EXECUTION VERSION


 







  


NEKTAR THERAPEUTICS


 


12.00% SENIOR SECURED NOTES DUE 2017





 







 


INDENTURE


 


Dated as of July 11, 2012





 







 


Wells Fargo Bank, National Association


 


Trustee and Collateral Agent


 



    	 



    	 



    

 


CROSS-REFERENCE TABLE* 


 


	
        Trust Indenture

        Act Section
	Indenture Section
	310(a)(1)	7.10
	   (a)(2)	7.10
	   (a)(3)	N.A.
	   (a)(4)	N.A.
	   (a)(5)	7.10
	   (b)	7.10
	   (c)	N.A.
	311(a)	7.11
	   (b)	7.11
	   (c)	N.A.
	312(a)	2.05
	   (b)	12.03
	   (c)	12.03
	313(a)	7.06
	   (b)(1)	10.03
	   (b)(2)	7.06; 7.07
	   (c)	7.06; 10.03;12.02
	   (d)	7.06
	314(a)	4.03;12.02; 12.05
	   (b)	N.A.
	   (c)(1)	12.04
	   (c)(2)	12.04
	   (c)(3)	N.A.
	   (d)	N.A.
	   (e)	12.05
	   (f)	N.A.
	315(a)	7.01
	   (b)	7.05; 12.02
	   (c)	7.01
	   (d)	7.01
	   (e)	6.11
	316(a) (last sentence)	2.09
	   (a)(1)(A)	6.05
	   (a)(1)(B)	6.04
	   (a)(2)	N.A.
	   (b)	6.07
	   (c)	2.12
	317(a)(1)	6.08
	   (a)(2)	6.09
	   (b)	2.04
	318(a)	12.01
	   (b)	N.A.
	   (c)	12.01


 


N.A. means not applicable.


* This Cross Reference Table is not part
of this Indenture.


 



    	 



    	 



    

 


TABLE OF CONTENTS


 


	 	Page
	 	 
	ARTICLE 1
	DEFINITIONS AND INCORPORATION
	BY REFERENCE
	 
	Section 1.01	Definitions.	1
	Section 1.02	Other Definitions.	20
	Section 1.03	Incorporation by Reference of Trust Indenture Act.	21
	Section 1.04	Rules of Construction.	22
	 	 	 
	ARTICLE 2
	THE NOTES
	 
	Section 2.01	Form and Dating.	22
	Section 2.02	Execution and Authentication.	23
	Section 2.03	Registrar and Paying Agent.	23
	Section 2.04	Paying Agent to Hold Money in Trust.	23
	Section 2.05	Holder Lists.	24
	Section 2.06	Transfer and Exchange.	24
	Section 2.07	Replacement Notes.	35
	Section 2.08	Outstanding Notes.	35
	Section 2.09	Treasury Notes.	35
	Section 2.10	Temporary Notes.	36
	Section 2.11	Cancellation.	36
	Section 2.12	Defaulted Interest.	36
	 	 	 
	ARTICLE 3
	REDEMPTION AND PREPAYMENT
	 
	Section 3.01	Notices to Trustee.	36
	Section 3.02	Selection of Notes to Be Redeemed or Purchased.	37
	Section 3.03	Notice of Redemption.	37
	Section 3.04	Effect of Notice of Redemption.	38
	Section 3.05	Deposit of Redemption or Purchase Price.	38
	Section 3.06	Notes Redeemed or Purchased in Part.	38
	Section 3.07	Optional Redemption.	38
	Section 3.08	Mandatory Redemption.	39
	Section 3.09	[Reserved]	39
	Section 3.10	Offer to Purchase by Application of Excess Proceeds.	39
	 	 	 
	ARTICLE 4
	COVENANTS
	 
	Section 4.01	Payment of Notes.	41
	Section 4.02	Maintenance of Office or Agency.	41
	Section 4.03	Reports.	42
	Section 4.04	Compliance Certificate.	43
	Section 4.05	Taxes.	43
	Section 4.06	Stay, Extension and Usury Laws.	44
	Section 4.07	Restricted Payments.	44
	Section 4.08	Dividend and Other Payment Restrictions Affecting Subsidiaries.	46
	Section 4.09	Incurrence of Indebtedness and Issuance of Preferred Stock.	48


 



    	 



    	 



    

 


	 	 	Page 
	 	 	 
	Section 4.10	Asset Sales.	52
	Section 4.11	Transactions with Affiliates.	53
	Section 4.12	Liens.	55
	Section 4.13	Business Activities.	55
	Section 4.14	Corporate Existence.	55
	Section 4.15	Offer to Repurchase Upon Change of Control.	55
	Section 4.16	Royalty Transactions Repurchase Offer.	57
	Section 4.17	Additional Note Guarantees.	59
	Section 4.18	Designation of Royalty Transaction Subsidiaries.	59
	Section 4.19	Maintenance of Property and Insurance.	60
	Section 4.20	Real Estate Mortgages and Filings.	60
	Section 4.21	Minimum Cash Balance.	61
	Section 4.22	Cash Reserve Account.	61
	 	 	 
	ARTICLE 5
	SUCCESSORS
	 	 	 
	Section 5.01	Merger, Consolidation, or Sale of Assets.	62
	Section 5.02	Successor Corporation Substituted.	63
	 	 	 
	ARTICLE 6
	DEFAULTS AND REMEDIES
	 	 	 
	Section 6.01	Events of Default.	63
	Section 6.02	Acceleration.	65
	Section 6.03	Other Remedies.	65
	Section 6.04	Waiver of Past Defaults.	66
	Section 6.05	Control by Majority.	66
	Section 6.06	Limitation on Suits.	66
	Section 6.07	Rights of Holders of Notes to Receive Payment.	67
	Section 6.08	Collection Suit by Trustee.	67
	Section 6.09	Trustee May File Proofs of Claim.	67
	Section 6.10	Priorities.	67
	Section 6.11	Undertaking for Costs.	68
	 	 	 
	ARTICLE 7
	TRUSTEE
	 
	Section 7.01	Duties of Trustee.	68
	Section 7.02	Rights of Trustee.	69
	Section 7.03	Individual Rights of Trustee.	70
	Section 7.04	Trustee’s Disclaimer.	70
	Section 7.05	Notice of Defaults.	71
	Section 7.06	Reports by Trustee to Holders of the Notes.	71
	Section 7.07	Compensation and Indemnity.	71
	Section 7.08	Replacement of Trustee.	72
	Section 7.09	Successor Trustee by Merger, etc.	73
	Section 7.10	Eligibility; Disqualification.	73
	Section 7.11	Preferential Collection of Claims Against Company.	73
	Section 7.12	Trustee as Paying Agent and Collateral Agent.	73
	 	 	 
	ARTICLE 8
	LEGAL DEFEASANCE AND COVENANT DEFEASANCE
	 
	Section 8.01	Option to Effect Legal Defeasance or Covenant Defeasance.	73


 



    	ii



    	 



    

 


	 	 	Page 
	 	 	 
	Section 8.02	Legal Defeasance and Discharge.	73
	Section 8.03	Covenant Defeasance.	74
	Section 8.04	Conditions to Legal or Covenant Defeasance.	74
	Section 8.05	Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.	76
	Section 8.06	Repayment to Company.	76
	Section 8.07	Reinstatement.	76
	 	 	 
	ARTICLE 9
	AMENDMENT, SUPPLEMENT AND WAIVER
	 
	Section 9.01	Without Consent of Holders of Notes.	77
	Section 9.02	With Consent of Holders of Notes.	77
	Section 9.03	Revocation and Effect of Consents.	79
	Section 9.04	Notation on or Exchange of Notes.	79
	Section 9.05	Trustee to Sign Amendments, etc.	79
	 	 	 
	ARTICLE 10
	COLLATERAL AND SECURITY
	 
	Section 10.01	Grant of Security Interest; Collateral Documents.	79
	Section 10.02	Recording and Opinions.	80
	Section 10.03	Release of Collateral.	80
	Section 10.04	[Reserved].	81
	Section 10.05	[Reserved].	81
	Section 10.06	Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents.	81
	Section 10.07	Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.	81
	Section 10.08	Termination of Security Interest.	81
	 	 	 
	ARTICLE 11
	NOTE GUARANTEES
	 
	Section 11.01	Guarantee.	82
	Section 11.02	Limitation on Guarantor Liability.	83
	Section 11.03	Execution and Delivery of Note Guarantee.	83
	Section 11.04	Guarantors May Consolidate, etc., on Certain Terms.	83
	Section 11.05	Releases.	84
	 	 	 
	ARTICLE 12
	satisfaction and discharge
	 
	Section 12.01	Satisfaction and Discharge.	84
	Section 12.02	Application of Trust Money.	85
	 	 	 
	ARTICLE 13
	MISCELLANEOUS
	 
	Section 13.01	Notice	86
	Section 13.02	Communication by Holders of Notes with Other Holders of Notes.	86
	Section 13.03	Certificate and Opinion as to Conditions Precedent.	87
	Section 13.04	Statements Required in Certificate or Opinion.	87
	Section 13.05	Rules by Trustee and Agents.	87
	Section 13.06	Force Majeure	87
	Section 13.07	No Personal Liability of Directors, Officers, Employees and Stockholders.	88
	Section 13.08	Governing Law.	88



 


    	iii



    	 



    

 


	 	 	Page 
	 	 	 
	Section 13.09	No Adverse Interpretation of Other Agreements.	88
	Section 13.10	Successors.	88
	Section 13.11	Severability.	88
	Section 13.12	Counterpart Originals.	88
	Section 13.13	Table of Contents, Headings, etc.	88
	Section 13.14	U.S.A. Patriot Act.	89


 


	EXHIBITS
	 	 
	Exhibit A	FORM OF NOTE
	Exhibit B	FORM OF CERTIFICATE OF TRANSFER
	Exhibit C	FORM OF CERTIFICATE OF EXCHANGE
	Exhibit D	FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
	Exhibit E	FORM OF SUPPLEMENTAL INDENTURE


 



    	iv



    	 



    

  


INDENTURE dated as
of July 11, 2012 between Nektar Therapeutics, a Delaware corporation, and Wells Fargo Bank, National Association, as trustee (together
with its successors and assigns, in such capacity, the “Trustee”) and collateral agent (together with its successors
and assigns, in such capacity, the “Collateral Agent”).


 


The Company and the
Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the
 12.00% Senior Secured Notes due 2017 (the “Notes”):


 


ARTICLE
1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


		Section 1.01	Definitions.



 


“144A Global
Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.


 


“Acquired
Debt” means, with respect to any specified Person:


 


		(1)	Indebtedness of any other Person existing at the time such other Person is merged with or into
or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or
in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and



 


		(2)	Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.



 


“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 purposes of this definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies
of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the Voting Stock of a Person will be deemed to be control solely for purposes of Section 4.11 For purposes
of this definition, the terms “controlling,” “controlled by” and “under common control with”
have correlative meanings.


 


“Agent”
means any Registrar, co-registrar, Paying Agent or additional paying agent.


 


“Applicable
Net Royalty Proceeds” means the first $25.0 million of aggregate Net Proceeds of Royalty Transactions actually used by
the Company to complete repurchases.


 


“Applicable
Premium” means, with respect to any Note on any redemption date, the greater of:


 


		(1)	1.0% of the principal amount of the Note; or



 


		(2)	the excess, if any, of:



 


		(a)	the present value at such redemption date of (i) the redemption price of the Note at July 15, 2015
(which shall be 109% of the principal amount of the Notes) plus (ii) all required interest payments due on the Note through July
15, 2015 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate
as of such redemption date plus 50 basis points; over



 



    	1



    	 



    

 


		(b)	the principal amount of the Note.



 


“Applicable
Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules
and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.


 


“Applicable
Transaction” means (1) any incurrence of Indebtedness as part of a Collaboration Transaction or Royalty Transaction in
connection with which cash proceeds are generated and (2) the receipt of any cash payments by the Company or any Restricted Subsidiary
of the Company as part of a Collaboration Transaction other than (x) net royalty payments, (y) payments for bona fide services
provided by the Company or any Restricted Subsidiary and (z) payments for manufacturing and supply activities and (3) any incurrence
of Permitted Convertible Notes, in each case, arising from transactions occurring after the date of this Indenture but excluding
amendments, restatements, modifications, renewals, supplements or replacements of agreements entered into prior to the date of
this Indenture.


 


“Asset Sale”
means:


 


		(1)	the sale, lease, conveyance or other disposition of any assets or property; provided that
the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by Section 4.15 and/or Section 5.01 and not by the provisions of Section 4.10; and



 


		(2)	the issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or the sale
of Equity Interests in any of its Restricted Subsidiaries.



 


Notwithstanding the
preceding, none of the following items will be deemed to be an Asset Sale:


 


		(1)	any single transaction or series of related transactions that involves assets having a Fair Market
Value of less than $1.0 million;



 


		(2)	a transfer of assets between or among the Company and the Guarantors;



 


		(3)	an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or to
a Restricted Subsidiary of the Company;



 


		(4)	the sale or lease of products, services or accounts receivable in the ordinary course of business,
any sale or other disposition of damaged, worn-out or obsolete assets in the ordinary course of business and the abandonment or
other disposition of intellectual property that in the Company’s good faith judgment are not useful in a Permitted Business
or otherwise of any material value;



 


		(5)	the sale or other disposition of cash or Cash Equivalents;



 


		(6)	a Restricted Payment that does not violate Section 4.07 or a Permitted Investment;



 


		(7)	the licensing or sublicensing of patents, trademarks, know-how or other intellectual property or
general intangibles related thereto in the ordinary course of business which do not materially interfere with the ordinary conduct
of the business of the Company or any of its Restricted Subsidiaries (provided that any exclusive license of patents that
effectively constitutes a transfer of the related patent shall be deemed to be an Asset Sale);



 



    	2



    	 



    

 


		(8)	the lease, assignment or sublease of any real or personal property in the ordinary course of business
which do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;



 


		(9)	the sale of any property in a Sale/Leaseback Transaction within six months of the acquisition of
such property;



 


		(10)	the sale or other disposition of the Equity Interests of any Royalty Transaction Subsidiary pursuant
to the foreclosure of a pledge of such Equity Interests in connection with the related Royalty Transaction; and



 


		(11)	any Collaboration Transaction, to the extent involving any sale, lease, conveyance or other disposition
of property or assets.



 


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


 


“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act),
such “person” will be deemed to have beneficial ownership of all securities that such “person” has the
right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only
after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding
meaning.


 


“Board of
Directors” means:


 


		(1)	with respect to a corporation, the board of directors of the corporation or any committee thereof
duly authorized to act on behalf of such board;



 


		(2)	with respect to a partnership, the Board of Directors of the general partner of the partnership;



 


		(3)	with respect to a limited liability company, the managing member or members or any controlling
committee of managing members thereof; and



 


		(4)	with respect to any other Person, the board or committee of such Person serving a similar function.



 


“Business
Day” means any day other than a Legal Holiday.


 


“Capital Lease
Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet prepared in accordance with GAAP, and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which
such lease may be prepaid by the lessee without payment of a penalty.


 


“Capital Stock”
means:


 


		(1)	in the case of a corporation, corporate stock;



 



    	3



    	 



    

 


		(2)	in the case of an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock;



 


		(3)	in the case of a partnership or limited liability company, partnership interests (whether general
or limited) or membership interests; and



 


		(4)	any other interest or participation in a Person that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing
any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with
Capital Stock.



 


“Cash Equivalents”
means:


 


		(1)	United States dollars;



 


		(2)	securities issued or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality of the United States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than one year from the date of acquisition;



 


		(3)	certificates of deposit and eurodollar time deposits with maturities of two years or less from
the date of acquisition, bankers’ acceptances with maturities not exceeding two years and overnight bank deposits, in each
case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating
of “B” or better;



 


		(4)	repurchase obligations with a term of not more than seven days for underlying securities of the
types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in
clause (3) above;



 


		(5)	commercial paper having one of the two highest ratings obtainable from Moody’s or S&P
and, in each case, maturing within two years after the date of acquisition;



 


		(6)	readily marketable direct obligations issued by any state of the United States of America or any
political subdivision thereof having one of the two highest rating categories obtainable from either Moody’s or S&P (or
reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding
two years from the date of acquisition;



 


		(7)	Indebtedness issued by Persons (other than the Company or any of its Affiliates) with a rating
of “A” or higher from S&P or “A-2” or higher from Moody’s in each case with maturities not exceeding
two years from the date of acquisition; and



 


		(8)	investment funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described
in clauses (1) through (7) of this definition.



 


“Change of
Control” means the occurrence of any of the following:


 


		(1)	the direct or indirect sale, lease, transfer, conveyance or other disposition (other than (x) by
way of merger or consolidation or (y) pursuant to a Royalty Transaction), in one or a series of related transactions, of (i) all
or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any Person other than
the Company or a Guarantor; or (ii) assets of the Company or any Subsidiary of the Company to a Person other than the Company or
a Guarantor for a purchase price equal to more than 50% of the consolidated total assets of the Company (based upon the Company’s
most recent audited balance sheet);



 



    	4



    	 



    

 


		(2)	the adoption of a plan relating to, or the occurrence of, the liquidation, dissolution or winding
up of the Company;



 


		(3)	the consummation of any transaction (including, without limitation, any merger or consolidation),
the result of which is that any “person” or “group” (each as defined above) becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares;



 


		(4)	the Company consolidates with, or merges with or into, any Person, or any Person consolidates with,
or merges with or into, the Company, or the Company consummates an exchange of shares, recapitalization, reorganization, business
combination or other similar event, in any such event pursuant to a transaction following which the holders of Voting Stock immediately
preceding such consolidation, merger, exchange, recapitalization, reorganization, business combination or similar event either
(a) no longer hold a majority of the Voting Stock of the Company or (b) no longer have the ability elect a majority of the board
of directors of the Company; or



 


		(5)	the first day on which a majority of the members of the Board of Directors of the Company are not
Continuing Directors. 



 


“Clearstream”
means Clearstream Banking, S.A.


 


“Collaboration
Transaction” means any transaction pursuant to which the Company or any Restricted Subsidiary (a) provides a license
or sublicense of its intellectual property, or transfers, contributes or assigns intellectual property owned or controlled by the
Company or any Restricted Subsidiary and/or provides a right of reference regulatory filings and applications with governmental
health authorities, and/or provides rights with respect to pre-clinical and clinical data, in each case to one or more third parties
in connection with the (b) research, clinical development, regulatory activities, manufacturing, commercialization and/or marketing
of one or more of the Company’s or any Restricted Subsidiary’s drugs or drug candidates, or similar agreements or arrangements.


 


“Collateral”
has the meaning assigned to it in the Collateral Documents.


 


“Collateral
Agent” shall have the meaning set forth in the preamble.


