiaries; provided, however, that a transaction described in clause (A) or
clause (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction
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 (relative to each other) as such
ownership immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);


 


(c)            the
stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; 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 Global Select Market or the Nasdaq Global Market (or any of their respective successors);


 


provided,
however, that a transaction or transactions described in clause (b) above shall not constitute a Fundamental Change,
if at least 90% of the consideration received or to be received by the holders of Common Stock of the Company, excluding cash payments
for fractional shares and cash payments made in respect of dissenters’ appraisal rights, 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
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 convertible into such consideration, excluding cash payments for fractional shares and cash payments made in respect of
dissenters’ appraisal rights (subject to the provisions of ‎Section 14.02(a)). If any transaction in which the Common
Stock is replaced by the common stock or other Common Equity 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 Company in this definition shall instead be references to such other entity.


 






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“Fundamental Change Company Notice”
shall have the meaning specified in ‎Section 15.02(c).


 


“Fundamental Change Repurchase
Date” shall have the meaning specified in ‎Section 15.02(a).


 


“Fundamental Change Repurchase
Notice” shall have the meaning specified in ‎Section 15.02(b)(i).


 


“Fundamental Change Repurchase
Price” shall have the meaning specified in ‎Section 15.02(a).


 


The terms “given”, “mailed”,
 “notify” or “sent” with respect to any notice to be given to a Holder pursuant to this Indenture,
shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary
or its designee, including by electronic mail in accordance with accepted practices or procedures at the Depositary (in the case
of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on the Note
Register (in the case of a Physical Note), in each case, in accordance with ‎Section 17.03. Notice so “given”
shall be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.


 


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


 


“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.


 


“last date of original issuance”
means (a) with respect to any Notes issued pursuant to the Purchase Agreement, and any Notes issued in exchange therefor or
in substitution thereof, the date the Company first issues such Notes; and (b) with respect to any additional Notes issued
pursuant to ‎Section 2.10, and any Notes issued in exchange therefor or in substitution thereof, either (i) the later
of (x) the date such Notes are originally issued and (y) the last date any Notes are originally issued as part of the
same offering pursuant to the exercise of an option granted to the initial purchaser(s) of such Notes to purchase additional
Notes; or (ii) such other date as is specified in an Officer’s Certificate delivered to the Trustee before the original
issuance of such Notes.


 






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“Last Reported Sale Price”
of the Common Stock (or any other security for which a closing sale price must be determined) 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 (or such other security) is traded. If the Common Stock
(or such other security) 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 (or such other security)
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 (or such other security) 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 (or such other security) on the relevant date from each of at least
three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported
Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading
session hours.


 


“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 conversion (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.


 


“Maturity Date” means
March 1, 2028.


 


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


 


“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 Conversion”
shall have the meaning specified in ‎Section 14.02(b).


 


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


 






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“Observation Period”
with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs
prior to December 1, 2027, the 20 consecutive Trading Day period beginning on, and including, the second Trading Day immediately
succeeding such Conversion Date; (ii) with respect to any Called Notes, if the relevant Conversion Date occurs during the
related Redemption Period, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled Trading Day immediately
preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or after December 1,
2027, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled Trading Day immediately preceding the Maturity
Date.


 


“Offering Memorandum”
means the preliminary offering memorandum dated March 1, 2021, as supplemented by the related pricing term sheet dated March 1,
2021, relating to the offering and sale of the Notes.


 


“Officer” means, with
respect to the Company, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Operating Officer, the
Chief Legal Officer, the General Counsel, the Treasurer, the Secretary, any Executive or Senior Vice President or any Vice President
(whether or not designated by a number or numbers or word or words added before or after the title “Vice President”).


 


“Officer’s Certificate,”
when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by any Officer of
the Company. Each such certificate shall include the statements provided for in ‎Section 17.05 if and to the extent required
by the provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the
principal executive, financial or accounting officer of the Company.


 


“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 other counsel who
is reasonably acceptable to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set
forth therein, 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.


 


“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 shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent);


 






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(c)            Notes
that have been paid pursuant to the second paragraph of 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
converted pursuant to ‎Article 14 and required to be cancelled pursuant to ‎Section 2.08; and


 


(e)            Notes
redeemed pursuant to ‎Article 16.


 


“Partial Redemption Limitation”
shall have the meaning specified in ‎Section 16.02(d).


 


“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.


 


“Purchase Agreement”
means that certain Purchase Agreement, dated March 1, 2021, between the Company and J.P. Morgan Securities LLC, as representative
of the several initial purchasers named in Schedule 1 thereto.


 


“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 for or converted into any combination of cash, securities or other property, the date fixed for determination of holders
of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is
fixed by the Board of Directors, by statute, by contract or otherwise).


 


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


 


“Redemption Period” means,
with respect to any Optional Redemption, the period from, and including, the date on which the Company delivers a Notice of Redemption
for such Optional Redemption until the close of business on the Scheduled Trading Day immediately preceding the related Redemption
Date (or, if the Company defaults in the payment of the Redemption Price, until the close of business on the Scheduled Trading
Day immediately preceding the date on which the Redemption Price has been paid or duly provided for).


 






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“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 Special Interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Special Interest
Record Date but on or prior to the immediately succeeding Special Interest Payment Date, in which case any Special Interest accrued
to the Special Interest Payment Date will be paid by the Company to Holders of record of such Notes as of the close of business
on such Special Interest Record Date on, or at the Company’s election, before, such Special Interest Payment 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).


 


“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 Common Stock”
means Common Stock that is a Restricted Security.


 


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


 


“Restrictive Notes Legend”
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.


 


“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 conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed
to have been elected) by the Company.


 






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


 


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


 


“Significant Subsidiary”
means a Subsidiary of the Company that is a “significant subsidiary” as defined in Article 1, Rule 1-02(w) of
Regulation S-X promulgated by the Commission; provided that, in the case of a Subsidiary that meets the criteria of clause
(1)(iii) of the definition thereof but not clause (1)(i) or (1)(ii) thereof, such Subsidiary shall not be deemed
to be a Significant Subsidiary unless the Subsidiary’s income from continuing operations before income taxes exclusive of
amounts attributable to any non-controlling interests for the last completed fiscal year prior to the date of such determination
exceeds $25,000,000. For the avoidance of doubt, to the extent any such Subsidiary would not be deemed to be a “significant
subsidiary” under the relevant definition set forth in Article 1, Rule 1-02(w) of Regulation S-X (or any successor
rule) as in effect on the relevant date of determination, such Subsidiary shall not be deemed to be a Significant Subsidiary under
this Indenture irrespective of whether such Subsidiary has greater than $25,000,000 in income from continuing operations as described
in the immediately preceding sentence.


 


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


 


“Special Interest Payment Date”
means, if and to the extent that Special Interest is payable on the Notes, each March 1 and September 1 of each year,
beginning on September 1, 2021.


 


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


 


“Specified Dollar Amount”
means the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified in the Settlement
Notice (or deemed specified as provided in Section 14.02(a)(iii)) related to any converted 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 11.01(a).


 






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“Trading Day” means,
except for determining amounts due upon conversion, 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 New York Stock Exchange or, if the Common Stock (or such
other security) is not then listed on The New York Stock Exchange, 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 conversion 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 New York Stock Exchange or, if the Common Stock
is not then listed on The New York Stock Exchange, 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.


 


“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, on
any determination date, 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, 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 Conversion
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.


 






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“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).


 


“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%,”
the calculation of which shall exclude nominal amounts of the voting power of shares of Capital Stock or other interests in the
relevant Subsidiary not held by such person to the extent required to satisfy local minority interest requirements outside of the
United States.


 


Section 1.02. References to Interest.
Any reference to interest on, or in respect of, any Note in this Indenture shall be deemed to refer solely to Special Interest
(if, in such context, Special Interest is, was or would be payable pursuant to any of ‎Section 4.06(d), ‎Section 4.06(e) and
 ‎Section 6.03) and/or to any interest payable on any Defaulted Amounts as set forth in ‎Section 2.03(c).


 


Article 2

Issue, Description, Execution, Registration and Exchange of Notes


 


Section 2.01.
Designation and Amount. The Notes shall be designated as the “0% Convertible Senior Notes due 2028.” The aggregate
principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $250,000,000, 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 and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture
and a Note, the provisions of this Indenture shall control and govern to the extent of such conflict.


 


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 the 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.


 






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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, conversions, 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 any 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; No Regular Interest; Special 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 thereof. Each Note shall be dated the
date of its authentication and shall not bear regular interest, and the principal amount of the Notes shall not accrete. Special
Interest on the Notes, if any, 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 Special
Interest Record Date with respect to any Special Interest Payment Date shall be entitled to receive any Special Interest payable
on such Special 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 continental United States of America,
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, or cause the Paying Agent
to pay, any Special 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 such Holder or, upon written application by such a Holder to the Note Registrar not later than the relevant Special Interest
Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States if such Holder
has provided the Company, the Trustee or the Paying Agent (if other than the Trustee) with the requisite information necessary
to make such wire transfer, 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.


 






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(c)            Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date and shall not accrue interest
unless Special Interest was payable pursuant to this Indenture on the relevant payment date, in which case such Defaulted Amounts
shall accrue interest per annum at the then-applicable Special Interest rate borne by the Notes, subject to the enforceability
thereof under applicable law, from, and including, such relevant payment date, and such Defaulted Amounts together with any such
interest thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:


 


(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 in writing 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 written 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.


 


(iii)          The
Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Defaulted Amounts, or
with respect to the nature, extent, or calculation of the amount of Defaulted Amounts owed, or with respect to the method employed
in such calculation of the Defaulted Amounts.


 






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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 its Chief Executive Officer, President, Chief Financial Officer, Treasurer or Secretary.


 


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 (such Company Order to include the terms of the Notes) 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; provided that, subject to Section 17.05, the Trustee shall receive an Officer’s Certificate
and an Opinion of Counsel of the Company with respect to the issuance, authentication and delivery of such Notes.


 


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 signatory 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 shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other
office or agency of the Company designated pursuant to ‎Section 4.02, the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers
of Notes. Such 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.


 






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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.


 


All Notes presented or surrendered for registration
of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar (if
different than the Trustee) 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 (if different than the Trustee), 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 for other Notes or register a transfer of (i) any Notes surrendered
for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any
Notes, or a portion of any Note, surrendered for required repurchase upon a Fundamental Change (and not withdrawn) in accordance
with ‎Article 15 or (iii) 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. Each Global
Note shall bear the legend required on a Global Note set forth in Exhibit A hereto. 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 applicable procedures of the Depositary therefor.


 






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(c)           Every
Note that bears or is required under this ‎Section 2.05(c) to bear the Restrictive Notes Legend (together with any
Common Stock issued upon conversion 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 Restrictive Notes 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.


 


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 conversion
thereof, which shall bear the legend set forth in ‎Section 2.05(d), if applicable) shall bear a legend in substantially
the following form (the “Restrictive Notes Legend”) (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 CLASS A COMMON
STOCK, IF ANY, ISSUABLE UPON CONVERSION 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 SHAKE SHACK INC. (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 COMPANY OR ANY SUBSIDIARY THEREOF, OR


 






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(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 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 Notes
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 Notes Legend specified
in this Section 2.05(c) and shall not be assigned a restricted CUSIP number. In addition, the Company may effect the
removal of the Restrictive Notes Legend upon the Company’s delivery to the Trustee of written notice to such effect, whereupon
the Restrictive Notes Legend set forth above and affixed on any Note shall be deemed, in accordance with the terms of the certificate
representing such Note, to be removed therefrom without further action by the Company, the Trustee, the Holder(s) thereof
or any other Person; at such time, such Note shall be deemed to be assigned an unrestricted CUSIP number as provided in the certificate
representing such Note, it being understood that the Depositary of any Global Note may require a mandatory exchange or other process
to cause such Global Note to be identified by an unrestricted CUSIP number in the facilities of such Depositary. The Company shall
promptly notify the Trustee in writing 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 conversion of the Notes has been declared effective
under the Securities Act.


 






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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.


 


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, subject to the Depositary’s applicable procedures, 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 in writing.
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 converted, canceled, repurchased upon a Fundamental Change, 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, converted,
canceled, repurchased upon a Fundamental Change, 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.


 






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None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability for any act or omission of the Depositary or for
the payment of amounts to owners of beneficial interest in a Global Note, for any aspect of the records relating to or payments
made on account of those interests by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary
relating to those interests.


 


(d)            Until
the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion 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 conversion of a Note 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 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 SHAKE SHACK INC. (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 OF THE SERIES OF NOTES UPON THE CONVERSION 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:


 


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


 






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(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 TRANSFER AGENT FOR THE COMPANY’S CLASS A 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).


 


The Trustee shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants
or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof.


 


(e)            Any
Note or Restricted Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by the Company or
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 the Company or 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).


 






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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, claim, 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 Trustee,
the Note Registrar (if different than the Trustee), 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 upon a Fundamental Change or is about to be converted 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 convert or authorize the conversion 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 conversion 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, claim, 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 Conversion 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,
conversion 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,
conversion or repurchase of negotiable instruments or other securities without their surrender.


 






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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, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment at maturity, repurchase upon
a Fundamental Change, redemption, registration of transfer or exchange or conversion (other than any Notes exchanged pursuant to
Section 14.12), if surrendered to the Company or any of its agents or Subsidiaries, to be surrendered to the Trustee for cancellation.
All Notes delivered to the Trustee shall be canceled promptly by it in accordance with its customary procedures. 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 evidence 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 the Trustee
shall have no liability for any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and,
provided, further, 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, or notice to, 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, Special Interest, if any, accrued prior to the issue date of such additional Notes
and, if applicable, restrictions on transfer in respect 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 or securities
law purposes, such additional Notes shall have one or more separate CUSIP numbers. 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 may, to the extent permitted by law, and directly or indirectly
(regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by
the Company or its Subsidiaries or through a privately negotiated transaction or public tender or exchange offer or through counterparties
to private agreements, including by cash-settled swaps or other derivatives, in each case, without the consent of or notice to
the Holders of the Notes. The Company may, at its option and to the extent permitted by applicable law, reissue, resell or surrender
to the Trustee for cancellation any Notes that it may repurchase, in the case of a reissuance or resale, so long as such Notes
do not constitute “restricted securities” (as defined under Rule 144) upon such reissuance or resale; provided
that if any such reissued or resold Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax
or securities law purposes, such reissued or resold Notes shall have one or more separate CUSIP numbers. Any Notes that the Company
may repurchase shall be considered outstanding for all purposes under this Indenture (other than, at any time when such Notes are
owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof, as set forth in Section 8.04)
unless and until such time as the Company surrenders them to the Trustee for cancellation and, upon receipt of a Company Order,
the Trustee shall cancel all Notes so surrendered.


 


Article 3

Satisfaction and Discharge


 


Section 3.01. Satisfaction and Discharge.
(a) This Indenture and the Notes shall cease to be of further effect when (i) all Notes theretofore authenticated and
delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted
as provided in ‎Section 2.06 and (y) Notes for whose payment money has heretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in ‎Section 4.04(d))
have been delivered to the Trustee for cancellation; or (ii) the Company 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 conversion or otherwise, cash or cash and/or shares of Common Stock, solely to satisfy the Company’s
Conversion Obligation, sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture or
the Notes by the Company; and (b) the Trustee upon request of the Company contained in an Officer’s Certificate and
at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture and
the Notes, when 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 and the Notes have
been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee
under ‎Section 7.06 shall survive.


 






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Article 4

Particular Covenants of the Company


 


Section 4.01. Payment of Principal
and Special 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 any accrued and unpaid Special Interest on, each of the
Notes at the places, at the respective times and in the manner provided herein and in the Notes.


 


Any applicable withholding taxes (including
backup withholding) may be withheld from payments of Special Interest, if any, and payments upon conversion, repurchase or maturity
of the Notes, or if any withholding taxes (including backup withholding) are paid on behalf of a Holder or beneficial owner, those
withholding taxes may be withheld from payments of cash or Common Stock, if any, payable on the Notes (or, in some circumstances,
any payments on the Common Stock) or sales proceeds received by, or other funds or assets of, the Holder or beneficial owner.


 


Section 4.02. Maintenance of Office
or Agency. The Company will maintain in the continental United States of America an office or agency where the Notes may be
surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”)
or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company 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 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 continental United States of America.


 


The Company may also from time to time designate
as co-Note Registrars 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 of its obligation to maintain an office or agency in the continental United States of America 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 “Paying Agent” and “Conversion 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 Conversion Agent and the Corporate Trust Office as the office or
agency in the continental United States of America where Notes may be surrendered for registration of transfer or exchange or for
presentation for payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served; provided that the Corporate Trust Office shall not be a place for service of legal
process for the Company.


 






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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:


 


(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 any accrued and unpaid Special Interest or interest payable pursuant to ‎Section 2.03(c) on,
the Notes in trust for the benefit of the Holders;


 


(ii)           that
it will give the Trustee prompt written 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 any accrued and unpaid Special 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 any accrued
and unpaid Special 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 any such accrued and unpaid Special Interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of any failure 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 any accrued and unpaid Special 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 any such accrued and unpaid Special 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 any accrued and unpaid Special 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)           Subject
to applicable escheatment laws, 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, any accrued and unpaid Special Interest or interest payable pursuant to ‎Section 2.03(c) on
and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if applicable), Special Interest or interest payable pursuant to
 ‎Section 2.03(c), if any, or consideration due upon conversion 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 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.


 


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


 


Section 4.06. Rule 144A Information
Requirement and Annual Reports. (a) At any time the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion 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 conversion 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.


 


(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
annual or quarterly reports (on Form 10-K or Form 10-Q or any respective successor form) that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents
or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission, and giving effect
to any grace period provided by Rule 12b-25 under the Exchange Act (or any successor thereto)). Any such document or report
that the Company files with the Commission via the Commission’s EDGAR system (or any successor 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 (or such successor), it being understood that the Trustee shall not be responsible for determining whether such filings
have been made.


 






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(c)           Delivery
of the reports, information and documents described in subsection ‎(b) above to the Trustee is for informational purposes
only, and the information 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 compliance with any of its covenants
hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).


 


(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 Company 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 Affiliates or Holders that were the Company’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 Special Interest on the Notes. Such Special 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 Affiliates (or Holders that were the Company’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 Company 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 Company furnishes to the Commission pursuant to Section 13
or 15(d) of the Exchange Act. For purposes of this Section 4.06(d), the phrase “restrictions pursuant to U.S. securities
laws or the terms of this Indenture or the Notes” shall not include, for the avoidance of doubt, the assignment of a restricted
CUSIP number or the existence of the Restrictive Notes Legend on Notes in compliance with Section 2.05(c), in either case,
during the six-month period described in this Section 4.06(d).


 


(e)            If,
and for so long as, the Restrictive Notes Legend on the Notes specified in Section 2.05(c) has not been removed, the
Notes are assigned a restricted CUSIP number or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders
other than the Company’s Affiliates or Holders that were the Company’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 380th day after the last date of original issuance of the Notes, the Company shall pay Special Interest on the Notes at a rate
equal to 0.50% per annum of the principal amount of Notes outstanding until the Restrictive Notes Legend on the Notes has been
removed in accordance with ‎Section 2.05(c), the Notes are assigned an unrestricted CUSIP number and the Notes are freely
tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’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; provided, however, that no Special Interest shall accrue or be owed pursuant to
this Section 4.06(e) until the fifteenth Business Day following written notification to the Company by the Trustee (at
the direction of the Holders) or any Holder or beneficial owner of the Notes requesting that the Company comply with its obligations
described in this Section 4.06(e) (which notice may be given at any time after the 330th day after the last date of original
issuance of the Notes), it being understood and agreed that in no event shall Special Interest accrue or be owed pursuant to this
Section 4.06(e) for any period prior to the 380th day after the last date of original issuance of the Notes.


 






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(f)            Special
Interest will be payable in arrears on each Special Interest Payment Date following accrual as set forth in Section 2.03(b).


 


(g)           Subject
to the immediately succeeding sentence, the Special 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 Special Interest that may be payable as a result
of the Company’s election pursuant to ‎Section 6.03. However, in no event shall Special Interest payable for the
Company’s failure to comply with its obligations to timely file any document or report that the Company 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), as set forth in Section 4.06(d), together with any Special
Interest that may accrue at the Company’s election as a result of the Company’s failure to comply with its reporting
obligations pursuant to Section 6.03, accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless
of the number of events or circumstances giving rise to the requirement to pay such Special Interest.