 


“Collateral
Documents” means the security agreements, pledge agreements, escrow agreement, Mortgages, collateral assignments, control
agreements and related agreements (including, without limitation, financing statements under the Uniform Commercial Code of the
relevant states), each as amended, supplemented, restated, renewed, replaced or otherwise modified from time to time, to secure
any Obligations under the Indenture Documents or under which rights or remedies with respect to any such Lien are governed.


 


“Company”
means Nektar Therapeutics, and any and all successors thereto.


 



    	5



    	 



    

 


“Consolidated
Cash Flow” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for
such period, adjusted as follows (without duplication):


 


		(1)	plus provision for taxes based on income, profits or capital, including state, franchise
and similar taxes, of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes
was taken into account in computing such Consolidated Net Income;



 


		(2)	plus the Fixed Charges of such Person and its Restricted Subsidiaries for such period, to
the extent that such Fixed Charges were deducted in computing such Consolidated Net Income;



 


		(3)	plus depreciation, amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to
the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income;



 


		(4)	minus non-cash items increasing such Consolidated Net Income for such period, other than
the recognition of deferred revenue, the accrual of revenue in the ordinary course of business and any items which represent the
reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period and any items for which cash was
received in a prior period;



 


in each case, on a
consolidated basis and determined in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:


 


		(1)	any extraordinary, nonrecurring or unusual gains or losses or income, expenses or charges, including,
without limitation, any severance expenses, any fees, expenses or charges related to any equity offering, Permitted Investment,
acquisition or Indebtedness permitted to be incurred by this Indenture (in each case, whether or not successful), in each case,
shall be excluded;



 


		(2)	the Net Income (but not loss) of any Person that is not a Subsidiary or that is accounted for by
the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in
cash (or to the extent converted into cash) to the specified Person or a Restricted Subsidiary of the Person;



 


		(3)	solely for the purpose of determining the amount available for Restricted Payments under clause
(iii)(a) of Section 4.07(a), the Net Income of any Restricted Subsidiary (other than a Note Guarantor) will be excluded to the
extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders unless any applicable restrictions have been legally waived;



 


		(4)	the cumulative effect of a change in accounting principles will be excluded;



 



    	6



    	 



    

 


		(5)	the Net Income of any Royalty Transaction Subsidiary will be included solely to the extent distributed
to the specified Person or one of its Subsidiaries;



 


		(6)	any increase in amortization or depreciation or any one-time non-cash charges or reductions in
Net Income, in each case resulting from purchase accounting in connection with any acquisition that is consummated after the date
of this Indenture shall be excluded;



 


		(7)	any impairment charges or asset write-offs and amortization of intangibles in each case arising
pursuant to the application of GAAP shall be excluded;



 


		(8)	any non-cash expense realized or resulting from employee benefit plans or post-employment benefit
plans, grants of stock appreciation or similar rights, stock options or other rights to officers, directors and employees of such
Person or any of its Restricted Subsidiaries, any severance or relocation costs or expenses, one-time non-cash compensation charges,
in each case of such Person or any of its Restricted Subsidiaries, shall be excluded;



 


		(9)	any currency translation gains and losses related to currency remeasurements of indebtedness, and
any net loss or gain resulting from hedging transactions for currency exchange risk, shall be excluded;



 


		(10)	non-cash charges for deferred tax asset valuation allowances shall be excluded; and



 


		(11)	to the extent covered by insurance and actually reimbursed, or, so long as such Person has made
a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the
extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within
365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365
days), expenses with respect to casualty events or business interruption, net of any reimbursement to the extent already taken
into account in computing Consolidated Net Income, shall be excluded.



 


“Continuing
Directors” means, as of any date of determination, any member of the Board of Directors of the Company who:


 


		(1)	was a member of such Board of Directors on the date of this Indenture; or



 


		(2)	was nominated for election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.



 


“Corporate
Trust Office of the Trustee” will be at the address of the Trustee specified in Section 13.01 hereof or such other address
as to which the Trustee may give notice to the Company.


 


“Custodian”
means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.


 


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


 


“Definitive
Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not
have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.


 



    	7



    	 



    

 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become
such pursuant to the applicable provision of this Indenture.


 


“Designated
Preferred Stock” means Preferred Stock of the Company (other than Disqualified Stock), that is issued for cash (other
than to the Company or any of its Subsidiaries or an employee stock ownership plan or trust established by the Company or any of
its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance
date thereof.


 


“Disqualified
Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder
of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding
the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock
have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale
will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem
any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07. The amount
of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company
and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions
of, such Disqualified Stock, exclusive of accrued dividends.


 


“Domestic
Restricted Subsidiary” means any Restricted Subsidiary of the Company that was formed under the laws of the United States
or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for
any Indebtedness of the Company.


 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Existing
Indebtedness” means Indebtedness of the Company and its Subsidiaries in existence on the date of this Indenture, until
such amounts are repaid.


 


“Existing
Subordinated Notes” means the 3.25% Convertible Subordinated Notes due 2012 of the Company issued under the Existing
Subordinated Notes Indenture.


 


“Existing
Subordinated Notes Indenture” means the Indenture, dated as of September 28, 2005, between the Company and J.P. Morgan
Trust Company, National Association, as trustee.


 


“Fair Market
Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving
distress or necessity of either party, as determined in good faith by the Company (and in the case of determinations of Fair Market
Value in excess of $5.0 million, by the Board of Directors of the Company).


 



    	8



    	 



    

 


“Fixed Charge
Coverage Ratio” means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of
such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any
of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the
Fixed Charge Coverage Ratio will be calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase,
redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the
use of the proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.


 


For purposes of making
the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations
(as determined in accordance with GAAP), in each case with respect to an operating unit of a business, during the four-quarter
reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date (each, for
purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, mergers, consolidations and discontinued operations (and the change of any associated
fixed charge obligations and the change in Consolidated Cash Flow resulting therefrom) had occurred on the first day of the four-quarter
reference period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition,
disposition, merger, consolidation or discontinued operation, in each case with respect to an operating unit of a business, that
would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such Investment, acquisition, disposition, discontinued operation, merger or consolidation
had occurred at the beginning of the applicable four-quarter period.


 


For purposes of this
definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Company. Any such pro forma calculation may include adjustments appropriate,
in the reasonable good faith determination of the Company as set forth in an Officer’s Certificate, to reflect operating
expense reductions and other operating improvements or synergies reasonably expected to result within twelve months following the
applicable pro forma event.


 


If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as
if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of twelve months). Interest
on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial
or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with
GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility
computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable
period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar
rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or,
if none, then based upon such optional rate chosen as the Company may designate.


 



    	9



    	 



    

 


“Fixed Charges”
means, with respect to any specified Person for any period, the sum, without duplication, of:


 


		(1)	the consolidated interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued, including, without limitation, amortization of original issue discount, non-cash interest payments, the
interest component of all payments associated with Capital Lease Obligations, excluding the amortization of deferred financing
fees and expensing of any bridge or other financing fees, and net of the effect of all payments made or received pursuant to Hedging
Obligations in respect of interest rates;



 


		(2)	plus the consolidated interest expense of such Person and its Restricted Subsidiaries that
was capitalized during such period;



 


		(3)	plus all cash dividends (excluding items eliminated in consolidation) on any series of preferred
stock of such Person or any of its Restricted Subsidiaries,



 


		(4)	minus interest income for such period,



 


in each case, determined
on a consolidated basis in accordance with GAAP; provided that non-cash interest expense in respect of long-term liabilities
incurred in connection with Royalty Transactions that do not constitute Indebtedness for borrowed money shall not be included in
Fixed Charges.


 


“Foreign Subsidiary”
means a Subsidiary that is organized under the laws of a jurisdiction other than the United States, any state thereof or the District
of Columbia and does not guarantee or otherwise provide direct credit support for any Indebtedness of the Company.


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect on the date of this Indenture.


 


“Global Note
Legend” means the legend set forth in Section 2.06(f)(2) hereof, which is required to be placed on all Global Notes issued
under this Indenture.


 


“Global Notes”
means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on
behalf of and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A hereto and that bears
the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued
in accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4) or 2.06(d)(2) hereof.


 


“Government
Securities” means securities that are: (1) direct obligations of the United States of America for the timely payment
of which its full faith and credit is pledged, or (2) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America, the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in each case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government
Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest
on the Government Securities evidenced by such depository receipt.


 



    	10



    	 



    

 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).


 


“Guarantor”
means any Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of this Indenture and its
successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions
of this Indenture.


 


“Hedging Obligations”
means, with respect to any specified Person, the obligations of such Person under:


 


		(1)	interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest
rate cap agreements and interest rate collar agreements;



 


		(2)	other agreements or arrangements designed to manage interest rates or interest rate risk; and



 


		(3)	other agreements or arrangements designed to protect such Person against fluctuations in currency
exchange rates or commodity prices.



 


“Holder”
means a Person in whose name a Note is registered on the books of the Registrar.


 


“IAI Global
Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold to Institutional Accredited Investors.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses, deferred or prepaid revenue,
trade payables and Guarantees incurred in the ordinary course of business and not in respect of borrowed money), whether or not
contingent:


 


		(1)	in respect of borrowed money;



 


		(2)	evidenced by bonds, notes, debentures or similar instruments;



 


		(3)	all Obligations for the reimbursement of any obligor on any letter of credit, banker’s acceptance
or similar credit transaction;



 


		(4)	representing Capital Lease Obligations;



 


		(5)	representing the balance deferred and unpaid of the purchase price of any property or services
due more than six months after such property is acquired or such services are completed; or



 



    	11



    	 



    

 


		(6)	representing any Hedging Obligations,



 


if and to the extent
any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness
of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person
(other than by endorsement of negotiable instruments for collection in the ordinary course of business).


 


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


 


“Indenture
Documents” means this Indenture, the Notes, the Note Guarantees and the Collateral Documents.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on
a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of
any Equity Interests of any direct or indirect Subsidiary of the Company such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any
such sale or disposition equal to the Fair Market Value of the Company’s Investments in such Subsidiary that were not sold
or disposed of in an amount determined as provided in Section 4.07. The acquisition by the Company or any Subsidiary of the Company
of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Subsidiary in
such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person
in an amount determined as provided in Section 4.07 Except as otherwise provided in this Indenture, the amount of an Investment
will be determined at the time the Investment is made and without giving effect to subsequent changes in value. Any payments (including
payments under the existing intercompany agreement between the Company and Nektar Therapeutics (India) Private Limited) made to
a foreign Restricted Subsidiary of the Company by the Company or a domestic Restricted Subsidiary of the Company to the extent
reflected as operating expenses of the Company or such domestic Restricted Subsidiary in the financial statements of the Company
shall be deemed to not constitute an Investment in such foreign Restricted Subsidiary.


 


“Institutional
Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act, who are not also QIBs.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.


 



    	12



    	 



    

 


“Lien”
means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.


 


“Material
Adverse Effect” means a material adverse effect on the financial condition, operations, assets, or business of the Company
and its Subsidiaries, taken as a whole.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgages”
means a collective reference to each mortgage, deed of trust, deed to secure debt and any other document or instrument under which
any Lien on the Premises or any other Collateral secured by and described in such mortgages, deeds of trust, deeds to secure debt
or other documents or instruments is granted to secure any Obligations of the Company or a Guarantor under any of the Indenture
Documents or under which rights or remedies with respect to any such Liens are governed.


 


“Net Income”
means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however, any gain (or loss), together with any related provision
for taxes on such gain (or loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries.


 


“Net Proceeds”
means the aggregate cash proceeds received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale, Royalty
Transaction or Applicable Transaction (including, without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale, Royalty Transaction or Applicable Transaction, but only as and when received),
net of the direct costs relating to such Asset Sale, Royalty Transaction or Applicable Transaction, including, without limitation,
legal, accounting and investment banking fees, and sales or brokerage commissions, and any relocation expenses incurred as a result
of the Asset Sale, Royalty Transaction or Applicable Transaction, taxes paid or payable as a result of the Asset Sale, Royalty
Transaction or Applicable Transaction, in each case, after taking into account any available tax credits or deductions and any
tax sharing arrangements, and amounts (including premiums and fees) required to be applied to the repayment of Indebtedness required
to be repaid as a result of such Asset Sale, Royalty Transaction or Applicable Transaction and any reserve for adjustment in respect
of the sale price of such asset or assets, or any retained liabilities or indemnities with respect to such Asset Sale, Royalty
Transaction or Applicable Transaction, established in accordance with GAAP. provided, however, that the amount of Net Proceeds
received with respect to an issuance of Permitted Convertible Notes shall be deemed to be 35% of the amount that would otherwise
be determined pursuant to the foregoing definition.


 


“Non-Recourse
Debt” means Indebtedness:


 


		(1)	as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (other than
undertakings, including in respect of ‘make-whole interest,’ that are customary in Royalty Transactions), (b) is directly
or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;



 



    	13



    	 



    

 


		(2)	no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action
against a Royalty Transaction Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness
of the Company or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its Stated Maturity; and



 


		(3)	as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Company
or any of its Restricted Subsidiaries.



 


“Non-U.S.
Person” means a Person who is not a U.S. Person.


 


“Note Guarantee”
means the Guarantee by each Guarantor of the Company’s obligations under this Indenture and the Notes, executed pursuant
to the provisions of this Indenture.


 


“Notes”
has the meaning assigned to it in the preamble to this Indenture.


 


“Obligations”
means any principal, interest, penalties, fees, expenses (including, without limitation, reasonable attorneys’, agents’
and professional advisors’ fees and expenses), indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.


 


“Officer”
means the Chairman of the Board, Chief Executive Officer, Chief Financial Officer, President, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer or the Secretary of the Company.


 


“Officer’s
Certificate” means a certificate signed on behalf of the Company by an Officer of the Company that meets the requirements
set forth in this Indenture.


 


“Opinion of
Counsel” means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements
of Section 13.04 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Permitted
Business” means businesses which are the same, similar, ancillary or reasonably related to the businesses in which the
Company and its Restricted Subsidiaries are engaged on the date of this Indenture.


 


“Permitted
Investments” means: 


 


		(1)	any Investment in the Company or in a Restricted Subsidiary of the Company that is a Guarantor;



 


		(2)	any Investment in Cash Equivalents;



 


		(3)	any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a
result of such Investment:



 


(a)      such
Person becomes a Restricted Subsidiary of the Company and a Guarantor; or


 



    	14



    	 



    

 


(b)      such
Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company and a Guarantor;


 


		(4)	any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 4.10;



 


		(5)	any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;



 


		(6)	any Investments received in compromise or resolution of (A) obligations of trade creditors or customers
that were incurred in the ordinary course of business of the Company or any of its Restricted Subsidiaries, including pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; or (B)
litigation, arbitration or other disputes;



 


		(7)	Investments represented by Hedging Obligations;



 


		(8)	loans or advances to employees made in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company in an aggregate principal amount not to exceed $5.0 million at any one time outstanding;



 


		(9)	repurchases of the Notes;



 


		(10)	Collaboration Transactions and Royalty Transactions, to the extent involving an Investment;



 


		(11)	guarantees not prohibited by Section 4.09 and guarantees required by Section 4.17;



 


		(12)	Investments in joint ventures of the Company or any of its Restricted Subsidiaries not to exceed
$15.0 million at any one time outstanding;



 


		(13)	Investments in Foreign Subsidiaries not to exceed $15.0 million at any one time outstanding; and



 


		(14)	other Investments in any Person having an aggregate Fair Market Value (measured on the date each
such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (14) that are at the time outstanding, not to exceed $20.0 million.



 


“Permitted
Liens” means:


 


		(1)	Liens in favor of the Collateral Agent created pursuant to this Indenture and the Collateral Documents
with respect to the Note and Note Guarantees;



 


		(2)	Liens in favor of the Company or the Guarantors;



 


		(3)	Liens on property of a Person existing at the time such Person is merged with or into or consolidated
with the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with
the Company or the Subsidiary;



 



    	15



    	 



    

 


		(4)	Liens on property (including Capital Stock) existing at the time of acquisition of the property
by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to, such acquisition,
and not incurred in contemplation of, such acquisition;



 


		(5)	Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds
or other obligations of a like nature incurred in the ordinary course of business;



 


		(6)	Liens to secure Permitted Debt (including Capital Lease Obligations) described in clause (4) of
the definition thereof covering only the assets acquired with or financed by such Indebtedness;



 


		(7)	Liens existing on the date of this Indenture;



 


		(8)	Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that
are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that
any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;



 


		(9)	Liens imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’
Liens, in each case, incurred in the ordinary course of business, which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings diligently conducted;



 


		(10)	all Liens of record identified in any existing title policies, all survey exceptions, all easements
or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and
other utility or other similar purposes, all local and other Laws, including building and zoning laws, regulations or ordinances,
now or hereafter in effect relating to or affecting any real property, and other Liens or imperfections of title to or on real
or personal property that are not material in amount or do not in the aggregate materially adversely affect the value of said properties
or materially impair their use in the operation of the business of such Person;



 


		(11)	Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Indenture;
provided, however, that:



 


		(a)	the new Lien shall be limited to all or part of the same
property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the
original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and



 


		(b)	the Indebtedness secured by the new Lien is not increased
to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Permitted
Refinancing Indebtedness and (y) an amount necessary to pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge; and



 


		(12)	Liens on assets of a Restricted Subsidiary that is not a Note Guarantor, securing Indebtedness
of such Restricted Subsidiary permitted to incurred pursuant to Section 4.09;



 


		(13)	Collaboration Transactions and Royalty Transactions, to the extent involving the incurrence of
a Lien;



 



    	16



    	 



    

 


		(14)	grants of intellectual property licenses or sublicenses in the ordinary course of business which
do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;



 


		(15)	judgment and attachment Liens not giving rise to an Event of Default;



 


		(16)	any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock
of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;



 


		(17)	leases and subleases of real property in the ordinary course of business which do not materially
interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries;



 


		(18)	Liens arising by virtue of any statutory or common law provisions relating to banker’s liens,
rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial
institution; and



 


		(19)	Liens incurred in the ordinary course of business of the Company or any Subsidiary of the Company
with respect to obligations that do not exceed $5.0 million at any one time outstanding.



 


“Permitted
Refinancing Indebtedness” means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange
for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge other Indebtedness of the
Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:


 


		(1)	the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced,
defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums,
incurred in connection therewith);



 


		(2)	such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or discharged;



 


		(3)	if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated
in right of payment to the Notes, such Permitted Refinancing Indebtedness is subordinated in right of payment to, the Notes on
terms at least as favorable to the holders of Notes as those contained in the documentation governing the Indebtedness being renewed,
refunded, refinanced, replaced, defeased or discharged; and



 


(4)such Indebtedness
is incurred either by the Company or by the Restricted Subsidiary who is the obligor on the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged.


 


“Person”
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.


 


“Preferred
Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation, dissolution, or
winding up.


 



    	17



    	 



    

 


“Private Placement
Legend” means the legend set forth in Section 2.06(f)(1) hereof to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.