 


(h)           If
Special 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 Special Interest
that is payable and (ii) the date on which such Special Interest is payable. Unless and until a Responsible Officer of the
Trustee receives at the Corporate Trust Office such Officer’s Certificate, the Trustee may conclusively assume without inquiry
that no such Special Interest is payable. If the Company has paid Special 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. The Company 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 from paying all or any portion of the principal of or any 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 the Company (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
Company (beginning with the fiscal year ending on December 29, 2021) an Officer’s Certificate stating whether the signers
thereof have knowledge of any Event of Default that occurred during the previous year and, if so, specifying each such Event of
Default and the nature thereof.


 






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In addition, the Company shall deliver to
the Trustee, within 30 days after the Company obtains knowledge of the occurrence of any Event of Default or Default, an Officer’s
Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company is taking
or proposing to take in respect thereof; provided that the Company is not required to deliver such notice if such Event
of Default or Default has been cured or is no longer continuing.


 


Section 4.09. Further Instruments
and Acts. Upon request of the Trustee, the Company 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.


 


Article 5

Lists of Holders and Reports by the Company and the Trustee


 


Section 5.01. Lists of Holders.
The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 15
days after each February 15 and August 15 in each year beginning with August 15, 2021, and at such other times as
the Trustee may request in writing, within 30 days after receipt by the Company of any such request (or such lesser time as the
Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such
form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days (or such
other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information is
furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.


 


Section 5.02. Preservation and Disclosure
of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and
addresses of the Holders contained in the most recent list furnished to it as provided in ‎Section 5.01 or maintained
by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may dispose of any list furnished to it as provided
in ‎Section 5.01 upon receipt of a new list so furnished.


 


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 Special 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;


 






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(c)            failure
by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s
conversion right and such failure continues for three Business Days;


 


(d)            failure
by the Company to give (i) a Fundamental Change Company Notice in accordance with ‎Section 15.02(c) or notice
of a Make-Whole Fundamental Change in accordance with ‎Section 14.03(b), in either case when due and such failure continues
for two Business Days, or (ii) notice of a specified corporate transaction in accordance with Section 14.01(b)(ii) or
14.01(b)(iii) when due and such failure continues for one Business Day;


 


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


 


(f)            failure
by the Company 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 or any Significant Subsidiary of the Company 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 $50,000,000
(or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness
now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable prior
to its stated maturity date or (ii) constituting a failure to pay the principal of any such debt when due and payable (after
the expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration of acceleration
or otherwise, and in the cases of clauses (i) and (ii), such acceleration shall not have been rescinded or annulled or such
failure to pay or default shall not have been cured or waived, or such indebtedness is not paid or discharged, as the case may
be, within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least
25% in aggregate principal amount of Notes then outstanding in accordance with this Indenture;


 


(h)           the
Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to the Company 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 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; or


 


(i)            an
involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to the Company 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 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.


 






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Section 6.02. Acceleration; Rescission
and Annulment. If one or more Events of Default shall have occurred and be continuing, then, and in each and every such case
(other than an Event of Default specified in ‎Section 6.01(h) or ‎Section 6.01(i) with respect to the
Company), 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 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 Special Interest, if any, on, all the outstanding 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(h) or ‎Section 6.01(i) with respect to the Company occurs and is continuing, 100%
of the principal of, and accrued and unpaid Special Interest, if any, on, all Notes shall become and shall automatically be immediately
due and payable.


 


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,
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 Special
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
a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company 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 Special Interest,
if any, 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 conversion of the Notes.


 






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Section 6.03. Special 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 Company’s failure to comply with its obligations as set forth in ‎Section 4.06(b) shall,
for the first 365 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Special Interest
on the Notes at a rate equal to (x) 0.25% per annum of the principal amount of the Notes outstanding for each day during the
first 180 days after the occurrence of such Event of Default and (y) 0.50% per annum of the principal amount of the Notes
outstanding from the 181st day to, and including, the 365th day following the occurrence of such Event of Default, as long as such
Event of Default is continuing. Subject to the last paragraph of this Section 6.03, Special Interest payable pursuant to this
 ‎Section 6.03 shall be in addition to, not in lieu of, any Special Interest payable pursuant to ‎Section 4.06(d) or
 ‎Section 4.06(e). If the Company so elects, such Special Interest shall be payable as set forth in Section 2.03(b).
On the 366th day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with its
obligations as set forth in ‎‎Section 4.06(b) is not cured or waived prior to such 366th 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 in the event of the occurrence of any Event of Default other than the Company’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 Special 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 Special Interest when due, the Notes shall be immediately subject to acceleration as provided in ‎Section 6.02.


 


In order to elect to pay Special Interest
as the sole remedy during the first 365 days after the occurrence of any Event of Default relating to the Company’s failure
to comply with its obligations as set forth in ‎‎Section 4.06(b) in accordance with the immediately preceding
paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent (if other than the Trustee) in writing
of such election prior to the beginning of such 365-day period. Upon the failure to timely give such notice, the Notes shall be
immediately subject to acceleration as provided in ‎Section 6.02.


 


In no event shall Special Interest payable
at the Company’s election for failure to comply with its obligations as set forth in Section 4.06(b) as set forth
in this Section 6.03, together with any Special Interest that may accrue as a result of the Company’s failure to timely
file any document or report that the Company 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),
pursuant to Section 4.06(d), accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number
of events or circumstances giving rise to the requirement to pay such Special Interest.


 


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 and be continuing, 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 Special Interest, if any (with no interest
accruing on any overdue principal or Special Interest unless Special Interest was payable pursuant to this Indenture on the required
payment date, in which case such overdue amounts shall accrue interest per annum at the then-applicable Special Interest rate borne
by the Notes, subject to the enforceability thereof under applicable law, from, and including, such required payment date) 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 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 or any other obligor upon the Notes,
wherever situated.


 






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In the event there shall be pending proceedings
for the bankruptcy or for the reorganization of the Company 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 or such other obligor, the property of the
Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor
upon the Notes, or to the creditors or property of the Company 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 Special 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 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 expenses, 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.


 


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, may be enforced by the Trustee without the possession of any of the Notes, 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.


 






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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 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 Holders and the Trustee shall continue as though no such proceeding had been
instituted.


 


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 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 in all of its capacities under this Indenture;


 


Second,
in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of any Special Interest
on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such Special Interest
and cash due upon conversion, as the case may be, with interest (to the extent that any such interest is payable on such Notes
and has been collected by the Trustee) upon such overdue payments at the rate of Special Interest then payable on such Notes, if
any, 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 conversion) then owing and unpaid upon the Notes for principal and Special Interest, if any, with interest
(to the extent that any such interest is payable on such Notes and has been collected by the Trustee) on the overdue principal
and Special Interest, if any, at the rate of Special Interest then payable on such Notes, if any, 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 conversion) and such Special
Interest, if any, and such interest on overdue principal and Special Interest, if any, without preference or priority of principal
over any such interest, or of any such 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 conversion) and any accrued and unpaid interest; and


 


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


 






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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 any Special Interest when due, or the right to receive payment or delivery of the consideration due
upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture or the
Notes 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:


 


(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 reasonably satisfactory to it against any loss, claim, 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 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 (it being understood
that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial
to 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.


 






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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 Special Interest, if any, on, and (z) the consideration due upon conversion 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.


 


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 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; 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 and 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 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 any continuing defaults relating to (i) a
default in the payment of accrued and unpaid Special 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 conversion 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 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 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.


 






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Section 6.10. Notice of Defaults.
The Trustee shall, within 90 days after obtaining knowledge of the occurrence and continuance of a Default, deliver to all Holders
notice of all Defaults actually 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 any accrued and unpaid Special Interest on, any
of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in
withholding such notice if and so long as it determines that the withholding of such notice is in the interests of the Holders.


 


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 reasonable 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
any accrued and unpaid Special Interest or interest payable pursuant to ‎Section 2.03(c) 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 convert any Note, or receive the consideration
due upon conversion, 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 reasonably satisfactory
to it against any loss, claim, liability or expense that might be incurred by it in compliance with such request or direction.


 






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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:


 


(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, as to the truth of the statements
and the correctness of the opinions expressed therein, conclusively rely 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;


 






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(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 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, fees, taxes or other charges 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


 


(h)            in
the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion 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, Conversion 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 or refraining from 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 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 Assistant Secretary of the Company;


 


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


 






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(d)            the
Trustee may consult with counsel of its selection, 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;


 


(e)            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, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason
of such inquiry or investigation;


 


(f)             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;


 


(g)            the
permissive rights of the Trustee enumerated herein shall not be construed as duties;


 


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


 


(i)             neither
the Trustee nor any of its directors, officers, employees, agents, or affiliates shall be responsible for nor have any duty to
monitor the performance or any action of the Company, or any of their respective directors, members, officers, agents, affiliates,
or employees, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee shall
not be responsible for any inaccuracy in the information obtained from the Company or for any inaccuracy or omission in the records
which may result from such information or any failure by the Trustee to perform its duties or set forth herein as a result of any
inaccuracy or incompleteness.


 


In no event shall the Trustee be liable
for any special, indirect, punitive, or 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. The
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a
Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default
or Event of Default shall have been given to the Trustee by the Company or by any Holder.


 






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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,
Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion
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, Conversion 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 receive such 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 previously and 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 reasonable 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 or willful misconduct.
The Company also covenants to indemnify the Trustee or any predecessor 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 or willful misconduct 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 and the enforcement
of this Indenture (including this ‎Section 7.06), 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, and, for the avoidance
of doubt, such lien shall not be extended in a manner that would conflict with the Company’s obligations to its other creditors.
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(h) or ‎Section 6.01(i) 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.


 


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 promptly 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 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
45 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, at the expense of the Company, 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.


 






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(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 such 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 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.


 


(c)            The
Holders of 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(a) 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 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.


 






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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.


 


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 in the name of any predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.


 






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Section 7.12. Trustee’s Application
for Instructions from the Company. Any application by the Trustee for written instructions from the Company (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 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 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.


 


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 or writing 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.


 






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Section 8.03. Who Are Deemed Absolute
Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion 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) any accrued
and unpaid Special Interest or interest payable pursuant to ‎Section 2.03(c) on such Note, for conversion of such
Note and for all other purposes under this Indenture; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion
Agent nor any Note Registrar shall be affected nor incur any liability by any notice to the contrary. The sole registered holder
of a Global Note shall be the Depositary or its nominee. 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, by any Subsidiary thereof
or by any Affiliate of the Company 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 actually 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, a Subsidiary thereof or an Affiliate of the Company 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.


 


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.


 






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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 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


 


(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 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.


 






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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 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.


 


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 a majority in aggregate principal amount of the outstanding 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 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.


 






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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.


 


Article 10

Supplemental Indentures


 


Section 10.01. Supplemental Indentures
Without Consent of Holders. The Company 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 of the obligations of the Company 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 for the benefit of the Holders or surrender any right or power conferred
upon the Company;


 


(f)             to
make any change that does not adversely affect the rights of any Holder as determined by the Company in good faith;


 


(g)            in
connection with any Share Exchange Event, to provide that the Notes are convertible 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;


 


(h)            to
conform the provisions of this Indenture or the Notes to the “Description of notes” section of the Offering Memorandum
as evidenced in an Officer’s Certificate;


 


(i)             to
comply with the rules of any applicable Depositary, including The Depository Trust Company, so long as such amendment does
not adversely affect the rights of any Holder in any material respect;


 


(j)             to
appoint a successor trustee with respect to the Notes;


 


(k)            to
increase the Conversion Rate as provided in this Indenture;


 






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(l)             to
provide for the acceptance of appointment by a successor Trustee, security registrar, Paying Agent, Bid Solicitation Agent or Conversion
Agent to facilitate the administration of the trusts under this Indenture by more than one trustee; or


 


(m)           to
irrevocably elect a Settlement Method or a Specified Dollar Amount, or eliminate the Company’s right to elect a Settlement
Method; provided, however, that no such election or elimination shall affect any Settlement Method theretofore elected
(or deemed to be elected) with respect to any Note pursuant to the provisions of ‎‎Article 14.


 


Upon the written request of the Company,
the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture and 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 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 and including,
without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company
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,
the Notes 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:


 


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


 


(b)            reduce
the rate of or extend the stated time for payment of any Special Interest or interest payable pursuant to ‎Section 2.03(c) on
any Note;


 


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


 


(d)            except
as required by this Indenture, make any change that adversely affects the conversion 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 obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions
or otherwise;


 






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(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


 


(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.


 


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 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.


 


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, indemnities, privileges and immunities under this Indenture of the Trustee, the Company 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, 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; such
Opinion of Counsel to include a customary legal opinion stating that such supplemental indenture is the valid and binding obligation
of the Company, subject to customary exceptions and qualifications. The Trustee shall have no responsibility for determining whether
any amendment or supplemental indenture will or may have an adverse effect on any Holder.


 






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Article 11

Consolidation, Merger, Sale, Conveyance and Lease


 


Section 11.01. Company May Consolidate,
Etc. on Certain Terms. Subject to the provisions of ‎Section 11.02, the Company shall not consolidate with, merge
with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company
and its Subsidiaries, taken as a whole, to another Person (other than any such sale, conveyance, transfer or lease to one or more
of the Company’s direct or indirect Wholly Owned Subsidiaries) unless:


 


(a)            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


 


(b)            immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this 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 Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute
all or substantially all of the properties and assets of the Company 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 Company to another Person.


 


Section 11.02. Successor Corporation
To Be Substituted. 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 any accrued and unpaid Special Interest on all of the Notes, the due and
punctual delivery or payment, as the case may be, of any consideration due upon conversion 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 consolidated properties
and assets of the Company and its Subsidiaries, taken as a whole, shall be substituted for the Company, with the same effect as
if it had been named herein as the party of the first part, and may thereafter exercise every right and power of the Company under
this Indenture. 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. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease),
upon compliance with this ‎Article 11 the Person named as the “Company” in the first paragraph of this Indenture
(or any successor that shall thereafter have become such in the manner prescribed in this ‎Article 11) may be dissolved,
wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities
as obligor and maker of the Notes and from its obligations under this Indenture and the Notes. In case of any such consolidation,
merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.


 






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Article 12

Immunity of Incorporators, Stockholders, Officers and Directors


 


Section 12.01. Indenture and Notes
Solely Corporate Obligations. No recourse for the payment of the principal of or any accrued and unpaid Special Interest on
any Note, 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 in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of any
indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary,
as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any
successor corporation, 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.


 


Article 13

[Intentionally Omitted]


 


Article 14

Conversion of Notes


 


Section 14.01. Conversion Privilege.


 


(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 convert all or any portion (if the portion to be converted 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 December 1, 2027 under the circumstances and during the periods
set forth in Section 14.01(b), and (ii) regardless of the conditions described in ‎Section 14.01(b), on or after
December 1, 2027 and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity
Date, in each case, at an initial conversion rate of 5.8679 shares of Common Stock (subject to adjustment as provided in this ‎Article 14,
the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement
provisions of ‎Section 14.02, the “Conversion Obligation”).


 






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(b)


 


(i)             Prior
to the close of business on the Business Day immediately preceding December 1, 2027, a Holder may surrender all or any portion
of its Notes for conversion at any time during the five Business Day period immediately after any ten 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 (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 Conversion Rate on
each such Trading Day. The Trading Prices 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 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 or Holders of at
least $2,000,000 aggregate principal amount of Notes 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 Conversion 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 Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company
does not, when the Company is required to, 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 gives such instruction to the Bid Solicitation
Agent 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 on any date shall be deemed to be less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the Conversion 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 Conversion Agent (if other than the Trustee)
in writing. Any such determination shall be conclusive absent manifest error. 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 Conversion Rate for such date, the Company shall so notify the Holders,
the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation
Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in
this Indenture) again unless a new Holder request is made as provided in this subsection (b)(i). For the avoidance of doubt, neither
the Trustee nor the Conversion Agent (if other than the Trustee) shall have any duty to determine or verify the determination of
whether the Trading Price condition has been met.


 






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(ii)            If,
prior to the close of business on the Business Day immediately preceding December 1, 2027, the Company elects to:


 


(A)          distribute
to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder
rights plan prior to the separation of such rights from the Common Stock) entitling them, for a period of not more than 60 calendar
days after the announcement date of such distribution, 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 distribution; or


 


(B)           distribute
to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities
of the Company (other than in connection with a stockholder rights plan prior to separation of such rights from the Common Stock),
which distribution has a per share value, as reasonably determined by the Company in good faith, 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 Conversion Agent (if other than the Trustee) in writing at least 26 Scheduled Trading
Days prior to the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant
to a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering
event has occurred or will occur); provided, however, that if the Company is then otherwise permitted to settle conversions
of Notes by Physical Settlement (and, for the avoidance of doubt, has not irrevocably elected another Settlement Method for conversion
of Notes), then the Company may instead elect to provide such notice at least five Scheduled Trading Days prior to such Ex-Dividend
Date, in which case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the
period on or after the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company
announces that such issuance or distribution will not take place) by Physical Settlement, and the Company shall describe the same
in such notice. Once the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at
any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for
such distribution and (2) the Company’s announcement that such distribution will not take place, in each case, even
if the Notes are not otherwise convertible at such time; provided that Holders may not convert their Notes pursuant to this
subsection (b)(ii) if they participate, 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 clause (A) or (B) of this subsection (b)(ii) without
having to convert their Notes as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by
the principal amount (expressed in thousands) of Notes held by such Holder.


 






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(iii)           If
(A) 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 December 1, 2027, regardless of whether a Holder has the right to require
the Company to repurchase the Notes pursuant to ‎Section 15.02, or (B) if the Company is a party to a Share Exchange
Event (other than a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction of organization
that (x) does not constitute a Fundamental Change or a Make-Whole Fundamental Change and (y) results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such
common stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately
preceding December 1, 2027, (each such Fundamental Change, Make-Whole Fundamental Change or Share Exchange Event, a “Corporate
Event”), all or any portion of a Holder’s Notes may be surrendered for conversion at any time from or after the
effective date of such Corporate Event until the earlier of (x) 35 Trading Days after the effective date of the Corporate
Event (or, if the Company gives notice after the effective date of such Corporate Event, until 35 Trading Days after the date the
Company gives notice of such Corporate Event) or, if such Corporate Event also constitutes a Fundamental Change (other than an
Exempted Fundamental Change), until the close of business on the Business Day immediately preceding the related Fundamental Change
Repurchase Date and (y) the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date.
The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing as promptly as practicable
following the effective date of such Corporate Event, but in no event later than one Business Day after the effective date of such
Corporate Event.


 


(iv)          Prior
to the close of business on the Business Day immediately preceding December 1, 2027, a Holder may surrender all or any portion
of its Notes for conversion at any time during any fiscal quarter of the Company commencing after the fiscal quarter ending on
June 30, 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 Conversion Price on each applicable Trading
Day.


 






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(v)           If
the Company calls any Notes for redemption pursuant to ‎Article 16, then a Holder may surrender all or any portion of
its Called Notes for conversion at any time prior to the close of business on the Scheduled Trading Day immediately preceding the
Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right to convert such
Called Notes on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults in
the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until
the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or
duly provided for. If the Company elects to redeem fewer than all of the outstanding Notes for redemption pursuant to ‎Article 16,
and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior
to the close of business on the 24th Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted
by ‎‎Section 16.02(a), the Company delivers a Notice of Redemption not less than 15 nor more than 60 calendar days
prior to the related Redemption Date, then prior to close of business on the 14th calendar day immediately before the relevant
Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then
such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, at any time before
the close of business on the Scheduled Trading Day immediately preceding such Redemption Date, unless the Company defaults in the
payment of the Redemption Price, in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial
interest, as applicable, until the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption
Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for redemption, and such
Note or beneficial interest will be deemed called for redemption solely for the purposes of such conversion (“Deemed Redemption”).
If a Holder elects to convert Called Notes during the related Redemption Period, the Company will, under certain circumstances,
increase the Conversion Rate for such Called Notes pursuant to ‎‎Section 14.03. Accordingly, if the Company elects
to redeem fewer than all of the outstanding Notes pursuant to ‎‎Article 16, Holders of the Notes that are not Called
Notes will not be entitled to convert such Notes pursuant to this ‎‎Section 14.01(b)(v) and will not be entitled
to an increase in the Conversion Rate on account of the Notice of Redemption for conversions of such Notes during the related Redemption
Period, even if such Notes are otherwise convertible pursuant to any other provision of this ‎‎Section 14.01(b).


 






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Section 14.02. Conversion Procedure;
Settlement Upon Conversion.