 


“Public Equity
Offering” means a public offering for cash by the Company of Equity Interests (other than Disqualified Stock) of the
Company, other than (x) public offerings with respect to the Company’s Equity Interests registered on Form S-4 or S-8 or
(y) an issuance to any Subsidiary of the Company.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


“Regulation
S” means Regulation S promulgated under the Securities Act.


 


“Regulation
S Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued
in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer within the Corporate Trust Administration of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity with the particular subject, and shall, in each case,
have direct responsibility for the administration of this Indenture.


 


“Restricted
Definitive Note” means a Definitive Note bearing the Private Placement Legend.


 


“Restricted
Global Note” means a Global Note bearing the Private Placement Legend.


 


“Restricted
Investment” means an Investment other than a Permitted Investment.


 


“Restricted
Subsidiary” of a Person means any Subsidiary of the referent Person that is not a Royalty Transaction Subsidiary.


 


“Royalty Transaction”
means any royalty monetization transaction with respect to licenses or sublicenses of the intellectual property of the Company
or any Restricted Subsidiary, including but not limited to sales of royalty streams, royalty bonds and other royalty financings,
synthetic royalty and revenue interest transactions and hybrid monetization transactions.


 


“Royalty Transaction
Subsidiary” means any Subsidiary of the Company that is designated by the Board of Directors of the Company as an Royalty
Transaction Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary:


 


		(1)	has no Indebtedness other than Non-Recourse Debt;



 


		(2)	has no assets other than assets that are the subject of a Royalty Transaction and is not engaged
in any activities other than those related or incidental to a Royalty Transaction;



 


		(3)	is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of operating results, in each case other than pursuant
to the terms of Non-Recourse Debt; and



 



    	18



    	 



    

 


		(4)	has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries.



 


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


 


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


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


“Rule 904”
means Rule 904 promulgated under the Securities Act.


 


“Sale/Leaseback
Transaction” means an arrangement relating to property now owned or hereafter acquired by the Company or a Restricted Subsidiary
whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary
leases it from such Person, other than leases between the Company and a Restricted Subsidiary of the Company or between Restricted
Subsidiaries of the Company.


 


“S&P”
means Standard & Poor’s Ratings Group.


 


“SEC”
means the Securities and Exchange Commission.


 


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


 


“Significant
Subsidiary” means any Restricted Subsidiary (i) the total assets of which constitute more than 5% of the consolidated
total assets of the Company and its Restricted Subsidiaries and (ii) the total revenues of which constitute more than 5% of the
consolidated revenues of the Company and its Restricted Subsidiaries.


 


“Stated Maturity”
means, with respect to any installment of principal on any series of Indebtedness, the date on which the payment of principal was
scheduled to be paid in the documentation governing such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment
thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


		(1)	any corporation, association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting
agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers
or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly,
by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and



 


(2)      any partnership
(a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the
only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).


 



    	19



    	 



    

 


“TIA”
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).


 


“Treasury
Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities
with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has
become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to July
15, 2015; provided, however, that if the period from the redemption date to July 15, 2015, is less than one year,
the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will
be used.


 


“Trustee”
means Wells Fargo Bank, National Association, until a successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.


 


“Unrestricted
Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.


 


“Unrestricted
Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.


 


“U.S. Person”
means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act.


 


“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election
of the Board of Directors of such Person.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:


 


		(1)	the sum of the products obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness,
by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment;
by



 


		(2)	the then outstanding principal amount of such Indebtedness.



 





		Section 1.02	Other
                                                                                           Definitions1.








 








	Term	 	
        Defined

        in

        Section

	“Affiliate Transaction”	 	4.11
	“Asset Sale Offer”	 	3.10
	“Authentication Order”	 	2.02
	“Cash Reserve Account”	 	4.22


  







 


1 To be updated







 



    	20



    	 



    

 


	Term	 	
        Defined

        in

        Section

	“Change of Control Offer”	 	4.15
	“Change of Control Payment”	 	4.15
	“Change of Control Payment Date”	 	4.15
	“Covenant Defeasance”	 	8.03
	“DTC”	 	2.03
	“Escrow Agent”	 	4.22
	“Escrow Agreement”	 	4.22
	“Event of Default”	 	6.01
	“Excess Proceeds”	 	4.10
	“incur”	 	4.09
	“Legal Defeasance”	 	8.02
	“Lenders’ Policies”	 	4.20
	“Offer Amount”	 	3.10
	“Offer Period”	 	3.10
	“Paying Agent”	 	2.03
	“Permitted Debt”	 	4.09
	“Payment Default”	 	6.01
	“Permitted Convertible Notes”	 	4.09
	“Premises”	 	4.20
	“Prepayment Restricted Indebtedness”	 	4.07
	“Purchase Date”	 	3.10
	“Registrar”	 	2.03
	“Repurchase Date”	 	4.16
	“Restricted Payments”	 	4.07
	“Royalty Transactions Repurchase Offer”	 	4.16
	“Royalty Transactions Repurchase Offer Amount”	 	4.16
	“Royalty Transactions Repurchase Offer Period”	 	4.16


 


		Section 1.03	Incorporation by Reference
of Trust Indenture Act.



 


Whenever this Indenture
refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.


 


The following TIA terms
used in this Indenture have the following meanings:


 


“indenture
securities” means the Notes;


 


“indenture
security Holder” means a Holder of a Note;


 


“indenture
to be qualified” means this Indenture;


 


“indenture
trustee” or “institutional trustee” means the Trustee; and


 


“obligor”
on the Notes and the Note Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes
and the Note Guarantees, respectively.


 


All other terms used
in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.


 



    	21



    	 



    

 


		Section 1.04	Rules of Construction.



 


Unless the context
otherwise requires:


 


(1)      a
term has the meaning assigned to it;


 


(2)      an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(3)      “or”
is not exclusive;


 


(4)      words
in the singular include the plural, and in the plural include the singular;


 


(5)      “will”
shall be interpreted to express a command;


 


(6)      provisions
apply to successive events and transactions; and


 


(7)      references
to sections of or rules under the Securities Act will be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.


 


ARTICLE
2

THE NOTES


 


		Section 2.01	Form and Dating.



 


(a)          General.
The Notes will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations
of $2,000 and integral multiples of $1,000 in excess thereof.


 


The terms and provisions
contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.


 


(b)          Global
Notes. Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend
thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive
form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule
of Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such of the outstanding
Notes as will be specified therein and each shall provide that it represents 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 reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made
by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.


 



    	22



    	 



    

 


		Section 2.02	Execution and Authentication.



 


At least one Officer
must sign the Notes for the Company by manual or facsimile signature.


 


If an Officer whose
signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.


 


A Note will not be
valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.


 


The Trustee will, upon
receipt of a written order of the Company signed by two Officers (an “Authentication Order”), authenticate Notes
for original issue that may be validly issued under this Indenture. The aggregate principal amount of Notes outstanding at any
time may not exceed $125,000,000, except as provided in Section 2.07 hereof.


 


The Trustee may appoint
an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.


 


		Section 2.03	Registrar
                                                                                                                                         and
                                                                                                                                         Paying
                                                                                                                                         Agent.



 


The Company will maintain
an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a
register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional
paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Registrar.


 


The Company initially
appoints The Depository Trust Company (“DTC”) to act as Depositary with respect to the Global Notes.


 


The Company initially
appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.


 


		Section 2.04	Paying
                                                                                                                                         Agent
                                                                                                                                         to
                                                                                                                                         Hold
                                                                                                                                         Money
                                                                                                                                         in
                                                                                                                                         Trust.



 


The Company will require
each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders
or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and
will notify the Trustee, in writing, of any default by the Company in making any such payment. While any such default continues,
the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate
and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.


 



    	23



    	 



    

 


		Section 2.05	Holder Lists.



 


The Trustee will preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders
and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee
at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes
and the Company shall otherwise comply with TIA § 312(a).


 


		Section 2.06	Transfer and Exchange.



 


(a)          Transfer
and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company
for Definitive Notes if:


 


(1)          the
Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that
it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed
by the Company within 120 days after the date of such notice from the Depositary;


 


(2)          the
Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers a written notice to such effect to the Trustee;  or


 


(3)          there
has occurred and is continuing a Default or Event of Default with respect to the Notes.


 


Upon the occurrence
of either of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section
2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global
Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (d) hereof.


 


(b)          Transfer
and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the
extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:


 


(1)          Transfer
of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1).


 



    	24



    	 



    

 


(2)          All
Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar
either:


 


(A)        both:


 


(i)          a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged; and


 


(ii)          instructions
given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with
such increase; or


 


(B)        both:


 


(i)          a
written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged; and


 


(ii)          instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.


 


Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(g)
hereof.


 


(3)          Transfer
of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(2) above and the Registrar receives the following:


 


(A)          if
the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;


 


(B)          if
the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)          if
the transferee will take delivery in the form of a beneficial interest in the IAI Global Note, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable.


 



    	25



    	 



    

 


(4)          Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted
Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of Section 2.06(b)(2) above and:


 


(A)        the
Registrar receives the following:


 


(i)          if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications
in item (1)(a) thereof; or


 


(ii)          if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder
in the form of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


If any such transfer
is effected pursuant to subparagraph (A) above at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall authenticate
one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests
transferred or exchanged pursuant to subparagraph (A) above. Notwithstanding anything to the contrary contained herein, the Company
hereby agrees that, after the expiration of the six-month holding period under Rule 144 and upon receipt by the Registrar of the
certification set forth in item (1)(a) of Exhibit C hereto or item (4) of Exhibit B hereto, as applicable, but without any requirement
to deliver an Opinion of Counsel, it shall issue one or more Unrestricted Global Notes, an Authentication Order and provide the
Trustee with such other documentation as reasonably requested by the Trustee (including the Officer’s Certificate and Opinion
of Counsel set forth in Section 13.03 hereof) to exchange a beneficial interest in a Restricted Global Note into a beneficial interest
in an Unrestricted Global Note or to transfer a beneficial interest in a Restricted Global Note to a Person who shall take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.


 


Beneficial interests
in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Restricted Global Note.


 


(c)          Transfer
or Exchange of Beneficial Interests for Definitive Notes.


 



    	26



    	 



    

 


(1)          Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the
following documentation:


 


(A)          if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


(B)          if
such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;


 


(C)          if
such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)          if
such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a)
thereof;


 


(E)          if
such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(F)          if
such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof; or


 


(G)          if
such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


 


the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company shall execute
and the Trustee shall authenticate, upon receipt of an Authentication Order, and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered.
Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(1)
shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.


 


(2)          [Reserved]


 



    	27



    	 



    

 


(3)          Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note only if:


 


(A)        the
Registrar receives the following:


 


(i)          if
the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof;
or


 


(ii)          if
the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


(4)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2)
hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(g) hereof, and the Company will execute and the Trustee will, upon receipt of an Authentication Order, authenticate
and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(4) will be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to
the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive
Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(4)will not bear the Private Placement Legend.


 


(d)          Transfer
and Exchange of Definitive Notes for Beneficial Interests.


 


(1)          Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes
to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to
a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:


 



    	28



    	 



    

 


(A)          if
the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;


 


(B)          if
such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (1) thereof;


 


(C)          if
such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)          if
such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;


 


(E)          if
such beneficial interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(F)          if
such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or


 


(G)          if
such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,


 


the Trustee will cancel the Restricted
Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, the 144A Global Note, in the case of clause (C) above, the Regulation
S Global Note, and in all other cases, the IAI Global Note.


 


(2)          Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:


 


(A)        the
Registrar receives the following:


 


(i)          if
the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or


 


(ii)          if
the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of
a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 



    	29



    	 



    

 


and, in each such case set forth
in this subparagraph (A), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


Upon satisfaction
of the conditions of any of the subparagraphs in this Section 2.06(d)(2), the Trustee will cancel the Definitive Notes and increase
or cause to be increased the aggregate principal amount of the Unrestricted Global Note.


 


(3)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased
the aggregate principal amount of one of the Unrestricted Global Notes.


 


If any such
exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(A) or (3) above
at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so transferred.


 


(e)          Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s
compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes.
Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e).


 


(1)          Restricted
Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:


 


(A)          if
the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;


 


(B)          if
the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof; and


 



    	30



    	 



    

 


(C)         if
the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.


 


(2)         Restricted
Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:


 


(A)         the
Registrar receives the following:


 


(i)          if
the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or


 


(ii)          if
the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;


 


and, in each such case set forth
in this subparagraph (A), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.


 


(3)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.


 


(f)          Legends.
The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.


 


(1)          Private
Placement Legend.


 


(A)          Except
as permitted by subparagraph (B) below, each Restricted Global Note and each Restricted Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in substantially the following form


 


THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.


 



    	31



    	 



    

 


THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS A NON-U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH THE LAWS APPLICABLE TO SUCH PURCHASER IN THE JURISDICTION IN WHICH
SUCH PURCHASE IS MADE OR (C) IT IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 (a)(1), (2),
(3) or (7)UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE EXPIRATION
OF THE 6 MONTH HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO OFFERS AND SALES
TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT AND IN ACCORDANCE
WITH THE LAWS APPLICABLE TO IT IN THE JURISDICTION IN WHICH SUCH PURCHASE IS MADE, (D) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S, OR REGISTRAR’S, AS APPLICABLE,
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE
OR REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE 6 MONTH HOLDING PERIOD WITH
RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.


 


(B)          Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(3), (d)(2), (d)(3), (e)(2) or (e)(3)
of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend.


 


(2)          Global
Note Legend. Each Global Note will bear a legend in substantially the following form:


 



    	32



    	 



    

 


“THIS GLOBAL NOTE IS HELD BY THE
DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE 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.”


 


(g)          Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such
Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior
to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note will be reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary
at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note
will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such increase.


 


(h)          General
Provisions Relating to Transfers and Exchanges.


 


(1)          To
permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive
Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.


 


(2)          No
service charge will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange
or transfer pursuant to Sections 2.10, 3.06, 4.10 and 4.15 hereof).


 


(3)          All
Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will
be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.


 



    	33



    	 



    

 


(4)          Neither
the Registrar nor the Company will be required:


 


(A)          to
issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before
the mailing of a notice of redemption under Section 3.03 hereof and ending at the close of business on the day of selection;


 


(B)          to
register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part; or


 


(C)          to
register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date.


 


(5)          Prior
to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal
of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.


 


(6)          The
Trustee will, upon receipt of an Authentication Order, authenticate Global Notes and Definitive Notes in accordance with the provisions
of Section 2.02 hereof.


 


(7)          All
certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.


 


(8)          Trustee
and the Registrar 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, members or beneficial owners 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.


 


(9)          Neither
the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.


 


(10)          The
Trustee shall have no responsibility or obligation to any Participant or Indirect Participant or any other Person with respect
to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Participant or Indirect Participant
or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders
under the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary
subject to the Applicable Procedures. The Trustee may rely and shall be fully protected in relying upon information furnished by
the Depositary with respect to its Participants or Indirect Participants.


 



    	34



    	 



    

 


		Section 2.07	Replacement
                                                                                                                                         Notes.



 


If any mutilated Note
is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee will, upon receipt of an Authentication Order, authenticate a replacement
Note if the Trustee’s requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any
of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note.


 


Every replacement Note
is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.


 


		Section 2.08	Outstanding
                                                                                                                                         Notes.



 


The Notes outstanding
at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note; however, Notes held by the Company or a Subsidiary of the Company shall
not be deemed to be outstanding for purposes of Section 3.07(a) hereof. 


 


If a Note is replaced
pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced
Note is held by a protected purchaser.


 


If the principal amount
of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.


 


If the Paying Agent
(other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes will be deemed to be no longer outstanding and will cease
to accrue interest.


 


		Section 2.09	Treasury
                                                                                                                                                    Notes.



 


In determining whether
the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company
or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control
with the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes of determining whether
the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned
will be so disregarded. 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 the Trustee shall be entitled to accept and rely upon such Officers’ 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 determination.


 



    	35



    	 



    






 


Section 2.10         Temporary
Notes.


 


Until certificates
representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will
authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company will prepare and the Trustee will, upon receipt of an Authentication Order, authenticate definitive Notes in
exchange for temporary Notes.


 


Holders of temporary
Notes will be entitled to all of the benefits of this Indenture.


 


Section 2.11         Cancellation.


 


The Company at any
time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes (subject to the record retention requirement
of the Exchange Act). Evidence of the cancellation of all canceled Notes will be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.


 


Section 2.12         Defaulted
Interest.


 


If the Company defaults
in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special
record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed (in the case of Notes held
in book entry form, by electronic transmission) to Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.


 


ARTICLE
3

REDEMPTION AND PREPAYMENT


 


Section 3.01         Notices
to Trustee.


 


If the Company elects
to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it must furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:


 


(1)         the
clause of this Indenture pursuant to which the redemption shall occur;


 


(2)         the
redemption date;


 


(3)         the
principal amount of Notes to be redeemed; and


 


(4)         the
redemption price.


 



    	36



    	 



    

  


Section 3.02         Selection
of Notes to Be Redeemed or Purchased.


 


If less than all of
the Notes are to be redeemed at any time, the Trustee will select Notes for redemption on a pro rata basis to the extent
practicable, subject to the applicable procedures of the Depository unless otherwise required by law or applicable stock exchange
requirements.


 


In the event of partial
redemption or purchase by lot, the particular Notes to be redeemed or purchased will be selected, unless otherwise provided herein,
not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously
called for redemption or purchase.


 


The Trustee will promptly
notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected will be
in amounts of $2,000 or whole multiples of $1,000; except that if all of the Notes of a Holder are to be redeemed or purchased,
the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also
apply to portions of Notes called for redemption or purchase. No Notes of $2,000 or less can be redeemed in part.


 


Section 3.03         Notice
of Redemption.


 


Subject to the provisions
of Section 3.10 hereof, at least 30 days but not more than 60 days before a redemption date, the Company will mail or cause to
be mailed, by first class mail (in the case of Notes held in book entry form, by electronic transmission), a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than
60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge
of this Indenture pursuant to Articles 8 or 12 hereof.


 


The notice will identify
the Notes to be redeemed and will state:


 


(1)         the
redemption date;


 


(2)         the
redemption price;


 


(3)         if
any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation
of the original Note;


 


(4)         the
name and address of the Paying Agent;


 


(5)         that
Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;


 


(6)         that,
unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;


 


(7)         the
paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and


 



    	37



    	 



    

  


(8)         that
no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.


 


At the Company’s
request, the Trustee will give the notice of redemption in the Company’s name and at its expense; provided, however,
that the Company has delivered to the Trustee, at least 45 days (or such shorter notice as may be agreed to by the Trustee) prior
to the redemption date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in the preceding paragraph.


 


Section 3.04         Effect
of Notice of Redemption.


 


Once notice of redemption
is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be conditional.


 


Section 3.05         Deposit
of Redemption or Purchase Price.


 


One Business Day prior
to the redemption or purchase date, the Company will deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or
the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in
excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or
purchased.


 


If the Company complies
with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest will cease to accrue on
the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after an interest
record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase
is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.


 


Section 3.06         Notes
Redeemed or Purchased in Part.


 


Upon surrender of a
Note that is redeemed or purchased in part, the Company will issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased
portion of the Note surrendered.


 


Section 3.07         Optional
Redemption.


 


(a)         At
any time prior to July 15, 2015, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount
of Notes issued under this Indenture at a redemption price of 112% of the principal amount, plus accrued and unpaid interest, if
any, to the redemption date (subject to the rights of holders of Notes on the relevant record date to receive interest due on the
relevant interest payment date), with the net cash proceeds of one or more Public Equity Offerings of the Company; provided
that:


 



    	38



    	 



    

 


(1)          at
least 65% of the aggregate principal amount of Notes originally issued under this Indenture (excluding Notes held by the Company
and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and


 


(2)          the
redemption occurs within 90 days of the date of the closing of such Public Equity Offering, upon not less than 30 nor more than
60 days’ prior notice and otherwise in accordance with the procedures set forth in this Indenture.


 


Notice of any redemption
upon any such Public Equity Offering may be given prior to the completion thereof, and any such redemption or notice may, at the
Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of the related
Public Equity Offering.


 


(b)         At
any time prior to July 15, 2015, the Company may also redeem all or a part of the Notes, upon not less than 30 nor more than 60
days’ prior notice, at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium
as of, and accrued and unpaid interest, if any, to the date of redemption, subject to the rights of holders of Notes on the relevant
record date to receive interest due on the relevant interest payment date.


 


(c)         Except
pursuant to the preceding two paragraphs, the Notes will not be redeemable at the Company’s option prior to July 15, 2015.


 


(d)         On
or after July 15, 2015, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice,
at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any,
on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on July 15 of the
years indicated below, subject to the rights of holders of Notes on the relevant record date to receive interest on the relevant
interest payment date:


 


	Year	 	Percentage	 
	2015	 	 	109.0	%
	2016	 	 	104.5	%



 


Unless the Company
defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption
on the applicable redemption date.


 


(e)         Any
redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.


 


Section 3.08         Mandatory
Redemption.


 


The Company is not
required to make mandatory redemption or sinking fund payments with respect to the Notes.


 


Section 3.09         [Reserved]


 


Section 3.10         Offer
to Purchase by Application of Excess Proceeds.


 


In the event that,
pursuant to Section 4.10 hereof, the Company is required to commence an offer to all Holders to purchase Notes (an “Asset
Sale Offer”), it will follow the procedures specified below.


 



    	39



    	 



    

 


The Asset Sale Offer
shall be made to all Holders. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement
and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer
Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”),
the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes or, if less than the
Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will be made in the same manner as interest payments are made.


 


If the Purchase Date
is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest
will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.


 


Upon the commencement
of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant
to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:


 


(1)         that
the Asset Sale Offer is being made pursuant to this Section 3.10 and Section 4.10 hereof and the length of time the Asset Sale
Offer will remain open;


 


(2)         the
Offer Amount, the purchase price and the Purchase Date;


 


(3)         that
any Note not tendered or accepted for payment will continue to accrue interest;


 


(4)         that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest after the Purchase Date;


 


(5)         that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of
$2,000 or an integral multiple of $1,000 in excess thereof;


 


(6)         that
Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form
entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer,
to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three
days before the Purchase Date;


 


(7)         that
Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to
have such Note purchased;


 


(8)         that,
if the aggregate principal amount of Notes surrendered by holders thereof exceeds the Offer Amount, the Company will select the
Notes to be purchased on a pro rata basis based on the principal amount of Notes surrendered (with such adjustments as may
be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof,
will be purchased); and


 



    	40



    	 



    

 


 


(9)         that
Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).


 


On or before the Purchase
Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered,
all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s
Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee,
upon written request from the Company in the form of an Authentication Order, will authenticate and mail or deliver (or cause to
be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Asset Sale Offer on the Purchase Date.


 


Other than as specifically
provided in this Section 3.10, any purchase pursuant to this Section 3.10 shall be made pursuant to the provisions of Sections
3.01 through 3.06 hereof.


 


ARTICLE
4

COVENANTS


 


Section 4.01         Payment
of Notes.


 


The Company will pay
or cause to be paid the principal of and interest and premium, if any, on, the Notes on the dates and in the manner provided in
the Notes. Principal, interest and premium, if any, will be considered paid on the date due if the Paying Agent, if other than
the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, interest and premium, if any, then due.


 


The Company will pay
interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
2% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable
grace period) at the same rate to the extent lawful.


 


Section 4.02         Maintenance
of Office or Agency. 


 


The Company will maintain
an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes
may be surrendered for registration of transfer or for exchange 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 fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.


 



    	41



    	 



    

 


The Company may also
from time to time designate 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. 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 Company hereby
designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03
hereof.


 


Section 4.03         Reports.



 


(a)         Whether
or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the
Holders of Notes, within the time periods specified in the SEC’s rules and regulations:


 


(1)         all
quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required
to file such reports; and


 


(2)         all
current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.


 


(b)         If
the Company has designated any of its Subsidiaries as Royalty Transaction Subsidiaries, then at the time of the quarterly and annual
reports referred to in Section 4.03(a)(1), the Company shall make available to the Holders (separately from such reports, if the
Company so elects) a reasonably detailed presentation of the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of operations of the Royalty Transaction Subsidiaries
of the Company.


 


(c)         All
such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s
certified independent accountants. In addition, the Company will file a copy of each of the reports referred to in clauses (a)(1)
and (a)(2) above with the SEC for public availability within the time periods specified in the rules and regulations applicable
to such reports (unless the SEC will not accept such filing) and will post the reports on its website within those time periods.
The availability of the foregoing materials on the SEC’s EDGAR service (or any successor thereto) shall be deemed to satisfy
the Company’s delivery obligation, it being understood that the Trustee shall have no obligation whatsoever to determine
if such information has been posted.


 


(d)         If,
at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding paragraphs of this covenant with the SEC within the time
periods specified above unless the SEC will not accept such filings. The Company will not take any action for the purpose of causing
the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Company’s filings
for any reason, the Company will post the reports referred to in the preceding paragraphs on its website within the time periods
that would apply if the Company were required to file those reports with the SEC.


 


(e)         Furthermore,
the Company agrees that, for so long as any Notes remain outstanding, it will furnish to the holders of Notes, beneficial owners
of the Notes, bona fide prospective investors, securities analysts and market makers, upon their request, the reports described
above and any other information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 



    	42



    	 



    

 


 


(f)         Without
limiting any other obligations of the Company hereunder, with a view to making available to the holders
of Notes the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or regulation of the SEC that
may at any time permit the holders to sell securities of the Company to the public without registration, until the first anniversary
of the date of issuance of the Notes the Company shall:


 


(1)         
make and keep public information available, as those terms are understood and defined in Rule 144;


 


(2)         file
with the SEC all reports and other documents specified in applicable provisions of Rule 144 that are required of the Company under
the Securities Act and the Exchange Act within the time periods specified in the SEC’s rules and regulations; and


 


(3)         so
long as the holders own Notes, promptly upon request, furnish to holders (i) a written statement by the Company that it has complied
with the reporting requirements of the Securities Act and the Exchange Act as required for applicable provisions of Rule 144, (ii)
a copy of the most recent annual or quarterly report of the Company and such other reports and documents filed by the Company with
the Company and (iii) such other information as may be reasonably requested to permit the holders to sell such securities pursuant
to Rule 144 without registration.


 


Section 4.04         Compliance
Certificate. 


 


(a)         The
Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, commencing with the fiscal year ending
December 31, 2012, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during
the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company
has kept, observed, performed and fulfilled its obligations under this Indenture and the other Indenture Documents, and further
stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and the other Indenture Documents and is not in default
in the performance or observance of any of the terms, provisions and conditions of this Indenture or the other Indenture Documents
(or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any,
on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes
to take with respect thereto.


 


(b)         So
long as any of the Notes are outstanding, the Company will deliver to the Trustee, within 30 days of any Officer becoming aware
of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action
the Company is taking or proposes to take with respect thereto.


 


Section 4.05         Taxes.



 


The Company will pay,
and will cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.


 



    	43



    	 



    

 


 


Section 4.06         Stay,
Extension and Usury Laws. 


 


The Company and each
of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of the Guarantors
(to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that
it will not, 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 has been enacted.


 


Section 4.07         Restricted
Payments. 


 


(a)         The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(1)         declare
or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries'
Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) (other than dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company (it being understood for the avoidance of doubt that any right to purchase Equity Interests at a discount
pursuant to an implementation of the Company's existing shelf shareholder rights plan shall be deemed to be a distribution payable
solely in Equity Interests) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the
Company);


 


(2)         purchase,
redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation
involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;


 


(3)         (x)
make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value (i) any Indebtedness of the
Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness
between or among the Company and any of its Restricted Subsidiaries), (ii) the Permitted Convertible Notes or (iii) any other Indebtedness
of the Company except those incurred pursuant to clauses (2), (3), (4), (6) (to the extent the Indebtedness under such clause (6)
is owed to the Company or a Guarantor), (8), (10), (11), (13), (15) and (16) of Section 4.09(b) hereof (such Indebtedness described
in the preceding clauses (i), (ii) and (iii) collectively, “Prepayment Restricted Indebtedness”), in each case
prior to the Stated Maturity thereof, or (y) make any interest payment on any Prepayment Restricted Indebtedness, other than regularly
scheduled interest; or


 


(4)         make
any Restricted Investment


 


(all such payments and
other actions set forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”),


 


unless, at the time of
and after giving effect to such Restricted Payment:


 


(1)         no
Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;


 



    	44



    	 



    

 


(2)         the
Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had
been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and


 


(3)         such
Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted
Subsidiaries since the date of this Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6) and (9)
of paragraph (b) of this Section 4.07), is less than the sum, without duplication, of


 


(A)         50%
of the Consolidated Net Income of the Company for the period (taken as one accounting period) from July 1, 2012 to the end of the
Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus


 


(B)         100%
of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale
of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold
to a Subsidiary of the Company); plus


 


(C)         to
the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated
or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition,
if any) and (ii) the initial amount of such Restricted Investment.


 


Notwithstanding the
foregoing, (x) the aggregate amount of Restricted Payments of the type described in clauses (1) and (2) above made by the Company
(other than if made pursuant to clauses (4), (5), (6) or (9) of paragraph (b) of this Section 4.07) shall not exceed $10.0 million,
whether made pursuant to the Section 4.07(a) or 4.07(b) and (y) the Company may not make any Restricted Payments of the type described
in clause (3) of paragraph (a) of this Section 4.07 except pursuant to clauses (3) and (10) of paragraph (b) of this Section 4.07.


 


(b)         The
provisions of Section 4.07(a) hereof will not prohibit:


 


(1)         the
payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend
or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment
would have complied with the provisions of this Indenture;


 


(2)         [Reserved];


 


(3)         the
repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of (A) Prepayment Restricted Indebtedness
with the net cash proceeds from, or in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness
and (B) the Existing Subordinated Notes;


 



    	45



    	 



    

 


 


(4)         the
payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted
Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;


 


(5)         the
repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent
a portion of the exercise price of those stock options;


 


(6)         the
declaration and payment of customary regularly scheduled or accrued dividends to holders of any class or series of Disqualified
Stock of the Company or any Restricted Subsidiary of the Company issued on or after the date hereof in compliance with Section
4.09;


 


(7)         so
long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of customary regularly
scheduled or accrued dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock)
issued after the date hereof; provided, however, that (A) for the most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock,
after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis (including a pro forma
application of the net proceeds therefrom), the Company would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00 and
(B) the aggregate amount of dividends declared and paid pursuant to this clause (7) does not exceed the net cash proceeds actually
received by the Company from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the date
hereof;


 


(8)         the
payment of dividends on the Company’s common stock of up to 6% per annum of the net proceeds received by the Company from
any public offering of common stock of the Company;


 


(9)         Restricted
Payments by the Company or any Restricted Subsidiary to allow the payment in good faith of cash in lieu of the issuance of fractional
shares upon the exercise of options or warrants or upon the conversion or exchange of Capital Stock of any such Person;


 


(10)        the
repurchase, redemption or other acquisition or retirement for value of any convertible notes in connection with a Change of Control
pursuant to change of control provisions customary for convertible notes; provided that a Change of Control Offer has been
made with respect to such Change of Control and all Notes tendered by Holders of the Notes in connection with such Change of Control
Offer have been repurchased; and


 


(11)        so
long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount
not to exceed $5.0 million since the date hereof.


 


The amount of all Restricted
Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed
to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.


 


Section 4.08        Dividend
and Other Payment Restrictions Affecting Subsidiaries. 


 


(a)         The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist
or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:


 



    	46



    	 



    

 


 


(1)         pay
dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect
to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries;


 


(2)         make
loans or advances to the Company or any of its Restricted Subsidiaries; or


 


(3)         sell,
lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.


 


(b)         The
restrictions in Section 4.08(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:


 


(1)         agreements
governing Existing Indebtedness as in effect on the date of this Indenture;


 


(2)         the
Indenture Documents;


 


(3)         agreements
or instruments governing Indebtedness, Disqualified Stock or Preferred Stock incurred in compliance with Section 4.09 hereof; provided
that the encumbrances or restrictions contained therein, taken as a whole, are not materially more restrictive than those contained
in the Indenture Documents, in each case, as then in effect;


 


(4)         applicable
law, rule, regulation or order, or pursuant to any agreement relating to a judgment, settlement, or compromise of any litigation,
arbitration or other dispute;


 


(5)         any
instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as
in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with
or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to be incurred;


 


(6)         customary
non-assignment provisions in contracts and licenses entered into in the ordinary course of business;


 


(7)         purchase
money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions
on the property purchased or leased of the nature described in Section 4.08(a)(3) hereof;


 


(8)         any
agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending the sale or other disposition;


 


(9)         Permitted
Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness
being refinanced;


 


(10)        Liens
permitted to be incurred under the provisions of Section 4.12 hereof that limit the right of the debtor to dispose of the assets
subject to such Liens;


 



    	47



    	 



    

 


 


(11)         provisions
limiting the disposition or distribution of assets or property in agreements governing Collaboration Transactions, agreements governing
Royalty Transactions, intellectual property licenses, joint venture agreements, asset sale agreements, sale-leaseback agreements,
stock sale agreements, and other similar agreements entered into with the approval of the Company’s Board of Directors, which
limitation is applicable only to the assets that are the subject of such agreements;


 


(12)         restrictions
on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and


 


(13)         any
amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings of any agreements specified
in the preceding clauses (1) through (12); provided that the amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in the applicable original agreement.


 


(c)         For
purposes of determining compliance with this Section 4.08, (i) the priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the
ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to the Company or a Restricted
Subsidiary of the Company to other Indebtedness incurred by the Company or any such Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances.


 


Section 4.09         Incurrence
of Indebtedness and Issuance of Preferred Stock. 


 


(a)         The
Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”)
any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock; provided that the Company may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and the Guarantors may incur Indebtedness (including Acquired Debt) or issue preferred
stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified
Stock or such preferred stock is issued, as the case may be, would have been at least 2.00 to 1.00, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified
Stock or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.


 


(b)         The
provisions of Section 4.09(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively,
“Permitted Debt”):


 


(1)         the
incurrence by the Company or any Guarantor of Indebtedness that is expressly subordinated to the prior payment in full in cash
of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor,
in an aggregate principal amount at any one time outstanding under this clause (1) not to exceed $35.0 million; provided
that such subordinated Indebtedness has a final maturity date that is no earlier than one year after the date on which the Notes
mature;


 



    	48



    	 



    

 


(2)         the
incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness;


 


(3)         the
incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued
on the date hereof;


 


(4)         the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock and Preferred Stock of Restricted
Subsidiaries of the Company (including Capitalized Lease Obligations) to finance (whether prior to or within 270 days after) the
purchase, lease, construction or improvement of property (real or personal) or equipment (whether through the direct purchase of
assets or the Capital Stock of any Person owning such assets (but no other material assets)), including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause
(4), in an aggregate principal amount not to exceed $5.0 million at any time outstanding;


 


(5)         the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clauses (2) (other than the Existing
Subordinated Notes), (3), (4), (5), (14) and (17) of this Section 4.09(b);


 


(6)         the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries; provided, however, that:


 


(a)         if
the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness
must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the
case of the Company, or the Note Guarantee, in the case of a Guarantor; and


 


(b)         (i)
any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than
the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary of the Company,


 


will be deemed, in each case,
to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not
permitted by this clause (6);


 


(7)         the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares
of preferred stock; provided, however, that:


 


(a)          any
subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than
the Company or a Restricted Subsidiary of the Company; and


 


(b)          any
sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the
Company,


 



    	49



    	 



    

 


will be deemed, in each case,
to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (7);


 


(8)         the
incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not
for speculative purposes;


 


(9)         the
guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that
was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed
is subordinated to the Notes, then the Guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;


 


(10)         the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims,
self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;


 


(11)         the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness
is covered within five business days;


 


(12)         [Reserved];


 


(13)         Collaboration
Transactions and Royalty Transactions, to the extent involving an incurrence of Indebtedness;


 


(14)         the
incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt that is not incurred in connection with, or in
contemplation of, the related acquisition; provided, however, that after giving effect to the related acquisition and the Incurrence
of such Indebtedness either: (x) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant; or (y) the Fixed Charge Coverage Ratio
would be greater than immediately prior to such acquisition;


 


(15)         Indebtedness
of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $2.5 million;


 


(16)         Indebtedness
of the Company or any of its Restricted Subsidiaries arising from agreements for adjustment of purchase price, earn-outs, contingent
milestone payments or similar obligations in each case incurred in connection with (a) any disposition or acquisition of any business,
asset, property or Subsidiary of the Company, to the extent the related disposition or acquisition is permitted under this Indenture,
(b) any license arrangement pursuant to which the Company or any of its Restricted Subsidiaries acquires intellectual property
or other rights useful in a Permitted Business; and


 


(17)         the
incurrence by the Company or any of the Guarantors of additional Indebtedness, Disqualified Stock or Preferred Stock of Restricted
Subsidiaries of the Company in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness
incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (17), not
to exceed $10.0 million.