 


(a)            Subject
to this ‎Section 14.02, ‎Section 14.03(b) and ‎Section 14.07(a), upon conversion of any Note,
the Company shall satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in
respect of each $1,000 principal amount of Notes being converted, 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.


 


(i)            All
conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions
for which the relevant Conversion Date occurs on or after December 1, 2027, shall be settled using the same Settlement Method.


 


(ii)            Except
for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any
conversions for which the relevant Conversion Date occurs on or after December 1, 2027, and except to the extent the Company
has irrevocably elected Physical Settlement pursuant to ‎Section 14.01(b)(ii) in a notice as described in such Section,
the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall not have
any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.


 


(iii)            If,
in respect of any Conversion Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the
related Redemption Period, or any conversions for which the relevant Conversion Date occurs on or after December 1, 2027 or
for which the Company has irrevocably elected Physical Settlement pursuant to ‎‎Section 14.01(b)(ii) in a notice
as described in such Section), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant
Settlement Method in respect of such Conversion Date (or such period, as the case may be), the Company, through and upon a written
request to 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 Conversion Date (or, in the case of (A) any conversions of Called Notes for which the
relevant Conversion Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions
of Notes for which the relevant Conversion Date occurs on or after December 1, 2027, no later than December 1, 2027 or
(C) any conversions for which the Company has irrevocably elected Physical Settlement pursuant to ‎‎‎Section 14.01(b)(ii),
in a notice as described in such Section). 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 a Settlement Method with respect to any
conversion on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement
Method with respect to such conversion. 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 (or is deemed to have elected Combination
Settlement) in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount
of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed
to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable
a Specified Dollar Amount shall not constitute a Default under this Indenture.


 



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By written notice to Holders,
the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement
Method prior to December 1, 2027. By written notice to all Holders, the Company may, prior to December 1, 2027, at its
option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the
Company is then permitted to elect, 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 the Specified Dollar Amount per $1,000 principal amount of Notes at or
above a specific amount set forth in such election notice. If the Company changes the Default Settlement Method or the Company
irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set the
Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company will, after the date of
such change or election, as the case may be, inform Holders converting their Notes through the Trustee of such Specified Dollar
Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately preceding
paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth
in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000
per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all
conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided, however, that
no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any
Note. For the avoidance of doubt, such an irrevocable election, if made by the Company, will be effective without the need to amend
this Indenture or the Notes, including pursuant to ‎‎‎Section 10.01(m). However, the Company may nonetheless choose
to execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably
fixes the Settlement Method pursuant to this paragraph, then, concurrently with providing written notice to Holders of such change
or election, the Company shall either post the Default Settlement Method or fixed Settlement Method, as the case may be, on its
website or disclose the same in a current report on Form 8-K (or any successor form) that is filed with the Commission.


 


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


 


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


 






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(B)           if
the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay
to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum
of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and


 


(C)           if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay or deliver, as the case may be, to the converting Holder in respect of each $1,000 principal
amount of Notes being converted, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive
Trading Days during the related Observation Period.


 


(v)           The
Daily Settlement Amounts (if applicable) and the Daily Conversion 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 (if applicable),
the Daily Conversion Values (if applicable) and the amount of cash payable in lieu of delivering any fractional share of Common
Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts
(if applicable), the Daily Conversion Values (if applicable) and the amount of cash payable in lieu of delivering any fractional
shares of Common Stock. The Trustee and the Conversion 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 convert a Note as set forth above, such Holder
shall (i) in the case of a Global Note, comply with the applicable procedures of the Depositary in effect at that time and,
if required, pay funds equal to any Special Interest payable on the next Special 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 Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile,
PDF or other electronic transmission thereof) (a notice pursuant to the applicable procedure of the Depositary or a notice as set
forth in the Form of Notice of Conversion, a “Notice of Conversion”) at the office of the Conversion Agent
and state in writing therein the principal amount of Notes to be converted 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 Conversion
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 Conversion Agent, (3) if required, furnish appropriate endorsements
and transfer documents and (4) if required, pay funds equal to any Special Interest payable on the next Special Interest Payment
Date to which such Holder is not entitled as set forth in ‎Section 14.02(h). The Trustee (and if different, the Conversion
Agent) shall notify the Company of any conversion pursuant to this ‎Article 14 on the Conversion Date for such conversion.
No Notes may be surrendered for conversion 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 15.03.


 






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If more than one Note shall be surrendered
for conversion at one time by the same Holder, the Conversion 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 converted immediately prior to the close of business on the date (the “Conversion 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 Conversion
Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement
(provided that, with respect to any Conversion Date following February 15, 2028 where Physical Settlement applies to
the related conversion, the Company shall settle any such conversion 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 converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion Agent
or to such 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 Conversion Obligation.


 


(d)           In
case any Note shall be surrendered for partial conversion, 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 unconverted portion of the surrendered Note, without payment of any service charge by the converting
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 conversion being different from the name of the Holder of the old Notes
surrendered for such conversion.


 


(e)            If
a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of any shares of Common Stock upon conversion, 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 Conversion 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
conversion of any Note as provided in this Article 14.


 


(g)           Upon
the conversion 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 conversion of Notes effected through any Conversion Agent other than the Trustee.


 






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(h)           Upon
conversion, a Holder shall not receive any separate cash payment for accrued and unpaid Special Interest, if any, except as set
forth below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation
to pay the principal amount of the Note and accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion
Date. As a result, accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed
to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and
shares of Common Stock, any accrued and unpaid Special Interest will be deemed to be paid first out of the cash paid upon such
conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Special Interest Record Date
for the payment of Special Interest, Holders of such Notes as of the close of business on such Special Interest Record Date will
receive the full amount of any Special Interest payable on such Notes on the corresponding Special Interest Payment Date notwithstanding
the conversion. Notes surrendered for conversion during the period from the close of business on any Special Interest Record Date
to the open of business on the immediately following Special Interest Payment Date must be accompanied by funds equal to the amount
of any Special Interest payable on the Notes so converted; provided that no such payment shall be required (1) for
conversions following February 15, 2028, if Special Interest is payable on the Maturity Date; (2) if the Company has
specified a Redemption Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following
the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that
is after a Special Interest Record Date and on or prior to the Business Day immediately following the corresponding Special Interest
Payment Date; or (4) to the extent of any overdue Special Interest, if any overdue Special Interest exists at the time of
conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on February 15, 2028 (if
and to the extent Special Interest is payable on the Maturity Date) shall receive the full Special Interest payment due on the
Maturity Date in cash regardless of whether their Notes have been converted following February 15, 2028.





 


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


 


(j)            The
Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of
delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion 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 conversion, if the Company has elected (or is deemed to have
elected) Combination Settlement, the full number of shares that shall be issued upon conversion 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.


 






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Section 14.03. Increased Conversion
Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Notice of Redemption.





 


(a)            If
(i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert
its Notes in connection with such Make-Whole Fundamental Change or (ii) the Company delivers a Notice of Redemption as provided
under ‎Section 16.02 and a Holder elects to convert its Called Notes in connection with such Notice of Redemption, as
the case may be, the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered
for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described below.
A conversion of Notes shall be deemed for these purposes to be “in connection with” a Make-Whole Fundamental Change
if the relevant Conversion Date occurs during the period from, and including, the Effective Date of the Make-Whole Fundamental
Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case
of an Exempted Fundamental Change or 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”). A conversion of Notes shall be
deemed for these purposes to be “in connection with” a Notice of Redemption if such Notes are Called Notes with respect
to such Notice of Redemption and the relevant Conversion Date occurs during the related Redemption Period. For the avoidance of
doubt, if the Company elects to redeem fewer than all of the outstanding Notes pursuant to ‎‎Article 16, Holders of
the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to‎ ‎Section 14.01(b)(v) and
will not be entitled to an increase in the Conversion Rate for conversions of such Notes (on account of the Notice of Redemption)
during the applicable Redemption Period, even if such Notes are otherwise convertible pursuant to ‎Section 14.01(b)(i)-‎(iv).


 


(b)           Upon
surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or a Notice of Redemption, the Company shall,
at its option, satisfy the related Conversion 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 conversion of Notes following the Effective Date of such Make-Whole Fundamental Change,
the Conversion 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 converted Notes equal to the Conversion Rate (including any increase to reflect the
Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be determined and paid
to Holders in cash on the fifth Business Day following the Conversion Date. The Company shall notify the Holders and the Trustee
in writing of the Effective Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date.


 






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(c)            The
number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole
Fundamental Change or a Notice of Redemption 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 the Company delivers the Notice of Redemption, 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 determined with respect to the Notice
of 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 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the applicable
Effective Date. If a conversion of Called Notes during a Redemption Period would also be deemed to be in connection with a Make-Whole
Fundamental Change, a Holder of any such Notes to be converted will be entitled to a single increase to the Conversion Rate with
respect to the first to occur of the Effective Date of the Notice of Redemption or the Make-Whole Fundamental Change, as applicable,
and the later event shall be deemed not to have occurred for purposes of such conversion for purposes of this ‎Section 14.03.


 


(d)           The
Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion 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 Conversion Rate immediately prior to such adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Conversion 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 Conversion Rate as set forth
in ‎Section 14.04.