 



    	50



    	 



    

 


         Notwithstanding
anything to the contrary in the foregoing, other than (x) Indebtedness incurred pursuant to clauses (2), (3), (4), (6) (to the
extent the Indebtedness under such clause (6) is owed to the Company or a Guarantor), (8), (10), (11), (13), (15) and (16) of paragraph
(b) of this Section 4.09 and (y) Indebtedness (i) that constitutes an issuance of convertible notes at a rate of interest no higher
than 6.0% per annum, (ii) with an aggregate principal amount at any time outstanding not exceeding $100.0 million, (iii) with no
amortization prior to Stated Maturity other than pursuant to customary change of control provisions, (iv) with a Stated Maturity
that is no earlier than 91 days after the date on which the Notes mature and (v) the Net Proceeds of which are applied in accordance
with Section 4.10 (the “Permitted Convertible Notes”), all Indebtedness incurred pursuant to this covenant shall
be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, will not
provide for amortization prior to Stated Maturity and have a Stated Maturity that is no earlier than 91 days after the date on
which the Notes mature.


 


The Company will not
incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated
in right of payment to any other Indebtedness of the Company or such Guarantor unless such Indebtedness is also contractually subordinated
in right of payment to the Notes and the applicable Note Guarantee on substantially identical terms.


 


For purposes of determining
compliance with this Section 4.09, in the event that an item of proposed Indebtedness (or portion thereof) meets the criteria of
more than one of the categories of Permitted Debt described in clauses (1) through (17) above or is entitled to be incurred pursuant
to Section 4.09(a) hereof, the Company will be permitted to classify such item of Indebtedness (or portion thereof) on the date
of its incurrence, or later reclassify all or a portion of such item of Indebtedness (or portion thereof), in any manner that complies
with this Section 4.09. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest
on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness
due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of
the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock
for purposes of this Section 4.09; provided, in each such case, that the amount of any such accrual, accretion or payment
is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this Section 4.09, the maximum amount
of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values.


 


The amount of any Indebtedness
outstanding as of any date will be:


 


(4)         the
accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;


 


(5)         the
principal amount of the Indebtedness, in the case of any other Indebtedness; and


 


(6)         in
respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:


 


(A)         the
Fair Market Value of such assets at the date of determination; and


 


(B)         the
amount of the Indebtedness of the other Person.


 



    	51



    	 



    

 


 


Section 4.10         Asset
Sales.


 


The Company will not,
and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:


 


(1)         the
Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;


 


(2)         in
the case of Asset Sales other than those constituting Royalty Transactions, at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents; and


 


(3)         if
the Asset Sale would constitute a Change of Control, the Company shall have complied with all of its obligations under Section
4.15 hereof; provided that with respect to such Asset Sale, the Company shall not be required to make an Asset Sale Offer
if a Change of Control Offer has been made.


 


For purposes of this provision,
each of the following shall be deemed to be cash:


 


(a)         any
liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary
(other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that
are assumed by the transferee of any such assets pursuant to a customary novation or assumption agreement that releases the Company
or such Restricted Subsidiary from further liability or that are otherwise cancelled or terminated in connection with the transaction
with such transferee;


 


(b)         any
securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash within 90 days of the receipt thereof, to the extent of the cash
received in that conversion; and


 


(c)         any
stock or assets of the kind referred to in clause (1) or (3) of the next paragraph of this Section 4.10.


 


Within (i) 360 days
after the receipt of any Net Proceeds (other than Applicable Net Royalty Proceeds) from an Asset Sale or Applicable Transaction
described in clause (1) of the definition of Applicable Transactions or (ii) 540 days after receipt of any Net Proceeds from an
Applicable Transaction described in clause (2) of the definition of Applicable Transaction, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply such Net Proceeds:


 


(1)         to
acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect
to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;


 


(2)         to
make a capital expenditure in a Permitted Business;


 


(3)         to
license or acquire intellectual property and other rights in respect of technologies, drug candidates, drugs and assets related
or incidental thereto; or


 



    	52



    	 



    

 


 


(4)         to
make research and development expenditures that in the Company’s good faith judgment are useful with respect to a Permitted
Business.


 


Pending the final application
of any Net Proceeds, the Company may invest the Net Proceeds in any manner that is not prohibited by this Indenture; provided that
Net Proceeds attributable to an Asset Sale of assets, rights or Equity Interests that constitute Collateral may only be invested
in Cash Equivalents that shall be held in an account in which the Collateral Agent has a first priority perfected security interest,
subject to Permitted Liens, for its benefit, the benefit of the Trustee and the benefit of the Holders of the Notes in accordance
with this Indenture and the Collateral Documents; provided further that a binding commitment to apply Net Proceeds as set
forth in clause (1) or (3) above or a statement in an Officer’s Certificate that Net Proceeds will be applied as set forth
in clause (4) above shall be treated as a permitted application of the Net Proceeds from the date of such commitment or statement
so long as the Company or such Restricted Subsidiary enters into such commitment or makes such statement with the good faith expectation
that such Net Proceeds will be applied in a manner consistent with such commitment or statement within 180 days of such commitment
or statement and, in the event such commitment is later cancelled or terminated, or such statement withdrawn, for any reason before
the Net Proceeds are applied in connection therewith, then such Net Proceeds shall constitute Excess Proceeds.


 


Any Net Proceeds from
Asset Sales or Applicable Transactions that are not applied or invested as provided in the second paragraph of this Section 4.10
will constitute “Excess Proceeds” (it being understood that Net Proceeds from an Applicable Transaction described
in clause (3) of the definition of Applicable Transactions shall constitute Excess Proceeds immediately upon receipt). Within five
Business Days after the aggregate amount of Excess Proceeds exceeds $2.5 million, the Company will make an Asset Sale Offer to
all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased with the Excess Proceeds. The offer
price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date
of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of
Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased
on a pro rata basis to the extent practicable, subject to the applicable procedures of the depository. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.


 


The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with the provisions of Section 3.10 hereof or this Section 4.10,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations
under Section 3.10 hereof or this Section 4.10 by virtue of such compliance.


 


Section 4.11         Transactions
with Affiliates. 


 


(a)         The
Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each,
an “Affiliate Transaction”), unless:


 



    	53



    	 



    

 


 


(1)         the
Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and


 


(2)         the
Company delivers to the Trustee:


 


(A)         with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of
$5.0 million, a resolution of the Board of Directors of the Company set forth in an Officer’s Certificate certifying that
such Affiliate Transaction complies with clause (1) of this Section 4.11(a) and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board of Directors of the Company; and


 


(B)         with
respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking firm of national standing, which opinion shall
be conclusive evidence that the standard set forth in clause (1) of this Section 4.11(a) has been satisfied (whether or not such
Affiliate Transaction or series of related Affiliate Transactions involve aggregate consideration in excess of $10.0 million).


 


(b)         The
following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section
4.11(a) hereof:


 


(1)         any
employment agreement, employee benefit plan, officer or director indemnification agreement or any similar arrangement entered into
by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;


 


(2)         transactions
between or among the Company and/or its Restricted Subsidiaries and transactions between or among the Company and/or Restricted
Subsidiaries on the one hand and a Royalty Transaction Subsidiary on the other hand in connection with a Royalty Transaction;


 


(3)         payment
of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company;


 


(4)         any
issuance or sale of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;


 


(5)         Restricted
Payments that do not violate the provisions of Section 4.07 hereof;


 


(6)         pledges
of Equity Interests of Royalty Transaction Subsidiaries; and


 


(7)         loans
or advances to employees in the ordinary course of business not to exceed $2.5 million in the aggregate at any one time outstanding.


 



    	54



    	 



    

 


 


Section 4.12         Liens.



 


The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any
Lien of any kind on any asset now owned or hereafter acquired, except Permitted Liens.


 


Section 4.13         Business
Activities. 


 


The Company will not,
and will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such
extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole.


 


Section 4.14         Corporate
Existence. 


 


Subject to Article
5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect:


 


(1)         its
corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and


 


(2)         the
rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence
of any of its Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders of the Notes.


 


Section 4.15         Offer
to Repurchase Upon Change of Control. 


 


(a)         The
Company shall not consummate any Change of Control unless, no later than substantially concurrently with such consummation, each
Holder will have the right to require the Company to repurchase all or any part of that Holder’s Notes pursuant to a Change
of Control Offer.


 


(b)         At
least 30 days prior to a Change of Control, the Company will make an offer (a “Change of Control Offer”) to
each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest, if any, on the Notes repurchased to the date of purchase, subject to the rights of Holders on the relevant record date
to receive interest due on the relevant interest payment date (the “Change of Control Payment”).


 


(c)         At
least 30 days prior to a Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions
that constitute the Change of Control and stating:


 


(1)         that
the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment;


 


(2)         the
purchase price and the purchase date, which shall be no earlier than 15 days prior to and no later than the date on which such
Change of Control is consummated; provided that if the Change of Control Payment Date is the date of consummation of the
Change of Control, the payment for the repurchase of Notes will be made at a time no later than substantially concurrently with
the consummation of such Change of Control (the “Change of Control Payment Date”);


 



    	55



    	 



    

 


 


(3)         that
any Note not tendered will continue to accrue interest;


 


(4)         that,
unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change
of Control Offer will cease to accrue interest after the Change of Control Payment Date;


 


(5)         that
Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with
the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer,
to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;


 


(6)         that
Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the
Notes purchased; and


 


(7)         that
Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000
in excess thereof.


 


(d)         A
Change of Control Offer may be conditioned upon the occurrence of the related Change of Control.


 


(e)         On
the Change of Control Payment Date, the Company will, to the extent lawful:


 


(1)         accept
for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;


 


(2)         deposit
with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered;
and


 


(3)         deliver
or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate
principal amount of Notes or portions of Notes being purchased by the Company.


 


The Paying Agent will
promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that any such new Notes will be in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date.


 



    	56



    	 



    

 


 


(f)         Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be required to make a Change of Control Offer upon a Change
of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with
the requirements set forth in this Section 4.15 and purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer, or (2) notice of redemption for all of the Notes has been given pursuant to Section 3.07 hereof, unless and until
there is a default in payment of the applicable redemption price.


 


(g)         The
Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change
in Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section
4.15 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached
its obligations under this Section 4.15 by virtue of such compliance.


 


Section 4.16         Royalty
Transactions Repurchase Offer.


 


Within five Business
Days of the receipt of any Net Proceeds of any Royalty Transaction newly entered into by the Company or any of its Restricted Subsidiaries
following the date hereof, the Company shall mail a notice describing the applicable Royalty Transaction and offering to repurchase
Notes (such offer, a “Royalty Transactions Repurchase Offer”) in an amount up to 25% of such Net Proceeds, at
a price of 100% of the principal amount, plus accrued and unpaid interest, if any, to the Repurchase Date (subject to the rights
of Holders on the relevant record date to receive interest due on the relevant interest payment date). Once the aggregate amount
of repurchases completed pursuant to Royalty Transactions Repurchase Offers has reached $25.0 million, the Company’s obligation
to make Royalty Transactions Repurchase Offers will terminate and be of no further force or effect. If any Royalty Transactions
Repurchase Offer would otherwise result in the aggregate amount of all completed repurchases exceeding $25.0 million, the amount
to be repurchased shall be reduced by an amount such that the total of all completed repurchases including pursuant to such Royalty
Transactions Repurchase Offer equals $25.0 million.


 


The Royalty Transactions
Repurchase Offer shall be made to all Holders and will remain open for a period of at least 20 Business Days following its commencement
and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Royalty
Transactions Repurchase Offer Period”). No later than three Business Days after the termination of the Royalty Transactions
Repurchase Offer Period (the “Repurchase Date”), the Company will apply all Applicable Net Royalty Proceeds
(the “Royalty Transactions Repurchase Offer Amount”) to the purchase of Notes or, if less than the Royalty Transactions
Repurchase Offer Amount has been tendered, all Notes tendered in response to the Royalty Transactions Repurchase Offer. Payment
for any Notes so purchased will be made in the same manner as interest payments are made.


 


If the Repurchase Date
is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest
will be payable to Holders who tender Notes pursuant to the Royalty Transactions Repurchase Offer.


 


Upon the commencement
of a Royalty Transactions Repurchase Offer, the Company will send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Royalty Transactions Repurchase Offer. The notice, which will govern the terms of the Royalty Transactions
Repurchase Offer, will state:


 


(1)         that
the Royalty Transactions Repurchase Offer is being made pursuant to this Section 4.16 and the length of time the Royalty Transactions
Repurchase Offer will remain open;


 



    	57



    	 



    

 


 


(2)         the
Royalty Transactions Repurchase Offer Amount, the purchase price and the Repurchase Date;


 


(3)         that
any Note not tendered or accepted for payment will continue to accrue interest;


 


(4)         that,
unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Royalty Transactions Repurchase
Offer will cease to accrue interest after the Repurchase Date;


 


(5)         that
Holders electing to have a Note purchased pursuant to a Royalty Transactions Repurchase Offer may elect to have Notes purchased
in denominations of $2,000, or integral multiples of $1,000 in excess thereof;


 


(6)         that
Holders electing to have Notes purchased pursuant to any Royalty Transactions Repurchase Offer will be required to surrender the
Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry
transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at
least three days before the Repurchase Date;


 


(7)         that
Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the expiration of the Royalty Transactions Repurchase Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;


 


(8)         that,
if the aggregate principal amount of Notes surrendered by holders thereof exceeds the Royalty Transactions Repurchase Offer Amount,
the Trustee will select the Notes to be purchased on a pro rata basis to the extent practicable, subject to applicable procedures
of the Depositary (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000,
or integral multiples of $1,000 in excess thereof, will be purchased); and


 


(9)         that
Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).


 


On or before the Repurchase
Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Royalty
Transactions Repurchase Offer Amount of Notes or portions thereof tendered pursuant to the Royalty Transactions Repurchase Offer,
or if less than the Royalty Transactions Repurchase Offer Amount has been tendered, all Notes tendered, and will deliver or cause
to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating that such Notes
or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.16. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Repurchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted
by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company
in the form of an Authentication Order, will authenticate and mail or deliver (or cause to be transferred by book entry) such new
Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Royalty
Transactions Repurchase Offer on the Repurchase Date.


 



    	58



    	 



    

 


The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Royalty Transactions Repurchase
Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Section 4.16,
the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations
under Section 4.16 hereof by virtue of such compliance.


 


Section 4.17         Additional
Note Guarantees. 


 


If (x) the Company
or any of its Restricted Subsidiaries acquires or creates another Domestic Restricted Subsidiary after the date hereof, (y) the
Company acquires or creates another Foreign Subsidiary that is a Restricted Subsidiary and a Guarantee by such Subsidiary would
not (i) result in material adverse tax consequences under Section 956 of the Internal Revenue Code or any successor provision thereto
or (ii) is permitted under applicable law, or (z) the total assets or revenues of Nektar Therapeutics UK Limited constitute more
than 1.0% of the consolidated total assets or consolidated revenues, respectively, of the Company and a Guarantee by it would not
result in material adverse tax consequences under Section 956 of the Internal Revenue Code or any successor provision thereto,
then that newly acquired or created Domestic Restricted Subsidiary, Foreign Subsidiary or Nektar Therapeutics UK Limited, as applicable,
will within 10 Business Days of the date on which it was acquired or created or, in the case of Nektar Therapeutics UK Limited,
the date on which its total assets or revenues exceed the threshold set forth in clause (z) above, (i) execute and deliver to the
Trustee a supplemental indenture substantially in the form attached hereto as Exhibit E pursuant to which such Domestic Restricted
Subsidiary, Foreign Subsidiary or Nektar UK Limited will Guarantee the Notes, (ii) execute and deliver to the Collateral Agent
joinder agreements or other similar agreements with respect the applicable Collateral Documents (or foreign equivalents, subject
to customary practice in the applicable jurisdiction) and (iii) deliver to the Trustee an Opinion of Counsel that such supplemental
indenture and other documents required to be delivered pursuant to clause (ii) above have been duly authorized, executed and delivered
and constitute legally valid and binding and enforceable obligations (subject to customary qualifications and exceptions). Notwithstanding
anything to the contrary in the foregoing, if any Restricted Subsidiary that is a Foreign Subsidiary owns any intellectual property
that is material to the Company’s business, such Foreign Subsidiary shall become a Guarantor in accordance with the requirements
of this Section 4.17 within 10 Business Days of the acquisition of such intellectual property.


 


Section 4.18         Designation
of Royalty Transaction Subsidiaries. 


 


The Board of Directors
of the Company may designate any newly-formed Subsidiary to be a Royalty Transaction Subsidiary in connection with, or in contemplation
of, a Royalty Transaction.


 


Any designation of
a Subsidiary of the Company as a Royalty Transaction Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified
copy of a resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying
that such designation complied with the requirements specified in the definition of “Royalty Transaction Subsidiary.”
If, at any time, any Royalty Transaction Subsidiary would fail to meet the requirements of a Royalty Transaction Subsidiary, it
will thereafter cease to be a Royalty Transaction Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary
will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted
to be incurred as of such date under Section 4.09 hereof, the Company will be in default of such Section.


 



    	59



    	 



    

 


 


Section 4.19         Maintenance
of Property and Insurance. 


 


The Company will, and
will cause each of its Restricted Subsidiaries to, keep all property material to the operation of the business of the Company and
its Restricted Subsidiaries, taken as a whole, in good working order and condition in all material respects, ordinary wear and
tear and casualty loss excepted; provided that the Company shall not be obligated to comply with the foregoing provisions
of this Section 4.19 to the extent that the failure to do so is not adverse in any material respect to the Holders of the Notes.


 


The Company will, and
will cause each of its Restricted Subsidiaries to, (i) maintain with one or more insurance companies of national standing insurance
on all property material to the operation of the business of the Company and its Restricted Subsidiaries, taken as a whole, in
at least such amounts and against at least such risks as are determined by the Company in good faith to be reasonable and prudent,
taking into account the risks that are usually insured against in the same general area by companies engaged in the same or similar
businesses (in each case, after giving effect to any self-insurance determined by the Company to be reasonable and prudent, taking
into account the practices of similarly situated Persons engaged in the same or similar businesses), and (ii) deliver copies of
all such insurance policies to the Collateral Agent with an endorsement naming the Collateral Agent as a loss payee or additional
insured, as appropriate.


 


Section 4.20         Real
Estate Mortgages and Filings. 