 


(e)            The
following table sets forth the number of Additional Shares by which the Conversion 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:


 


	 	Stock Price
	Effective
    Date	$	117.53	 	$	130.00	 	$	150.00	 	$	170.42	 	$	185.00	 	$	221.54	 	$	250.00	 	$	300.00	 	$	350.00	 	$	400.00	 	$	500.00	 	$	650.00	 	$	800.00	 
	March 4,
    2021	 	2.6405	 	 	2.2468	 	 	1.7231	 	 	1.3430	 	 	1.1361	 	 	0.7694	 	 	0.5806	 	 	0.3653	 	 	0.2355	 	 	0.1534	 	 	0.0640	 	 	0.0130	 	 	0.0000	 
	March 1,
    2022	 	2.6405	 	 	2.2258	 	 	1.6897	 	 	1.3031	 	 	1.0941	 	 	0.7272	 	 	0.5408	 	 	0.3313	 	 	0.2076	 	 	0.1311	 	 	0.0504	 	 	0.0079	 	 	0.0000	 
	March 1,
    2023	 	2.6405	 	 	2.1906	 	 	1.6411	 	 	1.2483	 	 	1.0377	 	 	0.6726	 	 	0.4903	 	 	0.2897	 	 	0.1745	 	 	0.1053	 	 	0.0359	 	 	0.0034	 	 	0.0000	 
	March 1,
    2024	 	2.6405	 	 	2.1514	 	 	1.5833	 	 	1.1820	 	 	0.9692	 	 	0.6066	 	 	0.4300	 	 	0.2413	 	 	0.1373	 	 	0.0775	 	 	0.0216	 	 	0.0005	 	 	0.0000	 
	March 1,
    2025	 	2.6405	 	 	2.1083	 	 	1.5127	 	 	1.0988	 	 	0.8830	 	 	0.5245	 	 	0.3564	 	 	0.1847	 	 	0.0960	 	 	0.0485	 	 	0.0091	 	 	0.0000	 	 	0.0000	 
	March 1,
    2026	 	2.6405	 	 	2.0398	 	 	1.4030	 	 	0.9722	 	 	0.7541	 	 	0.4083	 	 	0.2573	 	 	0.1157	 	 	0.0507	 	 	0.0203	 	 	0.0010	 	 	0.0000	 	 	0.0000	 
	March 1,
    2027	 	2.6405	 	 	1.9225	 	 	1.2066	 	 	0.7479	 	 	0.5326	 	 	0.2319	 	 	0.1233	 	 	0.0401	 	 	0.0111	 	 	0.0017	 	 	0.0000	 	 	0.0000	 	 	0.0000	 
	March 1,
    2028	 	2.6405	 	 	1.8244	 	 	0.7987	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 	 	0.0000	 




 


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 by which the Conversion Rate shall be increased 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;


 






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(ii)            if
the Stock Price is greater than $800.00 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 (d) above), no Additional Shares shall be added to the Conversion
Rate; and


 


(iii)           if
the Stock Price is less than $117.53 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 (d) above), no Additional Shares shall be added to the Conversion Rate.


 


Notwithstanding the foregoing, in no event shall the Conversion
Rate per $1,000 principal amount of Notes exceed 8.5084 shares of Common Stock, subject to adjustment in the same manner as the
Conversion Rate pursuant to ‎Section 14.04.


 


(f)            Nothing
in this ‎Section 14.03 shall prevent an adjustment to the Conversion Rate that would otherwise be required pursuant to
 ‎Section 14.04 in respect of a Make-Whole Fundamental Change.


 


Section 14.04. Adjustment of Conversion
Rate. The Conversion 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 Conversion 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 convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied
by the principal amount (expressed in thousands) of Notes held by such Holder.


 


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


 





 


 


where,


 


		CR0       =	the
Conversion 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 Conversion Rate in effect immediately after the
open of business on such Ex-Dividend Date or Effective Date;





 






    68


     


    

 


		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 Conversion Rate shall be
immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to
the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.


 


(b)           If
the Company distributes to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant
to a stockholder rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such
distribution, 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 distribution, the Conversion Rate shall be increased based on the following
formula:


 





 


where,


 


	CR0       =	 the Conversion Rate in effect immediately prior
to the open of business on the Ex-Dividend Date for such distribution;



 


	CR'        =	the Conversion 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;



 


	X           =	 the total number of shares of Common Stock distributable
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 distribution of such rights, options or warrants.



 






    69


     


    

 


Any increase made under this ‎Section 14.04(b) shall
be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after
the open of business on the Ex-Dividend Date for such distribution. To the extent that shares of the Common Stock are not delivered
after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would
then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis
of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed,
the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such distribution
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
of Common Stock 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 of such distribution, and in determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable
on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company in good
faith.


 


(c)            If
the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company 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 (including share splits) as to which an adjustment was effected
pursuant to ‎Section 14.04(a) or ‎Section 14.04(b), (ii) except as otherwise provided in Section 14.11,
rights issued pursuant to any stockholder rights plan of the Company then in effect, (iii) distributions of Reference Property
in exchange for, or upon conversion of, Common Stock in a Share Exchange Event, (iv) dividends or distributions paid exclusively
in cash as to which the provisions set forth in ‎Section 14.04(d) shall apply, and (v) 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 Conversion Rate shall be increased based on the following formula:


 





 


where,


 


	CR0       =	the Conversion Rate in effect immediately prior
to the open of business on the Ex-Dividend Date for such distribution;



 


	CR'        =	the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date;



 






    70


     


    

 


	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 Company
in good faith) 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 Conversion Rate shall be decreased to the Conversion 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 Conversion Rate in effect on the Ex-Dividend Date for the 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 Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”),
the Conversion Rate shall be increased based on the following formula:


 





 


where,


 


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



 


	CR'        =	the Conversion 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.



 






    71


     


    

 


The increase to the Conversion 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 conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date
occurs during the Valuation Period, the reference 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement
or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion
and within the Valuation Period, the reference 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 Conversion Rate as of such Trading Day of such Observation Period. If any dividend or distribution
that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately decreased, effective
as of the date the Board of Directors determines not to pay or make such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared or announced.


 


For purposes of this ‎Section 14.04(c) (and
subject in all respect to ‎Section 14.11), rights, options or warrants distributed by the Company to all holders of the
Common Stock entitling them to subscribe for or purchase shares of the Company’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 Conversion 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 Conversion 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 Conversion 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 Conversion Rate shall be readjusted as if such rights,
options or warrants had not been issued and (y) the Conversion 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 Conversion Rate shall be readjusted as if such rights, options and warrants had not
been issued.


 



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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 Conversion 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 Conversion
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 Company (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).


 


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


 


	CR' = CR0 ×	 	SP0	 
		 	SP0 − C	 




 


where,


 


	CR0       =	the Conversion Rate in effect immediately prior
to the open of business on the Ex-Dividend Date for such dividend or distribution;



 


	CR'        =	the Conversion 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



 






    73


     


    




 


	C          =	the amount in cash per share the Company 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 Conversion Rate shall be decreased, effective as of the date the Board of Directors determines
not to make or pay such dividend or distribution, to be the Conversion 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 it holds, 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 Conversion Rate on the Ex-Dividend
Date for such cash dividend or distribution.


 


(e)            If
the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock that is subject
to the then applicable tender offer rules under the Exchange Act (other than any odd-lot tender offer), 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 last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion
Rate shall be increased based on the following formula:


 





 


where,


 


	CR0       =	the Conversion 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 Conversion 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 Company in good faith) 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);



 






    74


     


    

 



 


		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 Conversion 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
conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion 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 Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which
Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period
for such conversion 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 Conversion Rate as of such
Trading Day of such Observation Period.


 


If the Company or one of its Subsidiaries
is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer described in this ‎Section 14.04(e) but
the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchase or all such purchases
are rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or
exchange offer had not been made or had been made only in respect of the purchases that have been made.


 


(f)            Notwithstanding
this ‎Section 14.04 or any other provision of this Indenture or the Notes, if a Conversion Rate adjustment becomes effective
on any Ex-Dividend Date, and a Holder that has converted 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 Conversion Date as described
under ‎Section 14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the
Conversion Rate adjustment provisions in this ‎Section 14.04, the Conversion Rate adjustment relating to such Ex-Dividend
Date shall not be made for such converting 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 Conversion Rate for the issuance of shares of the Common Stock or any securities
convertible 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.


 






    75


     


    

 


(h)           In
addition to those adjustments required by clauses ‎(a), ‎(b), ‎(c), ‎(d) and ‎(e) of this ‎Section 14.04,
and subject to applicable exchange listing rules, the Company from time to time may increase the Conversion Rate by any amount
for a period of at least 20 Business Days if the Company determines that such increase would be in the Company’s best interest.
In addition, subject to applicable exchange listing rules, the Company may (but is not required to) increase the Conversion Rate
to avoid or diminish any income tax to holders of Common Stock or rights to purchase shares of 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.


 


(i)            Notwithstanding
anything to the contrary in this ‎Article 14, the Conversion Rate shall not be adjusted:


 


(i)            upon
the issuance of any shares of Common Stock at a price below the Conversion Price or otherwise, other than any such issuance described
in clause (a), (b) or (c) of this Section 14.04;


 


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


 


(iii)          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 or incentive plan or program (including pursuant to any evergreen plan) of or assumed by the Company
or any of the Company’s Subsidiaries;


 


(iv)          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 ‎(iii) of this subsection and outstanding as of the date the Notes were first issued;


 


(v)           for
a third-party tender offer by any party other than a tender offer by one or more of the Company’s Subsidiaries as described
in clause (e) of this Section 14.04;


 


(vi)          upon
the repurchase of any shares of Common Stock pursuant to an open market share purchase program or other buy-back transaction, including
structured or derivative transactions such as accelerated share repurchase transactions or similar forward derivatives, or other
buy-back transaction, that is not a tender offer or exchange offer of the kind described under clause (e) of this Section 14.04;


 


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


 


(viii)        for
accrued and unpaid Special Interest, if any.


 






    76


     


    

 


(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)            If
an adjustment to the Conversion Rate otherwise required by this Section 14.04 would result in a change of less than 1% to
the Conversion Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry forward such adjustment,
except that all such deferred adjustments must be given effect immediately upon the earliest to occur of the following: (i) when
all such deferred adjustments would result in an aggregate change of at least 1% to the Conversion Rate, (ii) on the Conversion
Date for any Notes (in the case of Physical Settlement), (iii) on each Trading Day of any Observation Period related to any
conversion of Notes (in the case of Cash Settlement or Combination Settlement), (iv) December 1, 2027, (v) on any
date on which the Company delivers a Notice of Redemption and (vi) on the effective date of any Fundamental Change and/or
Make-Whole Fundamental Change, in each case, unless the adjustment has already been made.


 


(l)            Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent
if not the Trustee) an Officer’s Certificate setting forth the Conversion 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 Conversion Rate and
may assume without inquiry that the last Conversion 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 Conversion Rate setting forth the adjusted Conversion
Rate and the date on which each adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion
Rate to each Holder. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.


 


(m)          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 Company so long as the Company does not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company, 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 Conversion Values or the Daily Settlement Amounts over a span of multiple days (including, without limitation, an Observation
Period and the period, if any, for determining the Stock Price for purposes of a Make-Whole Fundamental Change or a Notice of Redemption),
the Company shall, in good faith, make appropriate adjustments (without duplication in respect of any adjustment made pursuant
to ‎Section 14.04) to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring
an adjustment to the Conversion 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 Conversion Values or
the Daily Settlement Amounts are to be calculated.