 


With respect to any
real property owned in fee simple by the Company or any Guarantor, where such owned real property has a Fair Market Value in excess
of $5.0 million located in the United States (the “Premises”), the Company or such Guarantor shall use commercially
reasonable efforts to, within 90 days of the later of (x) the date hereof and (y) the acquisition thereof, deliver to the Collateral
Agent:


 


(1)         as
mortgagee, for its benefit, the benefit of the Trustee and the benefit of the Holders of the Notes, fully executed counterparts
of Mortgages, duly executed by the Company or the applicable Guarantor, as the case may be, and corresponding UCC fixture filings,
together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such
Mortgages and corresponding UCC fixture filings as may be necessary to create a valid, perfected Lien, subject to Permitted Liens,
against the Premises purported to be covered thereby;


 


(2)         (lenders’
or mortgagee’s title insurance policies (“Lenders’ Policies”) issued to the Collateral Agent in
an amount equal to 100% of the Fair Market Value of the Premises purported to be covered by the related Mortgages, insuring Collateral
Agent’s interest as mortgagee in such property, which interests are created by the Mortgages and are free and clear of all
Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent commercially available
and issued at reasonable and ordinary rates, customary endorsements and shall be accompanied by evidence of the payment in full
(or satisfactory arrangements for the payment in full) of all premiums thereon; in furtherance of satisfaction of the delivery
obligations in this clause (2), Company shall deliver to the title insurer issuing the Lenders’ Policies such customary affidavits,
certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall
be reasonably required of the title insurer to issue the Lenders’ Policies and endorsements referenced herein with respect
to each of the Premises;


 



    	60



    	 



    

 


(3)         (i)
updated surveys of such Premises, or (ii) the most recent surveys of such Premises, together with either (a) an updated survey
certification in favor of the Collateral Agent from the a licensed surveyor stating that, based on a visual inspection of the applicable
real property and the actual knowledge of the surveyor, there appear to have been no change in the facts depicted in the survey
or (b) an affidavit and/or indemnity from the Company or the applicable Guarantor, as the case may be, stating that, to its actual
knowledge, it has not caused or permitted any change in the facts depicted in the survey, other than, in each case, changes that
do not materially adversely affect the use by the Company or such Guarantor, as applicable, of such Premises for the Company or
such Guarantor’s business as so conducted, or intended to be conducted, at such Premises; and in each case, in form and substance
as may be reasonably requested by the title insurer issuing the Lenders’ Policies so that it may remove the standard survey
and survey-related exceptions from such policies and issue the survey, survey-related, and other endorsements required pursuant
to clause (2) above to such policy;


 


(4)         Opinions
of Counsel in the jurisdictions where such Premises are located, in each case that such Mortgage (i) has been duly authorized,
executed and delivered by the Company or such Guarantor, (ii) constitutes a legal, valid and binding obligation of the Company
or such Guarantor, enforceable against the applicable mortgagor in accordance with its terms, and (iii) creates a valid, perfected
Lien on the Premises purported to be covered thereby; and


 


(5)         In
the event any such Premises is located in a special flood hazard area, evidence of flood insurance.


 


Section 4.21         Minimum
Cash Balance. 


 


The Company will not
permit the aggregate amount of unrestricted cash and Cash Equivalents of the Company and its Restricted Subsidiaries as of the
last day of each of the Company’s two most recently ended fiscal quarters, as shown on the consolidated balance sheets of
the Company set forth in each of the Company’s two most recently filed periodic reports filed with the SEC, to be less than
the relevant amount set forth opposite such fiscal quarter below:


 


	Fiscal Quarter Ending	 	Amount	 
	On or prior to June 30, 2013	 	$	0	 
	Sept 30, 2013 to and including June 30, 2014	 	$	0	 
	Sept 30, 2014 to and including June 30, 2015	 	$	0	 
	Sept 30, 2015 to and including June 30, 2016	 	$	25.0 million	 
	Sept 30, 2016 to and including June 30, 2017	 	$	25.0 million	 



 


Section 4.22         Cash
Reserve Account.


 


Upon consummation of
the offering of the Notes, the Company will enter into an Escrow and Security Agreement (the “Escrow Agreement”),
to be dated as of the date hereof, with the Collateral Agent and Wells Fargo Bank, National Association, as escrow agent (the “Escrow
Agent”), pursuant to which the Company will deposit $25.0 million of the proceeds of the Notes into a segregated escrow
account (the “Cash Reserve Account”). The Company shall maintain in the Cash Reserve Account at all times during
the period set forth below, the amount set forth below opposite such twelve-month period ending June 30 of the following years:


 



    	61



    	 



    

 


	Year	 	 	Amount	 
	2013	 	$	25.0 million	 
	2014	 	$	25.0 million	 
	2015	 	$	25.0 million	 



 


If an Event of Default
has occurred and is continuing, the Trustee may, or at the direction of the holders of at least 30% of the aggregate outstanding
principal amount of the Notes, shall, apply any amounts on deposit in the Cash Reserve Account to any remaining interest payments
on the Notes in inverse order of scheduled payment. Any scheduled interest payments (or portion thereof) so paid shall no longer
be due, on the scheduled date therefor or otherwise. Notwithstanding anything to the contrary herein, with respect to any redemption
of the Notes occurring after the application of such amounts, the otherwise applicable redemption price shall be reduced by the
pro rata amount of prepaid interest from interest payment dates later than the applicable redemption allocable to the amount
of Notes being redeemed. All amounts in the Cash Reserve Account shall be released to the Company on July 20, 2015, after which
such amounts shall not be subject to any restrictions on use other than compliance generally with the applicable covenants under
this Indenture.


 


ARTICLE
5

SUCCESSORS


 


Section 5.01         Merger,
Consolidation, or Sale of Assets.


 


The Company will not,
directly or indirectly: (a) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation);
or (b) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company
and its Restricted Subsidiaries taken as a whole, in one or more related transactions (other than any Royalty Transaction), to
another Person, unless:


 


(1)         the
Company is the surviving corporation or the Person to which such sale, assignment, transfer, conveyance or other disposition has
been made assumes all the obligations of the Company under the Indenture Documents pursuant to a supplemental indenture delivered
to the Trustee, substantially in the form of Exhibit E hereto;


 


(2)         immediately
after such transaction, no Default or Event of Default exists;


 


(3)         the
Company or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made would, on the date
of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at
the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof, or after so giving pro forma effect, the Fixed Charge
Coverage Ratio would be greater than immediately prior to so giving pro forma effect; and


 


(4)         if
the applicable transaction would constitute a Change of Control, the Company shall have complied with all of its obligations under
Section 4.15.


 


In addition, the Company will not, directly
or indirectly, lease all or substantially all of the properties and assets of it and its Restricted Subsidiaries taken as a whole,
in one or more related transactions, to any other Person.


 



    	62



    	 



    

 


Clauses (2) and (3)
of the prior paragraph will not apply to:


 


(i)         a
merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; or


 


(ii)         any
consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the
Company and the Guarantors.


 


Section 5.02         Successor
Corporation Substituted.


 


Upon any consolidation
or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties
or assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the
successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring
to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies
with the provisions of, Section 5.01 hereof.


 


ARTICLE
6

DEFAULTS AND REMEDIES


 


Section 6.01         Events
of Default.


 


Each of the following
is an “Event of Default”:


 


(1)         default
for 10 days in the payment when due of interest on the Notes;


 


(2)         default
in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;


 


(3)         (i)
failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Sections 2.06(b)(4), 3.10, 4.10,
4.15 or 5.01 hereof or (ii) failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Section
4.03(f) hereof and such default continues for a period of 20 days;


 


(4)         failure
by the Company or any of its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the holders of at
least 25% in aggregate principal amount of the Notes then outstanding voting as a single class to comply with any of the other
agreements in the Indenture Documents;


 


(5)         default
under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness
(other than Indebtedness owed to the Company or any Restricted Subsidiary of the Company) for money borrowed by the Company or
any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or Guarantee now exists, or is created after the date of this Indenture, if that default:


 



    	63



    	 



    

 


(A)         is
caused by a failure to pay such Indebtedness at final maturity prior to the expiration of the grace period provided in such Indebtedness
(a “Payment Default”);


 


(B)         results
in the acceleration of such Indebtedness prior to its express maturity; or


 


(C)         permits
the acceleration of such Indebtedness prior to its express maturity and has continued without cure or waiver for a period of 30
days from the date on which such acceleration was first permitted,


 


and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates $15.0 million or more;


 


(6)         failure
by the Company or any of its Restricted Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction
aggregating in excess of $15.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged
liability for in writing), which judgments are not paid, discharged or stayed within a period of 60 days of the entry thereof;


 


(7)         the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of Bankruptcy Law (provided
that such events with respect to a Restricted Subsidiary that is not a Significant Subsidiary shall nonetheless constitute an Event
of Default to the extent such events have had or would reasonably be expected to result in a Material Adverse Effect):


 


(A)         commences
a voluntary case,


 


(B)         consents
to the entry of an order for relief against it in an involuntary case,


 


(C)         consents
to the appointment of a custodian of it or for all or substantially all of its property,


 


(D)         makes
a general assignment for the benefit of its creditors, or


 


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


 


(8)         a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (provided that such events with
respect to a Restricted Subsidiary that is not a Significant Subsidiary shall nonetheless constitute an Event of Default to the
extent such events have had or would reasonably be expected to result in a Material Adverse Effect):


 


(A)         is
for relief against the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;


 



    	64



    	 



    

 


(B)         appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property
of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a Significant Subsidiary; or


 


(C)         orders
the liquidation of the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;


 


and the order or decree remains
unstayed and in effect for 60 consecutive days; or


 


(9)         except
as permitted by this Indenture and the Collateral Documents, with respect to any assets or property having a Fair Market Value
in excess of $2.5 million, individually or in the aggregate, that constitutes or, under this Indenture or the Collateral Documents
is required to constitute, Collateral, (a) any of the Collateral Documents shall for any reason cease to be in full force and effect
in all material respects, or the Company or a Guarantor shall so assert, or (b) any security interest created, or purported to
be created, by any of the Collateral Documents shall cease to be enforceable and of the same effect and priority purported to be
created thereby, except in each case solely as a result of the Collateral Agent taking or refraining from taking any action in
its sole control; and


 


(10)         
except as permitted by this Indenture, any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or
ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Note Guarantee.


 


Section 6.02         Acceleration.


 


In the case of an Event
of Default specified in clause (7) or (8) of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary
of the Company that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice.
If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 30% in aggregate principal amount
of the then outstanding Notes may declare all the Notes to be due and payable immediately.


 


Upon any such declaration,
the Notes shall become due and payable immediately.


 


The Holders of a majority
in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders,
rescind an acceleration and its consequences, if the rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration)
have been cured or waived.


 


Section 6.03         Other
Remedies.


 


If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and
interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.


 



    	65



    	 



    

 


The Trustee may maintain
a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted
by law.


 


Section 6.04         Waiver
of Past Defaults.


 


Holders of not less
than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders
of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an
offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration.
Upon any such waiver, 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 shall extend to any subsequent or other Default or impair any right
consequent thereon.


 


Section 6.05         Control
by Majority.


 


Holders of a majority
in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the
rights of other Holders of Notes or that may involve the Trustee in personal liability.


 


Section 6.06         Limitation
on Suits.


 


A Holder may pursue
a remedy with respect to this Indenture or the Notes only if:


 


(1)         such
Holder gives to the Trustee written notice that an Event of Default is continuing;


 


(2)         Holders
of at least 30% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the
remedy;


 


(3)         such
Holder or Holders offer and, if requested, provide to the Trustee security or indemnity satisfactory to the Trustee against any
loss, liability or expense;


 


(4)         the
Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and


 


(5)         during
such 60-day period, Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with such request.


 


A Holder of a Note
may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.


 



    	66



    	 



    

 


Section 6.07         Rights
of Holders of Notes to Receive Payment.


 


Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.


 


Section 6.08         Collection
Suit by Trustee.


 


If an Event of Default
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of principal of, premium, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.


 


Section 6.09         Trustee
May File Proofs of Claim.


 


The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, 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 to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, 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, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise. Nothing 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 the Notes or the
rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 6.10         Priorities.


 


If the Trustee collects
any money pursuant to this Article 6, it shall pay out the money in the following order:


 


First:         to
the Trustee and the Collateral Agent, their agents and attorneys for amounts due under Section 7.07 hereof, including payment of
all compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the Collateral Agent and the costs
and expenses of collection;


 


Second:         to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any and interest, respectively;
and


 



    	67



    	 



    

 


Third:         to
the Company or to such party as a court of competent jurisdiction shall direct.


 


The Trustee may fix
a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10.


 


Section 6.11         Undertaking
for Costs.


 


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 a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit
by Holders of more than 10% in aggregate principal amount of the then outstanding Notes.


 


ARTICLE
7

TRUSTEE


 


Section 7.01         Duties
of Trustee.


 


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


 


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


 


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


 


(2)         in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee will examine the certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.


 


(c)         The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(1)         this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;


 


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


 



    	68



    	 



    

  


(3)         the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05 hereof.


 


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


 


(d)         Whether
or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.


 


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


 


Section 7.02         Rights
of Trustee.


 


(a)         The
Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the document.


 


(b)         Before
the Trustee acts or refrains from acting, it shall be entitled to receive an Officer’s Certificate or an Opinion of Counsel
or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s
Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel will be full and complete authorization and protection from liability in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.


 


(c)         The
Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any agent appointed
with due care, and the Trustee shall not be responsible for the supervision of officers and employees of such agents or attorneys
or the application of any money by any Agent other than the Trustee.


 


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


 


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


 


(f)         The
rights, privileges, protections, immunities and benefits given to the Trustee, including, its right to be compensated, reimbursed,
and indemnified, and its right to resign, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder
or in any Indenture Document or Collateral Document, including but not limited to its capacities as Paying Agent and Registrar,
and to each agent, custodian and other Person employed to act hereunder or in any Indenture Document or Collateral Document.


 


(g)         The
Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders unless such Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against
the losses, liabilities and expenses that might be incurred by it in compliance with such request or direction.


 



    	69



    	 



    

 


(h)         The
Trustee need not investigate any fact or matter stated in any document delivered to it, but the Trustee, in its discretion or if
directed to do so, may make such further inquiry or investigation into such facts or matters, and, if the Trustee shall determine
in good faith or if directed to do so to make such further inquiry or investigation, it shall be entitled upon reasonable notice
during normal business hours to examine the books, records and premises of the Company and the Guarantors, personally or by agent
or attorney at the sole cost of the Company and the Guarantors and shall incur no liability or additional liability of any kind
by reason of such inquiry or investigation.


 


(i)         The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of
the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.


 


(j)         Any
permissive right or authority granted to the Trustee shall not be construed as a mandatory duty.


 


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


 


(k)          In
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss or profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.


 


(l)         The
Company shall provide prompt written notice to the Trustee of any change to its fiscal year.


 


Section 7.03       Individual
Rights of Trustee.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture
has been qualified under the TIA) or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.


 


Section 7.04       Trustee’s
Disclaimer.


 


The Trustee will not
be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction
under any provision of this Indenture, it will not be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it will not be responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.


 



    	70



    	 



    

 


Section 7.05       Notice
of Defaults.


 


If a Default or Event
of Default occurs and is continuing and if it is known to the Trustee, the Trustee will mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of, premium, if any, or interest on, any Note, the Trustee may withhold the notice if and so long as it in good faith determines
that withholding the notice is in the interests of the Holders of the Notes.


 


Section 7.06       Reports
by Trustee to Holders of the Notes.


 


(a)         Within
60 days after each January 15th beginning with the January 15th following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee will mail to the Holders of the Notes a brief report dated as of such reporting date that complies
with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee will
also transmit by mail all reports as required by TIA § 313(c).


 


(b)         A
copy of each report at the time of its mailing to the Holders of Notes will be mailed by the Trustee to the Company and filed by
the Trustee with the SEC and each stock exchange or market, if any, on which the Notes are listed or quoted in accordance with
TIA § 313(d). The Company will promptly notify the Trustee in writing if the Notes become listed or quoted on any stock
exchange or market or any delisting thereof.


 


Section 7.07       Compensation
and Indemnity.


 


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


 


(b)         The
Company and the Guarantors will jointly and severally indemnify the Trustee against any and all losses, liabilities or expenses
incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense
may be attributable to its negligence or bad faith. The Trustee will notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company or any of the Guarantors of their
obligations hereunder. The Company or such Guarantor will defend the claim and the Trustee will cooperate in the defense. The Trustee
may have separate counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent will not be unreasonably withheld.


 


(c)         The
obligations of the Company and the Guarantors under this Section 7.07 will survive the satisfaction and discharge of this Indenture
or earlier resignation or removal of the Trustee.


  


(d)         To
secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, the Trustee will have a Lien prior
to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest
on particular Notes. Such Lien will survive the satisfaction and discharge of this Indenture or earlier resignation or removal
of the Trustee.


 



    	71



    	 



    

 


(e)         When
the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(9) or (10) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.


 


(f)         The
Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.


 


Section 7.08       Replacement
of Trustee.


 


(a)         A
resignation or removal of the Trustee and appointment of a successor Trustee will become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.


 


(b)         The
Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders
of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:


 


(1)         the
Trustee fails to comply with Section 7.10 hereof;


 


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


 


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


 


(4)         the
Trustee becomes incapable of acting.


 


(c)         If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company will promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal
amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.


 


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


 


(e)         If
the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10
hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.


 


(f)         A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee will mail a notice of its succession to Holders. The retiring
Trustee will promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the benefit
of the retiring Trustee.


 



    	72



    	 



    

 


Section 7.09         Successor
Trustee by Merger, etc.


 


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act will be the successor Trustee.


 


Section 7.10         Eligibility;
Disqualification.


 


There will at all times
be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of
any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth in its most
recent published annual report of condition.


 


This Indenture will
always have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee is subject to TIA § 310(b).


 


Section 7.11         Preferential
Collection of Claims Against Company.


 


The Trustee is subject
to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or
been removed shall be subject to TIA § 311(a) to the extent indicated therein.


 


Section 7.12         Trustee
as Paying Agent and Collateral Agent.


 


References to the Trustee
in Sections 7.01(f), 7.02, 7.03, 7.04, 7.07, 7.08 and 7.09 shall include the Trustee in its role as Paying Agent, as Registrar
and as Collateral Agent.


 


ARTICLE
8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 8.01         Option
to Effect Legal Defeasance or Covenant Defeasance.


 


The Company may at
any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officer’s Certificate, elect
to have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below
in this Article 8.


 


Section 8.02         Legal
Defeasance and Discharge.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations
with respect to all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantors
will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees),
which will thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections
of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes,
the Note Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:


 



    	73



    	 



    

 


(1)         the
rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on,
such Notes when such payments are due from the trust referred to in Section 8.04 hereof;


 


(2)         the
Company’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;


 


(3)         the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company’s and the Guarantors’ obligations
in connection therewith; and


 


(4)         this
Article 8.


 


Subject to compliance
with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option
under Section 8.03 hereof.


 


Section 8.03         Covenant
Defeasance.


 


Upon the Company’s
exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Company and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from each of their obligations under
the covenants contained in Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21 and
4.22 hereof and clause (4) of Section 5.01 hereof with respect to the outstanding Notes on and after the date the conditions set
forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for
all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors
may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference
in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes
and Note Guarantees will be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(5) hereof will not constitute Events of Default.


 


Section 8.04         Conditions
to Legal or Covenant Defeasance.


 


In order to exercise
either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03 hereof:


 


(1)         the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium, if any, and interest
on, the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;


 



    	74



    	 



    

 


(2)         in
the case of an election under Section 8.02 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that:


 


(A)         the
Company has received from, or there has been published by, the Internal Revenue Service a ruling; or


 


(B)         since
the date of this Indenture, there has been a change in the applicable federal income tax law,


 


in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;


 


(3)         in
the case of an election under Section 8.03 hereof, the Company must deliver to the Trustee an Opinion of Counsel confirming that
the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;


 


(4)         no
Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;


 


(5)         such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any agreement
or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound;


 


(6)         the
Company must deliver to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying
or defrauding any creditors of the Company or others; and


 


(7)         the
Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.


 



    	75



    	 



    



  


Section
8.05         Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.


 


Subject to Section
8.06 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04
hereof in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions
of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest.


 


The Company will pay
and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.


 


Notwithstanding anything
in this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 8.04(1) hereof), are in excess of the amount thereof that would then be required to
be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section
8.06         Repayment to Company.


 


Any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, premium, if any,
or interest on, any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and
the Holder of such Note will thereafter be permitted to 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 all liability of the Company as trustee thereof, will thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date specified therein, which will not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company.


 


Section
8.07         Reinstatement.


 


If the Trustee or Paying
Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03 hereof,
as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture and the Notes
and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof,
as the case may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest
on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee or Paying Agent.


 



    	76



    	 



    

 


ARTICLE
9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section
9.01         Without Consent of Holders of Notes.


 


Notwithstanding Section
9.02 of this Indenture, the Company, the Guarantors, if any, and the Trustee may amend or supplement the Indenture Documents without
the consent of any Holder of Note:


 


(1)         to
cure any ambiguity, defect or inconsistency that does not adversely affect the holders of the Notes in any material respect;


 


(2)         to
provide for uncertificated Notes in addition to or in place of certificated Notes;


 


(3)         to
provide for the assumption of the Company’s or a Guarantor’s obligations to the Holders of the Notes and Note Guarantees
by a successor to the Company or such Guarantor pursuant to Article 5 hereof;


 


(4)         to
make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder; or


 


(5)         to
allow any Guarantor to execute a supplemental indenture and/or a Note Guarantee with respect to the Notes or to release a Guarantor
from its Note Guarantee in accordance with the terms of this Indenture.


 


Upon the request of
the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee will not be obligated
to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or
otherwise.


 


Section
9.02         With Consent of Holders of Notes.


 


Except as provided
below in this Section 9.02, the Company, the Guarantors, if any, and the Trustee may amend or supplement the Indenture Documents
with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes voting as a
single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer
for, Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event
of Default in the payment of the principal of, premium, if any, or interest on, the Notes, except a payment default resulting from
an acceleration that has been rescinded) or compliance with any provision of the Indenture Documents may be waived with the consent
of the Holders of a majority in aggregate principal amount of the then outstanding Notes voting as a single class (including, without
limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes).  Section
2.08 hereof shall determine which Notes are considered to be “outstanding” for purposes of this Section 9.02.


 


Upon the written request
of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the
Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture
directly affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but will not be obligated to, enter into such amended or supplemental Indenture.


 



    	77



    	 



    

 


It is not necessary
for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment, supplement
or waiver, but it is sufficient if such consent approves the substance thereof.


 


After an amendment,
supplement or waiver under this Section 9.02 becomes effective, the Company will mail to the Holders of Notes affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject
to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes then outstanding voting
as a single class may waive compliance in a particular instance by the Company with any provision of the Indenture Documents. However,
without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not (with respect to
any Notes held by a non-consenting Holder):


 


(1)         reduce
the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;


 


(2)         reduce
the principal of or change the fixed maturity of any Note or reduce the premium payable upon the redemption of any Note or change
the time at which any Note may be redeemed;


 


(3)         reduce
the rate of or change the time for payment of interest, including default interest, on any Note;


 


(4)         waive
a Default or Event of Default in the payment of principal of, or interest or premium, if any, on, the Notes (except a rescission
of acceleration of the Notes by the holders of at least a majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such acceleration);


 


(5)         make
any Note payable in money other than that stated in the Notes;


 


(6)         make
any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of, or interest or premium, if any, on, the Notes;


 


(7)         waive
a redemption payment with respect to any Note (other than a payment required by Sections 4.10, 4.15 and 4.16 hereof);


 


(8)         release
any Guarantor from any of its obligations under its Note Guarantee or this Indenture, except in accordance with the terms of this
Indenture;


 


(9)         expressly
subordinate the Notes or any Note Guarantees in right of payment, or expressly subordinate the Lien securing the Notes and the
Note Guarantees;


 


(10)        make
any change in the preceding amendment and waiver provisions; or


 



    	78



    	 



    

 


(11)        release
all or substantially all of the Collateral from the Liens securing the Notes.


 


Section
9.03         Revocation and Effect of Consents.


 


Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even
if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke
the consent as to its Note if the Trustee receives written notice of revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every
Holder.


 


Section
9.04         Notation on or Exchange of Notes.


 


The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange
for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the
amendment, supplement or waiver.


 


Failure to make the
appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver.


 


Section
9.05         Trustee to Sign Amendments, etc.


 


The Trustee will sign
any amended or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental indenture until
the Board of Directors of the Company approves it. In executing any amended or supplemental indenture, the Trustee will receive
and (subject to Section 7.01 hereof) will be fully protected in relying upon, in addition to the documents required by Section
13.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the legal, valid and binding
obligation of the Company and any Guarantors party thereto, enforceable against them in accordance with its terms, subject to customary
exceptions, and complies with the provisions of this Indenture.


 


ARTICLE
10

COLLATERAL AND SECURITY


 


Section
10.01         Grant of Security Interest; Collateral Documents.


 


The due and punctual
payment of the principal of and interest, if any, on the Notes when and as the same shall be due and payable, whether on an interest
payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest
(to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Company to the Holders of
Notes or the Trustee under the Indenture Documents, according to the terms hereunder or thereunder, are secured as provided in
the Collateral Documents which the Company has entered into simultaneously with the execution of this Indenture. Each Holder of
Notes, by its acceptance thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation,
the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to
time in accordance with its terms and authorizes and directs the Collateral Agent to enter into the Collateral Documents and to
perform its obligations and exercise its rights thereunder in accordance therewith. The Company will deliver to the Trustee copies
of all documents delivered to the Collateral Agent pursuant to the Collateral Documents, and will do or cause to be done all such
acts and things as may be required by the provisions of the Collateral Documents, to assure and confirm to the Trustee and the
Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof,
as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the
Notes secured hereby, according to the intent and purposes herein expressed. The Company will take, and will cause its Subsidiaries
to take, upon request of the Trustee, any and all actions reasonably required to cause the Collateral Documents to create and maintain,
as security for the Obligations of the Company hereunder, a valid and enforceable perfected first priority Lien in and on all the
Collateral, in favor of the Collateral Agent for its benefit, the benefit of the Trustee and for the benefit of the Holders, superior
to and prior to the rights of all third Persons and subject to no other Liens than Permitted Liens. For the avoidance of doubt,
neither the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral
or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral.


 



    	79



    	 



    

 


Section
10.02         Recording and Opinions.


 


(a)          The
Company will furnish to the Trustee simultaneously with the execution and delivery of this Indenture an Opinion of Counsel with
respect to the Collateral Documents and the Lien created by the Collateral Documents in a form acceptable to the initial purchasers
of the Notes and their counsel.


 


(b)          The
Company will furnish to the Collateral Agent and the Trustee, within 60 days after each January 15th, beginning with the January
15th following the date of this Indenture, an Opinion of Counsel, dated as of such date, either:


 


(1)         (A)
stating that, in the opinion of such counsel, action has been taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of all supplemental indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain the Lien of the Collateral Documents and reciting with respect to the security
interests in the Collateral the details of such action or referring to prior Opinions of Counsel in which such details are given,
and (B) stating that, in the opinion of such counsel, based on relevant laws as in effect on the date of such Opinion of Counsel,
all financing statements and continuation statements have been executed and filed that are necessary as of such date and during
the succeeding 12 months fully to preserve and protect, to the extent such protection and preservation are possible by filing,
the rights of the Holders of Notes and the Collateral Agent and the Trustee hereunder and under the Collateral Documents with respect
to the security interests in the Collateral;


 


(2)         stating
that, in the opinion of such counsel, no such action is necessary to maintain such Lien and assignment.


 


Section
10.03         Release of Collateral.


 


(a)          The
Collateral Agent shall not at any time release Collateral from the security interests created by the Collateral Documents unless
such release is in accordance with the provisions of this Indenture and the applicable Collateral Documents.


 


(b)          The
Collateral Agent shall be entitled to request and rely upon an Officer’s Certificate and/or an Opinion of Counsel in connection
with any release of Collateral from the Lien and security interest created by the Collateral Documents.


 



    	80



    	 



    

 


(c)          At
any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether
by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the Collateral Agent, no release of Collateral
pursuant to the provisions of the Collateral Documents will be effective as against the Holders of Notes.


 


Section
10.04         [Reserved].


 


Section
10.05         [Reserved].


 


Section
10.06         Authorization of Actions to Be Taken by the Trustee Under
the Collateral Documents.


 


Subject to the provisions
of Section 7.01 and 7.02 hereof, the Trustee may, in its sole discretion and without the consent of the Holders of Notes, direct,
on behalf of the Holders of Notes, the Collateral Agent to, take all actions it deems necessary or appropriate in order to:


 


(1)         enforce
any of the terms of the Collateral Documents; and


 


(2)         collect
and receive any and all amounts payable in respect of the Obligations of the Company hereunder.


 


The Trustee will have
power to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Collateral Documents or this Indenture, and such suits and proceedings
as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of Notes in the Collateral
(including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders
of Notes or of the Trustee).


 


Section
10.07         Authorization of Receipt of Funds by the Trustee Under
the Collateral Documents.


 


The Trustee is authorized
to receive any funds for the benefit of the Holders of Notes distributed under the Collateral Documents, and to make further distributions
of such funds to the Holders of Notes according to the provisions of this Indenture.


 


Section
10.08         Termination of Security Interest.


 


Upon the payment in
full of all Obligations of the Company under this Indenture and the Notes, or upon Legal Defeasance, the Trustee will, at the written
request of the Company, deliver a certificate to the Collateral Agent stating that such Obligations have been paid in full, and
instruct the Collateral Agent to release the Liens pursuant to this Indenture and the Collateral Documents.


 



    	81



    	 



    

 


ARTICLE
11

NOTE GUARANTEES


 


Section
11.01         Guarantee.


 


(a)          Subject
to this Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:


 


(1)         
the principal of, premium, if any, and interest on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and


 


(2)         in
case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid
in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.


 


Failing payment when
due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.


 


(b)          The
Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant
that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Indenture Documents.


 


(c)          If
any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.


 


(d)          Each
Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable)
will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will have the right
to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders
under the Note Guarantee.


 



    	82



    	 



    

 


Section
11.02         Limitation on Guarantor Liability.


 


Each Guarantor, and
by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent
and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights
to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent
transfer or conveyance.


 


Section
11.03         Execution and Delivery of Note Guarantee.


 


Each Guarantor hereby
agrees that its execution and delivery of this Indenture or any supplemental indenture in the form of Exhibit E hereto on
behalf of such Guarantor by an Officer thereof in accordance with Section 4.17 hereof shall evidence its Note Guarantee set forth
in this Article 11 without the need for any further notation on the Notes.


 


If an Officer whose
signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note guaranteed by any Guarantor
under its Note Guarantee, the Note Guarantee will be valid nevertheless.


 


The delivery of any
Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in
this Indenture on behalf of the Guarantors.


 


In the event that the
Company or any of its Restricted Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Indenture, if
required by Section 4.17 hereof, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.17
hereof and this Article 11, to the extent applicable.


 


Section
11.04         Guarantors May Consolidate, etc., on Certain Terms.


 


Except as otherwise
provided in Section 11.05 hereof, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another
Guarantor, unless:


 


(1)         immediately
after giving effect to such transaction, no Default or Event of Default exists; and


 


(2)         such
sale or other disposition (which for the avoidance of doubt shall constitute an Asset Sale or, if applicable, a Change of Control)
does not violate Section 4.10 hereof or, if such sale or disposition constitutes a Change of Control, Section 4.15 hereof.


 


Except as set forth
in Articles 4 and 5 hereof, and notwithstanding clause 2 above, nothing contained in this Indenture or in any of the Notes will
prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or will prevent any sale or conveyance
of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor.


 



    	83



    	 



    

 


Section
11.05         Releases.


 


(a)          In
the event of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation
or otherwise, or a sale or other disposition of all of the Capital Stock of any Guarantor, in each case to a Person that is not
(either before or after giving effect to such transactions) the Company or a Restricted Subsidiary of the Company, then such Guarantor
(in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) will be released and relieved of any obligations under its Note Guarantee; provided that the
sale or other disposition (which for the avoidance of doubt shall constitute an Asset Sale or, if applicable, a Change of Control)
does not violate Section 4.10 hereof or, if such sale or disposition constitutes a Change of Control, Section 4.15 hereof. Upon
delivery by the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Company in accordance with the provisions of this Indenture, including without limitation
Section 4.10 hereof or, if such sale or disposition constitutes a Change of Control, Section 4.15 hereof, the Trustee will execute
any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.


 


(b)          Upon
the liquidation or dissolution of such Guarantor where the assets of such Guarantor are conveyed to the Company or a Restricted
Subsidiary; provided that no Default or Event of Default shall occur as a result thereof or has occurred and is continuing,
each Guarantor will be released and relieved of any obligations under its Note Guarantee.


 


(c)          Upon
Covenant Defeasance or Legal Defeasance in accordance with Article 8 hereof or satisfaction and discharge of this Indenture in
accordance with Article 12 hereof, each Guarantor will be released and relieved of any obligations under its Note Guarantee.


 


Any Guarantor not released
from its obligations under its Note Guarantee as provided in this Section 11.05 will remain liable for the full amount of principal
of and interest and premium, if any, on the Notes and for the other obligations of any Guarantor under this Indenture as provided
in this Article 11.


 


ARTICLE
12

satisfaction and discharge


 


Section
12.01          Satisfaction and Discharge.


 


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


 


(1)         either:


 


(a)  all
Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose
payment money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation;
or


 


(b)  all
Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice
of redemption, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense of, the Company, or otherwise or will become due and payable
within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities, or a combination
of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium, if any, and accrued interest to the date of maturity or redemption;


 



    	84



    	 



    

 


(2)         no
Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit);


 


(3)         the
Company or any Guarantor has paid or caused to be paid all sums payable by it under this Indenture; and


 


(4)         the
Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment
of the Notes at maturity or on the redemption date, as the case may be.


 


In addition, the Company must deliver an
Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.


 


Notwithstanding the
satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will survive. In addition, nothing in this Section
12.01 will be deemed to discharge those provisions of Section 7.07 hereof, that, by their terms, survive the satisfaction and discharge
of this Indenture.


 


Section
12.02          Application of Trust Money.


 


Subject to the provisions
of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 12.01 hereof shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.


 


If the Trustee or Paying
Agent is unable to apply any money or Government Securities in accordance with Section 12.01 hereof by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s and any Guarantor’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium, if any, or interest on, any Notes because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities
held by the Trustee or Paying Agent.


 



    	85



    	 



    

 


ARTICLE
13

MISCELLANEOUS


 


Section
13.01          Notice


 


Any notice or communication
by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or by first class
mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day
delivery, to the others’ address:


 


If to the Company and/or any Guarantor:






Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158

Facsimile No.: (___) ___-____

Attention: Gil Labrucherie, Esq


 


With a copy to:

O’Melveny & Myers LLP


 


7 Times Square, #34


New York, New York
10036


 Attention: Sam Zucker, Esq. and Sung Pak, Esq.


 


If to the Trustee:

Wells Fargo Bank, National Association


45 Broadway, 14th Floor

New York, New York 10006


 Facsimile No.: (212) 515-1589

Attention: Corporate Trust Services – Administrator for Nektar Therapeutics


 


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


 


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


 


Any notice or communication
to a Holder will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the Registrar. Failure to mail a notice or communication
to a Holder or any defect in it will not affect its sufficiency with respect to other Holders.


 


If a notice or communication
is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.


 


If the Company mails
a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.


 


Section
13.02          Communication by Holders of Notes with Other Holders of
Notes.


 


Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).


 



    	86



    	 



    

 


Section
13.03          Certificate and Opinion as to Conditions Precedent.


 


Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:


 


(1)         an
Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set
forth in Section 13.04 hereof) stating that, in the opinion of such Officer, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been satisfied; and


 


(2)         an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in
Section 13.04 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.


 


Section
13.04          Statements Required in Certificate or Opinion.


 


Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and must include:


 


(1)         a
statement that the Person making such certificate or opinion has read such covenant or condition;


 


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


 


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


 


(4)         a
statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied.


 


Section
13.05         Rules by Trustee and Agents.


 


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


 


Section
13.06         Force Majeure


 


In no event shall the
Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall
use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.


 



    	87



    	 



    

 


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


 


No past, present or
future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantors under the Indenture Documents or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities
under the federal securities laws.


 


Section
13.08         Governing Law.


 


THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE DOCUMENTS WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section
13.09         No Adverse Interpretation of Other Agreements.


 


This Indenture may
not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this Indenture.


 


Section
13.10         Successors.


 


All agreements of the
Company in the Indenture Documents will bind its successors. All agreements of the Trustee in this Indenture will bind its successors.
All agreements of each Guarantor in the Indenture Documents will bind its successors, except as otherwise provided in Section 11.05
hereof.


 


Section
13.11         Severability.


 


In case any provision
in any of the Indenture Documents is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.


 


Section
13.12         Counterpart Originals.


 


The parties may sign
any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the same agreement.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution
and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signature
of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


 


Section
13.13         Table of Contents, Headings, etc.


 


The Table of Contents 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 of
this Indenture and will in no way modify or restrict any of the terms or provisions hereof.


 



    	88



    	 



    

 


Section
13.14         U.S.A. Patriot Act.


 


The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. 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 U.S.A. Patriot Act.


 



    	89



    	 



    

 


SIGNATURES


 


Dated as of July 11, 2012


 


	 	NEKTAR THERAPEUTICS
	 	 
	 	By:	/s/ John Nicholson
	 	 	Name: John Nicholson
	 	 	Title:  Senior Vice President and Chief Financial Officer


 



    	 



    	 



    

 


	 	  WELLS FARGO BANK, NATIONAL
 ASSOCIATION, as Trustee and Collateral Agent
	 	 	 
	 	By:	/s/ Raymond Delli Colli
	 	 	Name:  Raymond Delli Colli
	 	 	Title:  Vice President


 



    	 



    	 



    

 


	[Face of Note]


 


CUSIP ____________


 


12.000% Senior Secured Notes due 2017


 


	No. ___	$____________


 


[or such other principal amount
as shall be set forth in the Schedule of Exchanges of Interests in the Global Note attached hereto]2


 


NEKTAR THERAPEUTICS


 


promises to pay to [CEDE & CO.]
or registered assigns, the principal sum of ___________ DOLLARS [or such other principal amount as shall be set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto]3 on July 15, 2017.