 


Section 14.06. Shares To Be Fully
Paid. The Company shall at all times reserve, free from preemptive rights, out of its authorized but unissued shares or shares
held in treasury, a number of shares of Common Stock equal to the product of (a) the number of outstanding Notes and (b) the
Conversion Rate (assuming the Conversion Rate has been increased by the maximum number of Additional Shares pursuant to ‎Section 14.03),
to provide for conversion of the Notes from time to time as such Notes are presented for conversion.


 






    77


     


    

 


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 a change to par value, or from par value to no par
value, or changes resulting from a subdivision or combination),


 


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


 


(iii)          any
sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’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
 “Share Exchange Event”), then, at and after the effective time of such Share Exchange Event, the right to
convert each $1,000 principal amount of Notes shall be changed into a right to convert 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 Conversion Rate immediately prior to such Share
Exchange 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 Share Exchange Event and, prior to or at the effective time of such Share
Exchange Event, the Company or the successor or acquiring 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 convert each
$1,000 principal amount of Notes; provided, however, that at and after the effective time of the Share Exchange
Event (A) the Company or the successor or acquiring Person, as the case may be, shall continue to have the right to
determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with
 ‎Section 14.02 and (B) (I) any amount payable in cash upon conversion 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 conversion 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
received in such Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of
Reference Property that a holder of one share of Common Stock would have received in such Share Exchange Event.


 






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If the Share Exchange 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 convertible 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 Share Exchange Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of
such Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely
cash in an amount equal to the Conversion Rate in effect on the Conversion 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 Share Exchange Event and (B) the
Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the fifth Business Day immediately following
the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee)
in writing of such weighted average as soon as practicable after such determination is made.


 


If the Reference Property in respect of
any such Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other
interests) in respect thereof, 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 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary
receipts (or other interests) in respect thereof. If, in the case of any Share Exchange Event, the Reference Property includes
shares of stock, securities or other property or assets (including any combination thereof), other than cash and/or cash equivalents,
of a Person other than the Company or the successor or acquiring Person, as the case may be, in such Share Exchange Event, then
such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor
or acquiring Person, and shall contain such additional provisions to protect the interests of the Holders as the Company shall
in good faith 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 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 Share Exchange Event, any
adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver
or cause to be delivered 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)           The
Company shall not become a party to any Share Exchange 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 convert 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 Share Exchange Event.


 






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


 


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


 


(b)           The
Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion 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 conversion, the Company 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)           The
Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated
quotation system the Company 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 conversion of the Notes.


 


Section 14.09. Responsibility of
Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder
to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including
any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same.
The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount)
of any shares of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion
of any Note; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor
any Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to
comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality
of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to 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 conversion 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 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 Conversion Agent shall be responsible for determining whether any event contemplated by ‎Section 14.01(b) has
occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee
and the Conversion Agent (if other than the Trustee) the notices referred to in ‎Section 14.01(b) with respect to
the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent (if different
than the Trustee) may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent
(if other than the Trustee) 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 or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to ‎Section 14.04
or ‎Section 14.11; or


 


(b)           voluntary
or involuntary dissolution, liquidation or winding-up of the Company; 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 Conversion Agent (if other than the Trustee) and to be delivered to each Holder, as promptly as possible but in any event
at least 10 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 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 or
one of its Subsidiaries, or (ii) the date on which such 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 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
or one of its Subsidiaries, dissolution, liquidation or winding-up.


 


Section 14.11. Stockholder Rights
Plans. If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if
any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing
the Common Stock issued upon such conversion 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 conversion of Notes, the
rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan,
the Conversion 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.


 


Section 14.12. Exchange in Lieu
of Conversion.


 


(a)           When
a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”), direct
the Conversion Agent to deliver, on or prior to the Trading Day immediately following the Conversion Date, such Notes to one or
more financial institutions designated by the Company (each, a “Designated Financial Institution”) for exchange
in lieu of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must
agree to timely pay and/or deliver, as the case may be, in exchange for such Notes, the cash, shares of Common Stock or combination
thereof that would otherwise be due upon conversion pursuant to ‎Section 14.02 or such other amount agreed to by the Holder
and the Designated Financial Institution(s) (the “Conversion Consideration”). If the Company makes an Exchange
Election, the Company shall, by the close of business on the Trading Day following the relevant Conversion Date, notify in writing
the Trustee, the Conversion Agent (if other than the Trustee) and the Holder surrendering Notes for conversion that the Company
has made the Exchange Election, and the Company shall promptly notify the Designated Financial Institution(s) of the relevant
deadline for delivery of the Conversion Consideration and the type of Conversion Consideration to be paid and/or delivered, as
the case may be.


 






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(b)           Any
Notes delivered to the Designated Financial Institution(s) shall remain outstanding, subject to the applicable procedures
of the Depositary. If the Designated Financial Institution(s) agree(s) to accept any Notes for exchange but does not
timely pay and/or deliver, as the case may be, the related Conversion Consideration, or if such Designated Financial Institution(s) does
not accept the Notes for exchange, the Company shall pay and/or deliver, as the case may be, the relevant Conversion Consideration,
as, and at the time, required pursuant to this Indenture as if the Company had not made the Exchange Election.


 


(c)           The
Company’s designation of any Designated Financial Institution(s) to which the Notes may be submitted for exchange does
not require such Designated Financial Institution(s) to accept any Notes.


 


Article 15

Repurchase of Notes at Option of Holders


 


Section 15.01. [Intentionally Omitted].


 


Section 15.02. Repurchase at Option
of Holders Upon a Fundamental Change.


 


(a)           Subject
to ‎Section 15.02(f), 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 of the principal amount
thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 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 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a repurchase
price equal to 100% of the principal amount thereof, plus any accrued and unpaid Special Interest thereon to, but excluding,
the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental Change
Repurchase Date falls after a Special Interest Record Date but on or prior to the Special Interest Payment Date to which such Special
Interest Record Date relates, in which case the Company shall instead pay the full amount of any accrued and unpaid Special Interest
to Holders of record as of the close of business on such Special Interest Record Date on, or at the Company’s election, before
such Special Interest Payment 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.


 






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(b)            Repurchases
of Notes under this ‎Section 15.02 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 applicable 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 applicable procedures of the Depositary, in each case,
such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 


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


 


(i)            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.


 


If
the Notes are Global Notes, to exercise the Fundamental Change repurchase right, Holders must surrender their Notes in accordance
with applicable Depositary procedures.


 


Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this ‎Section 15.02
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 Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with ‎Section 15.03.


 


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.


 






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(c)           On
or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to
all Holders and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written notice (the “Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the resulting 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 shall publish such information on the Company’s website or through
such other public medium as the Company may use at that time. Each Fundamental Change Company Notice shall specify:


 


(i)            the
events causing the Fundamental Change;


 


(ii)           the
effective 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;


 


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


 


(vii)         if
applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole
Fundamental Change);


 


(viii)        that
the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted 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 15.02.


 


At the Company’s written 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
anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase,
the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in
compliance with the requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases
all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in
compliance with the requirements for an offer made by the Company as set forth above.


 






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(e)           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 applicable 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.


 


(f)            Notwithstanding
anything to the contrary in this ‎Section 15.02, the Company shall not be required to send a Fundamental Change Company
Notice, or offer to repurchase or repurchase any Notes, as set forth in this ‎‎Article 15, in connection with a Fundamental
Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental Change constitutes
a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental
Change, the Notes become convertible (pursuant to ‎‎Section 14.07 and, if applicable, ‎Section 14.03) into
consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount of Notes that equals or exceeds the
Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that the same includes the maximum
amount of any accrued but unpaid Special Interest payable as part of the Fundamental Change Repurchase Price for such Fundamental
Change); and (iii) the Company timely sends the written notice relating to such Fundamental Change required pursuant to ‎‎Section 14.01(b)(iii).
Any Fundamental Change with respect to which, in accordance with the provisions described in this ‎Section 15.02(f), the
Company does not offer to repurchase any Notes is referred to as herein as an “Exempted Fundamental Change.”


 


Section 15.03. Withdrawal of Fundamental
Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) in respect
of Physical Notes by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance
with this ‎Section 15.03 at any time prior to the close of business on the Business 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, which must be $1,000 or an integral
multiple thereof,


 


(ii)           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;


 






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If the Notes are Global Notes, Holders must withdraw their Notes
subject to repurchase at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date in accordance with applicable procedures of the Depositary.


 


Section 15.04. 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 validly
withdrawn prior to the close of business on the Business 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 15.02) 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 15.02 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 pay the Fundamental Change Repurchase Price (and, to the extent not included in the Fundamental
Change Repurchase Price, accrued and unpaid Special Interest, if applicable) of the Notes 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, (i) such Notes will cease to be outstanding, (ii) Special Interest, if and to the extent any Special Interest
is accruing or payable on such date, will cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been
made or whether or not the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders
of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price and, to the extent not included
in the Fundamental Change Repurchase Price, accrued and unpaid Special Interest, if applicable).


 


(c)           Upon
surrender of a Note that is to be repurchased in part pursuant to ‎Section 15.02, 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 15.05. Covenant to Comply
with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer upon a Fundamental Change pursuant to
this Article 15, the Company will, if required:


 


(a)           comply
with the tender offer rules under the Exchange Act that may then be applicable;


 


(b)           file
a Schedule TO or any other required schedule under the Exchange Act; and


 


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


 


To the extent that the provisions of any
securities laws or regulations enacted or adopted after the date of this Indenture conflict with the provisions of this Indenture
relating to the Company’s obligations to repurchase the Notes upon a Fundamental Change, the Company shall comply with such
securities laws and regulations and shall not be deemed to have breached its obligations under such provisions of this Indenture
by virtue of such conflict.


 


Article 16

Optional Redemption


 


Section 16.01. Optional Redemption.
The Notes shall not be redeemable by the Company prior to March 6, 2025. On or after March 6, 2025, the Company may redeem
(an “Optional Redemption”) for cash all or any portion of the Notes (subject to the Partial Redemption Limitation),
at the Redemption Price, if the Last Reported Sale Price of the Common Stock has been at least 130% of the Conversion 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 Notice of Redemption 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 five Business Days prior to the date such Notice of Redemption is to be sent (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 written notice of such Optional Redemption (a “Notice of Redemption”)
not less than 25 nor more than 45 Scheduled Trading Days prior to the Redemption Date to each Holder 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 and the Paying Agent (if other than the Trustee); provided further that if, in accordance
with the provisions described in ‎Section 14.02(a)(iii), the Company elects through delivery of a Settlement Notice to
settle all conversions of Called Notes with a Conversion Date that occurs on or after the date of issuance of a Notice of Redemption
with respect to the Notes and prior to the related Redemption Date by Physical Settlement, then the Company may instead elect to
choose a Redemption Date that is a Business Day not less than 15 nor more than 60 calendar days after the date the Company sends
such Notice of Redemption to each Holder so to be redeemed as a whole or in part. The Redemption Date must be a Business Day, and
the Company may not specify a Redemption Date that falls on or after the 21st Scheduled Trading Day immediately preceding the Maturity
Date.


 






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(b)           The
Notice of Redemption, 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 Notice of Redemption or any defect in the Notice of Redemption
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.


 


(c)           Each
Notice of Redemption 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 Special 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 of Called Notes may surrender their Notes for conversion at any time prior to the close of business on the Scheduled Trading
Day immediately preceding the Redemption Date;


 


(vi)          the
procedures a converting Holder must follow to convert its Called Notes and the Settlement Method and Specified Dollar Amount, if
applicable;


 


(vii)         the
Conversion Rate and, if applicable, the number of Additional Shares added to the Conversion 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 Notice of Redemption shall be irrevocable.


 






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(d)           If
the Company elects to redeem fewer than all of the outstanding Notes, at least $50,000,000 aggregate principal amount of Notes
must be outstanding and not subject to redemption as of the relevant date of a Notice of Redemption (such requirement, the “Partial
Redemption Limitation”). If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are
Global Notes, the Notes to be redeemed shall be selected by the Depositary in accordance with the applicable procedures of the
Depositary. If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are not Global Notes, the
Trustee shall select the Notes or portions thereof to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot,
on a pro rata basis or by another method the Trustee considers to be fair and appropriate. If any Note selected for partial
redemption is submitted for conversion in part after such selection, the portion of the Note submitted for conversion shall be
deemed (so far as may be possible) to be the portion selected for redemption, subject, in the case of Notes represented by a Global
Note, to the Depositary’s applicable procedures.


 


Section 16.03.
Payment of Notes Called for Redemption.


 


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


 


(b)           Prior
to 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit 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 Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture
shall bind its successors and assigns whether so expressed or not.


 






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Section 17.02. Official Acts by
Successor Corporation. 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 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.


 


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 shall be deemed to have been sufficiently given or made, for all purposes
if given or served by overnight courier or 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 with the Trustee) to Shake Shack Inc., 225 Varick Street, Suite 301,
New York, NY 10014, Attention: Brian Satenstein, Controller, E-Mail: bsatenstein@shakeshack.com with a copy to Shake Shack Inc.,
225 Varick Street, Suite 301, New York, NY 10014, Attention: Ronald Palmese Jr., General Counsel, E-Mail: legalnotices@shakeshack.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 or sent electronically in PDF format to an email address specified by the Trustee.


 


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


 


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. Notwithstanding any other provision
of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any Fundamental Change
Company Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given if given to
the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic
mail in accordance with the Depositary’s applicable procedures.


 


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 AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 






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The Company 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 or the Notes
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 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.


 


The Company 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 to
the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish
to the Trustee an Officer’s Certificate stating that such action is permitted by the terms of this Indenture.


 


Each Officer’s Certificate and Opinion
of Counsel provided for, by or on behalf of the Company 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, Section 7.02(h) and
Section 8.04) 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 and that all conditions precedent to such action have been complied with; provided that no Opinion of Counsel
shall be required to be delivered in connection with (1) the original issuance of Notes on the date hereof under this Indenture,
(2) the mandatory exchange of the restricted CUSIP of the Restricted Securities to an unrestricted CUSIP pursuant to the applicable
procedures of the Depositary upon the Notes becoming freely tradable by non-Affiliates of the Company under Rule 144, or (3) a
request by the Company that the Trustee deliver a notice to Holders under this Indenture where the Trustee receives an Officer’s
Certificate with respect to such notice. With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s
Certificate or certificates of public officials.


 






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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 or the Company 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 Special Interest Payment Date, any Fundamental Change Repurchase Date, any Redemption Date or the Maturity
Date is not a Business Day or is a day on which financial institutions located in the state in which the Corporate Trust Office
is located are authorized or required by law or executive order to close or be closed, 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 that is not a day on which financial institutions
located in the state in which the Corporate Trust Office is located are authorized or required by law or executive order to close
or be closed 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 Conversion 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 15.04 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.


 


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 all or substantially all of 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.


 






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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  





 


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,
PDF or other electronic 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,
PDF or other electronic transmission shall constitute effective execution and delivery of this Indenture as to the other parties
hereto 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.


 






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Section 17.13. Waiver of Jury Trial.
EACH OF THE COMPANY 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 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, pandemics, epidemics, quarantine restrictions, recognized public emergencies, 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. These
calculations include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the trading
price of the Notes (for purposes of determining whether the Notes are convertible as described herein), the Daily VWAPs, the Daily
Conversion Values, the Daily Settlement Amounts, any Special Interest or interest payable pursuant to ‎Section 2.03(c) on
the Notes and the Conversion 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 Conversion Agent, and each of the Trustee and Conversion Agent (if different than
the Trustee) 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 written 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.


 


Section 17.17. Electronic Signatures.
All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication
sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided
by DocuSign (or such other digital signature provider as specified in writing to Trustee by the authorized representative), in
English). The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit
communications to Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of
interception and misuse by third parties.


 






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


 


	 	SHAKE SHACK INC.
	 	 
	 	By:	/s/ Ronald Palmese
	 	 	Name:	Ronald Palmese
	 	 	Title:	Senior Vice President & General Counsel



 


	 	U.S. Bank National AssociatiON, as Trustee
	 	 
	 	By:	/s/ Joshua Hahn
	 	 	Name:	Joshua Hahn
	 	 	Title:	Vice President



 


[Signature Page to Indenture]


 






    


     


    

 


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 CLASS A COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION 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 SHAKE SHACK INC. (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 COMPANY OR ANY SUBSIDIARY THEREOF, OR


 


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


 






    A-1


     


    

 


(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.]


 






    A-2


     


    

 


Shake Shack Inc.


 


0% Convertible Senior Note due 2028


 


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



 


CUSIP
No. 819047 AA92


 


Shake Shack Inc., a corporation 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.]3 [_______]4, or registered assigns, the principal sum [as set forth in the “Schedule
of Exchanges of Notes” attached hereto]5 [of $[_______]]6, which amount, taken together with the
principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $250,000,000 in aggregate
at any time, in accordance with the rules and applicable procedures of the Depositary, on March 1, 2028, and Special
Interest, if any, thereon as set forth below.


 


This Note shall not bear regular interest,
and the principal amount of this Note shall not accrete. Any Special Interest is payable semi-annually in arrears on each March 1
and September 1, commencing on September 1, 2021 (if any Special Interest is then payable), to Holders of record at the
close of business on the preceding February 15 and August 15 (whether or not such day is a Business Day), respectively.
Any Special 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 refer
solely to Special Interest (if, in such context, Special 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/or to any interest on any Defaulted Amounts payable as set forth
in ‎Section 2.03(c) in the within-mentioned Indenture.


 


Any Defaulted Amounts shall not accrue interest
unless Special Interest was payable on the required payment date, in which case such Defaulted Amounts shall accrue interest per
annum at the then-applicable Special Interest rate borne by the Notes, subject to the enforceability thereof under applicable law,
from, and including, such required 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.


 





 






1
Include if a global note.


2
This Note will be deemed to be identified by CUSIP No. 819047 AB7 from and after such time when (i) the Company delivers, pursuant
to Section 2.05(c) of the within-mentioned Indenture, written notice to the Trustee of the occurrence of the Resale Restriction
Termination Date and the removal of the restrictive legend affixed to this Note and (ii) this Note is identified by such CUSIP
number in accordance with the applicable procedures of the Depositary.


3
Include if a global note.


4
Include if a physical note.


5
Include if a global note.


6
Include if a physical note.


 






    A-3


     


    

 


The Company shall pay the principal of and
interest, if any, 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 Corporate Trust Office in the continental United States of America as a place where Notes may be presented
for payment or for registration of transfer and exchange.


 


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 convert 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.


 


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.


 


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left blank]


 






    A-4


     


    

 


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


 


	 	SHAKE SHACK INC.
	 	 
	 	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 Signatory	 



 






    A-5


     


    

 


[FORM OF REVERSE OF NOTE]


 


Shake Shack Inc.

0% Convertible Senior Note due 2028


 


This
Note is one of a duly authorized issue of Notes of the Company, designated as its 0% Convertible Senior Notes due 2028 (the “Notes”),
limited to the aggregate principal amount of $250,000,000 all issued or to be issued under and pursuant to an Indenture
dated as of March 4, 2021 (the “Indenture”), between the Company 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 Special Interest, if any, 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.


 


The Indenture contains provisions permitting
the Company 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 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 conversion
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.


 






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The Notes are issuable in registered form
without coupons in denominations of $1,000 principal amount and integral multiples 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 6, 2025 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
(other than an Exempted 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
convert 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 Conversion 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 A7


 


SCHEDULE OF EXCHANGES OF NOTES


 


Shake Shack Inc.

0% Convertible Senior Notes due 2028


 


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

	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 


	
 

	 	
 

	 	
 

	 	
 

	 	
 





 





 






7 Include if a global note.


 






    A-9


     


    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


To:  U.S. Bank National Association


60 Livingston Ave


Saint Paul, MN 55107


Attention: Shake Shack Inc. Administrator


 


The undersigned registered owner of this
Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple
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 conversion, together with any cash for any fractional share, and any Notes representing
any unconverted 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 converted 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 any Special 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.


 






    1


     


    

 


Fill in for registration of shares if

to be issued, and Notes if to

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 converted (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



 






    2


     


    

 


ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE
NOTICE]


 


To:  U.S. Bank National Association


60 Livingston Ave


Saint Paul, MN 55107


Attention: Shake Shack Inc. Administrator


 


The undersigned registered owner of this
Note hereby acknowledges receipt of a notice from Shake Shack Inc. (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 15.02 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 thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after
a Special Interest Record Date and on or prior to the corresponding Special Interest Payment Date, accrued and unpaid Special 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 repaid (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.



 






    1


     


    

 


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
Shake Shack Inc. or a subsidiary thereof; 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.


 






    1


     


    

 


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.


 






    2