 


Interest Payment Dates: January 15 and
July 15


 


Record Dates: January 1 and July 1


 


 









 


2
Insert in Global Notes.


 


3
Insert in Global Notes.





 



    	A-1



    	 



    

 


	 	NEKTAR THERAPEUTICS
	 	 	 
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:


 



    	A-2



    	 



    

 


This is one of the Notes referred to in the within-mentioned
Indenture:






WELLS FARGO BANK, NATIONAL ASSOCIATION,

  as Trustee






	By:	 	 
	Authorized Signatory	 
	 	 	 
	Dated:	 	 


 



    	A-3



    	 



    

 


[Back of Note]





12.000% Senior Secured Notes due 2017


 


[Insert the Global Note Legend, if applicable
pursuant to the provisions of the Indenture]


 


[Insert the Private Placement Legend,
if applicable pursuant to the provisions of the Indenture]


 


Capitalized terms used
herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.


 


(1)         Interest.
Nektar Therapeutics, a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Note at 12.000% per annum from ________________ until maturity. The Company will pay interest, semi-annually in arrears
on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an
“Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the
first Interest Payment Date shall be ______.  The Company will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is
2% per annum in excess of the rate then in effect to the extent lawful; it will pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.


 


(2)         Method
of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered
Holders of Notes at the close of business on the January 1 or July 1 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose within or without the City and State of New York, or, at the option of the Company,
payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided
that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium
on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the
Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.


 


(3)         Paying
Agent and Registrar. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act in any such capacity.


 


(4)         Indenture.
The Company issued the Notes under an Indenture dated as of July 11, 2012 (the “Indenture”) among the Company,
the Trustee and the Collateral Agent. The terms of the Notes include those stated in the Indenture and those made part of the Indenture
by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are secured obligations of the Company.


 



    	A-4



    	 



    

 


(5)         Optional
Redemption.


 


(b)          At
any time prior to July 15, 2015, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount
of Notes issued under the Indenture at a redemption price of 112.0% of the principal amount, plus accrued and unpaid interest,
if any, to the redemption date (subject to the rights of holders of Notes on the relevant record date to receive interest due on
the relevant interest payment date), with the net cash proceeds of one or more Public Equity Offerings of the Company; provided
that:


 


(1)         at
least 65% of the aggregate principal amount of Notes originally issued under the Indenture (excluding Notes held by the Company
and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and


 


(2)         the
redemption occurs within 90 days of the date of the closing of such Public Equity Offering, upon not less than 30 nor more than
60 days’ prior notice and otherwise in accordance with the procedures set forth in the Indenture.


 


(c)          At
any time prior to July 15, 2015, the Company may also redeem all or a part of the Notes, upon not less than 30 nor more than 60
days’ prior notice, at a redemption price equal to 100% of the principal amount of Notes redeemed plus the Applicable Premium
as of, and accrued and unpaid interest, if any, to the date of redemption, subject to the rights of holders of Notes on the relevant
record date to receive interest due on the relevant interest payment date.


 


(d)          Except
pursuant to the preceding two paragraphs, the Notes will not be redeemable at the Company’s option prior to July 15, 2015.


 


(e)          On
or after July 15, 2015, the Company may redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice,
at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest, if any,
on the Notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on July 15 of the
years indicated below, subject to the rights of holders of Notes on the relevant record date to receive interest on the relevant
interest payment date:


 


 


	Year	 	Percentage	 
	2015	 	 	109.0	%
	2016	 	 	104.5	%



 


Unless the Company
defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption
on the applicable redemption date.


 


(6)         Mandatory
Redemption.


 


The Company is not
required to make mandatory redemption or sinking fund payments with respect to the Notes.


 



    	A-5



    	 



    

 


(7)         Repurchase
at the Option of Holder.


 


(a)          If
there is a Change of Control, the Company shall not consummate the Change of Control unless at least 30 days prior to the Change
of Control, it has made an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part
(equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest  thereon to the date of purchase,
subject to the rights of Holders on the relevant record date to receive interest due on the relevant interest payment date (the
“Change of Control Payment”); provided that if the Change of Control Payment Date is the date of consummation
of the Change of Control, the payment for the repurchase of Notes will be made at a time no later than substantially concurrently
with the consummation of such Change of Control.  The Company will mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture within the time periods required by the Indenture.


 


(b)          If
the Company consummates any Asset Sales or Applicable Transactions, within five Business Days of each date on which the aggregate
amount of Excess Proceeds exceeds $2.5 million, the Company will commence an offer to all Holders of Notes (an “Asset
Sale Offer”) pursuant to Section 3.10 of the Indenture to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any thereon to the date of purchase, in accordance with the procedures set forth in the Indenture.
To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use such deficiency for any purpose not otherwise prohibited by the Indenture. If the
aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes to be purchased on a pro rata basis to the extent practicable, subject to the applicable procedures of
the Depository. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company
prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “Option
of Holder to Elect Purchase” attached to the Notes.


 


(c)          Within
five Business Days of the receipt of any Net Proceeds of any Royalty Transaction newly entered into by the Company or any of its
Restricted Subsidiaries following the date of the Indenture, the Company shall mail a notice describing the applicable Royalty
Transaction and offering to repurchase Notes (such offer, a “Royalty Transactions Repurchase Offer”) in an amount
up to 25% of such Net Proceeds, at a price of 100% of the principal amount, plus accrued and unpaid interest, if any, to the Repurchase
Date. The Royalty Transactions Repurchase Offer shall be made to all Holders and will remain open for a period of at least 20 Business
Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable
law (the “Royalty Transactions Repurchase Offer Period”). No later than three Business Days after the termination
of the Royalty Transactions Repurchase Offer Period (the “Repurchase Date”), the Company will apply 25% of such
Net Proceeds (the “Royalty Transactions Repurchase Offer Amount”) to the purchase of Notes or, if less than
the Royalty Transactions Repurchase Offer Amount has been tendered, all Notes tendered in response to the Royalty Transactions
Repurchase Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. The Company’s
obligation to make Royalty Transactions Repurchase Offers shall cease once the amount of repurchases completed reaches $25.0 million,
and any applicable Royalty Transactions Repurchase Offer Amount shall be reduced accordingly.


 



    	A-6



    	 



    

 


(8)         Notice
of Redemption. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption
date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction
or discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.


 


(9)         Denominations,
Transfer, Exchange. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples
of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need
not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion
of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15
days before the mailing of a notice of redemption or during the period between a record date and the corresponding Interest Payment
Date.


 


(10)        Persons
Deemed Owners. The registered Holder of a Note shall be treated as its owner for all purposes.


 


(11)        Amendment,
Supplement and Waiver. Subject to certain exceptions, the Indenture, the Notes or the Note Guarantees may be amended
or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes
voting as a single class, and any existing Default or Event or Default or compliance with any provision of the Indenture, the Notes
or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding
Notes voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Notes or the Note Guarantees may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders
of the Notes and Note Guarantees in case of a merger or consolidation, to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder
or to allow any Guarantor to execute a supplemental indenture to the Indenture and/or a Note Guarantee with respect to the Notes
or to release a Guarantor from its Note Guarantee in accordance with the terms of the Indenture.


 



    	A-7



    	 



    

 


(12)        Defaults
and Remedies. Events of Default include: (i) default for 10 days in the payment when due of interest on the Notes; (ii)
default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;
(iii) (x)failure by the Company or any of its Restricted Subsidiaries to comply with the provisions of Sections 2.06(b)(4), 3.10,
4.10, 4.15 or 5.01 of the Indenture or (y) failure by the Company or any of its Restricted Subsidiaries to comply with the provisions
of Section 4.03(f) of the Indenture, and such default continues for a period of 20 days; (iv) failure by the Company or any of
its Restricted Subsidiaries for 60 days after notice to the Company by the Trustee or the holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class to comply with any of the other agreements in the Indenture
Documents; (v) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness (other than Indebtedness owed to the Company or any Restricted Subsidiary of the Company) for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of the indenture, if
that default meets certain criteria set forth in the Indenture; (vi) failure by the Company or any of its Restricted Subsidiaries
to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $15.0 million (net of any
amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not
paid, discharged or stayed within a period of 60 days of the entry thereof; (vii) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries
that, taken together, would constitute a Significant Subsidiary (or such events in respect of Restricted Subsidiaries that are
not Significant Subsidiaries to the extent they have had or would reasonably be expected to result in a Material Adverse Effect);
(viii) except as permitted by the Indenture and the Collateral Documents, with respect to any assets or property having a Fair
Market Value in excess of $2.5 million, individually or in the aggregate, that constitutes or, under the indenture or the Collateral
Documents is required to constitute, Collateral, (a) any of the Collateral Documents shall for any reason cease to be in full force
and effect in all material respects, or the Company or a Guarantor shall so assert, or (b) any security interest created, or purported
to be created, by any of the Collateral Documents shall cease to be enforceable and of the same effect and priority purported to
be created thereby, except in each case solely as a result of the Collateral Agent taking or refraining from taking any action
in its sole control; and (ix) except as permitted by the Indenture, any Note Guarantee is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its Note Guarantee.


 


If any
Event of Default occurs and is continuing, the Trustee or the Holders of at least 30% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee
in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of principal or interest or premium, if any,) if it determines
that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the then outstanding Notes
by notice to the Trustee may, on behalf of the Holders of all of the Notes, rescind an acceleration or waive any existing Default
or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of
interest or premium, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement specifying such Default or Event of Default.


 


(13)        Trustee
Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were
not the Trustee.


 



    	A-8



    	 



    

 


(14)        No
Recourse Against Others. No past, present or future director, officer, employee, incorporator or stockholder of the
Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Indenture
Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the
Notes. The waiver may not be effective to waive liabilities under the federal securities laws.


 


(15)        Authentication.
This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.


 


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


 


(17)        CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as
a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.


 


(18)        GOVERNING
LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE DOCUMENTS WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.


 


The Company will furnish
to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:


 


Nektar Therapeutics


455 Mission Bay Boulevard South

San Francisco, CA 94158

Attention: Gil Labrucherie, Esq


 



    	A-9



    	 



    

 


Assignment
Form


 


To assign this Note,
fill in the form below:


 


	(I) or (we) assign and transfer this Note to:	 
	 	(Insert assignee’s legal name)


  


	 
	(Insert assignee’s soc. sec. or tax I.D. no.)
	 
	 
	 
	 
	 
	 
	 
	 
	(Print or type assignee’s name, address and zip code)


 


and irrevocably appoint ______________________________________________________________________________to
transfer this Note on the books of the Company. The agent may substitute another to act for him.


 


	Date:	 	 


 


	 	Your Signature:	 
	 	(Sign exactly as your name appears on the face of this Note)


 


	Signature Guarantee*:	 	 


 


*           Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 



    	A-10



    	 



    

 


Option of Holder to Elect Purchase


 


If you want to elect
to have this Note purchased by the Company pursuant to Section 4.10, 4.15 or 4.16 of the Indenture, check the appropriate box below:


 





	ØSection 4.10	ØSection 4.15	ØSection 4.16









 


If you want to elect
to have only part of the Note purchased by the Company pursuant to Section 4.10, 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:


 


$_______________


 


	Date:	 	 


 


	 	Your Signature: 	 
	 	(Sign exactly as your name appears on the face of this Note)


 





	 	Tax Identification No.:	 







  


	Signature Guarantee*:	 	 


 


*           Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 



    	A-11



    	 



    

 


Schedule
of Exchanges of Interests in the Global Note *


 


The following exchanges
of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest 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








	*	This schedule should be included only if the Note is issued in global form. 



 




    	A-12



    	 



    

 


EXHIBIT B 


 


FORM OF CERTIFICATE OF TRANSFER


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158


 


Wells Fargo Bank, National Association


as Trustee and Registrar
– DAPS Reorg


MAC N9303-121


608 2nd Avenue
South


Minneapolis, MN 55479


 


Re: 12.000%
Senior Secured Notes due 2017


 


Reference is hereby
made to the Indenture, dated as of July 11, 2012 (the “Indenture”), between, Nektar Therapeutics, as issuer
(the “Company”) and Wells Fargo Bank, National Association as trustee (in such capacity, the “Trustee”)
and collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


___________________,
(the “Transferor”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex
A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to ___________________________
(the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  ̈
Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant
to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933,
as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities
Act.


 



    	B-1



    	 



    

 


2.  ̈
Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive
Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person
in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor
and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed
selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities
Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global
Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.


 


3.  ̈
Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive
Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected
in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that (check one):


 


(a)           ̈
such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)           ̈
such Transfer is being effected to the Company or a subsidiary thereof;


 


or


 


(c)           ̈
such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;


 


or


 


(d)           ̈
such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it
has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies
with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and
the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act.
Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.


 









    	B-2



    	 



    

  


4.  ̈
Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive
Note.


 


(a)  ̈
Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(b)  ̈
Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule
903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes,
on Restricted Definitive Notes and in the Indenture.


 


(c)  ̈
Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with
an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance
with the transfer restrictions contained in the Indenture and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.


 


This certificate and
the statements contained herein are made for your benefit and the benefit of the Company.


 


	 	 
	 	 	[Insert Name of Transferor]
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 


	Signature Guarantee*:	 	 


 


*          Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 


	 	Dated:	 	 


 



    	B-3



    	 



    

 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.          The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)   ̈
a beneficial interest in the:


 


(i)           ̈
 144A Global Note (CUSIP _________), or


 


(ii)          ̈
 Regulation S Global Note (CUSIP _________), or


 


(iii)         ̈
 IAI Global Note (CUSIP _________); or


 


(b)  ̈
a Restricted Definitive Note.


 


2.          After
the Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)   ̈
a beneficial interest in the:


 


(i)           ̈
 144A Global Note (CUSIP _________), or


 


(ii)          ̈
 Regulation S Global Note (CUSIP _________), or


 


(iii)         ̈
 IAI Global Note (CUSIP _________); or


 


(iv)         ̈
 Unrestricted Global Note (CUSIP _________); or


 


(b)  ̈
a Restricted Definitive Note; or


 


(c)  ̈
an Unrestricted Definitive Note,


 


in accordance with
the terms of the Indenture.


 



    	B-4



    	 



    

 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158


 


Wells Fargo Bank, National Association


as Trustee and Registrar
– DAPS Reorg


MAC N9303-121


608 2nd Avenue
South


 Minneapolis, MN 55479


 


Re: 12.000%
Senior Secured Notes due 2017


 


(CUSIP ____________)


 


Reference is hereby
made to the Indenture, dated as of July 11, 2012 (the “Indenture”), between, Nektar Therapeutics, as issuer
(the “Company”) and Wells Fargo Bank, National Association as trustee (in such capacity, the “Trustee”)
and collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


__________________________,
(the “Owner”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange,
the Owner hereby certifies that:


 


1.          Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note


 


(a)  ̈
Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note.
In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest
in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “Securities
Act”) and (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act.


 


(b)  ̈
Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection
with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the
Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired
in compliance with any applicable blue sky securities laws of any state of the United States.


 



    	C-1



    	 



    

 


(c)  ̈
Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection
with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend
are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the United States.


 


(d)  ̈
Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s
Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive
Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.


 


2.          Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes


 


(a)  ̈
Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with
the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal
principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive
Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)  ̈
Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with
the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]  ̈
144A Global Note,  ̈ Regulation S Global Note,  ̈
IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.


 


This certificate and
the statements contained herein are made for your benefit and the benefit of the Company.


 


	 	 	 
	 	 	[Insert Name of Transferor]
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 



    	C-2



    	 



    

 


	Signature Guarantee*:	 	 


 


*           Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 


	Dated:	 	 


 


 



    	C-3



    	 



    

 


EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158


 


Wells Fargo Bank, National Association


as Trustee and Registrar
– DAPS Reorg


MAC N9303-121


608 2nd Avenue
South


 Minneapolis, MN 55479


 


Re: 12.000%
Senior Secured Notes due 2017


 


Reference is hereby
made to the Indenture, dated as of July 11, 2012 (the “Indenture”), between, Nektar Therapeutics, as issuer
(the “Company”) and Wells Fargo Bank, National Association as trustee (in such capacity, the “Trustee”)
and collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.


 


In connection with
our proposed purchase of $____________ aggregate principal amount of:


 


(a)  ̈
a beneficial interest in a Global Note, or


 


(b)  ̈
a Definitive Note,


 


we confirm that:


 


1.          We
understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes
or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).


 


2.          We
understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do
so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form reasonably acceptable to the Company to the effect that
such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation
S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses (A) through (D) of this paragraph
a notice advising such purchaser that resales thereof are restricted as stated herein.


 



    	D-1



    	 



    

 


3.          We
understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and
the Company such certifications and, except in the case of a resale pursuant to Rule 144 under the Securities Act, legal opinions
and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.


 


4.          We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits
and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.


 


5.          We
are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of
which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion; provided
that, by making such representations, we do not agree to hold any of the Notes for any minimum or other specific term and reserve
the right to dispose of the Notes at any time in accordance with an exemption under the Securities Act or pursuant to an effective
registration statement thereunder.


 


You and the Company
are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.


 


	 	 
	 	 	[Insert Name of Accredited Investor]
	 	 	 
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


 


	Signature Guarantee*:	 	 


 


*           Participant
in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).


 


	Dated:	 	 


 


 



    	D-2



    	 



    

 


EXHIBIT E


 


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]


 


Supplemental
Indenture (this “Supplemental Indenture”), dated as of ________________, 20__, among __________________
(the “Guaranteeing Subsidiary”), a subsidiary of Nektar Therapeutics (or its permitted successor), a Delaware
corporation (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein)
and Wells Fargo Bank, National Association, as trustee (the “Trustee”) and collateral agent under the Indenture
referred to below.


 


WITNESSETH


 


WHEREAS, the Company
has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of July 11, 2012
providing for the issuance of 12.000% Senior Secured Notes due 2017(the “Notes”);


 


WHEREAS, the Indenture
provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and


 


WHEREAS, pursuant to
Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.


 


NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:


 


1.          Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.


 


2.          Agreement
to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to
the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 11 thereof.


 


4.          No
Recourse Against Others. No past, present or future director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under
the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.


 


5.          NEW
YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


6.          Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.


 



    	 



    	 



    

 


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


 


8.          The
Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency
of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by
the Guaranteeing Subsidiary and the Company.


 



    	E-2



    	 



    

 


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


 


Dated: _______________,
20___


 


	 	[Guaranteeing Subsidiary]
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 	 
	 	NEKTAR THERAPEUTICS
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 	 
	 	[Existing Guarantors]
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	  as Trustee
	 	 	 
	 	By:	 
	 	 	Authorized Signatory


 



    	E-3