Exhibit 4.2 





	 



  


ENPHASE
ENERGY, INC.



AND



U.S. BANK NATIONAL ASSOCIATION,



as Trustee



INDENTURE



Dated as of March 1, 2021


 


0%
Convertible Senior Notes due 2028 





	 





    


     


    


TABLE
OF CONTENTS





 



   




	 	Page
	 
	Article
                                         1

                                                                                Definitions

	Section
    1.01 .  Definitions	1
	Section
    1.02 .  References to Interest	12
	 	 
	Article
                                         2

                                                                                Issue,
                                         Description, Execution, Registration and Exchange of Notes

	 
	Section
    2.01 .  Designation and Amount	13
	Section
    2.02 .  Form of Notes	13
	Section
    2.03 .  Date and Denomination of Notes; No Regular Interest; Payments of Special Interest and Defaulted Amounts	14
	Section
    2.04 .  Execution, Authentication and Delivery of Notes	15
	Section
    2.05 .  Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	16
	Section
    2.06 .  Mutilated, Destroyed, Lost or Stolen Notes	22
	Section
    2.07 .  Temporary Notes	23
	Section
    2.08 .  Cancellation of Notes Paid, Converted, Etc	23
	Section
    2.09 .  CUSIP Numbers	23
	Section
    2.10 .  Additional Notes; Repurchases	24
	 	 
	Article
                                         3

                                                                                Satisfaction
                                         and Discharge

	 
	Section
    3.01 .  Satisfaction and Discharge	24
	 	 
	Article
                                         4

                                                                                Particular
                                         Covenants of the Company

	 
	Section
    4.01 .  Payment of Principal and Special Interest	25
	Section
    4.02 .  Maintenance of Office or Agency	25
	Section
    4.03 .  Appointments to Fill Vacancies in Trustee’s Office	25
	Section
    4.04 .  Provisions as to Paying Agent	26
	Section
    4.05 .  Existence	27
	Section
    4.06 .  Rule 144A Information Requirement and Annual Reports	27
	Section
    4.07 .  Stay, Extension and Usury Laws	29
	Section
    4.08 .  Compliance Certificate; Statements as to Defaults	29
	Section
    4.09 .  Further Instruments and Acts	29





     i


     


    


	Article
                                         5

                                                                                Lists
                                         of Holders and Reports by the Company and the Trustee

	 
	Section
    5.01 .  Lists of Holders	29
	Section
    5.02 .  Preservation and Disclosure of Lists	30
	 	 
	Article
                                         6

                                                                                Defaults
                                         and Remedies

	 
	Section
    6.01 .  Events of Default	30
	Section
    6.02 .  Acceleration; Rescission and Annulment	31
	Section
    6.03 .  Special Interest	32
	Section
    6.04 .  Payments of Notes on Default; Suit Therefor	33
	Section
    6.05 .  Application of Monies Collected by Trustee	34
	Section
    6.06 .  Proceedings by Holders	35
	Section
    6.07 .  Proceedings by Trustee	36
	Section
    6.08 .  Remedies Cumulative and Continuing	36
	Section
    6.09 .  Direction of Proceedings and Waiver of Defaults by Majority of Holders	37
	Section
    6.10 .  Notice of Defaults	37
	Section
    6.11 .  Undertaking to Pay Costs	37
	 	 
	Article
                                         7

                                                                                Concerning
                                         the Trustee

	 
	Section
    7.01 .  Duties and Responsibilities of Trustee	38
	Section
    7.02 .  Reliance on Documents, Opinions, Etc	39
	Section
    7.03 .  No Responsibility for Recitals, Etc	40
	Section
    7.04 .  Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes	40
	Section
    7.05 .  Monies and Shares of Common Stock to Be Held in Trust	41
	Section
    7.06 .  Compensation and Expenses of Trustee	41
	Section
    7.07 .  Officer’s Certificate as Evidence	42
	Section
    7.08 .  Eligibility of Trustee	42
	Section
    7.09 .  Resignation or Removal of Trustee	42
	Section
    7.10 .  Acceptance by Successor Trustee	43
	Section
    7.11 .  Succession by Merger, Etc	44
	Section
    7.12 .  Trustee’s Application for Instructions from the Company	44
	 	 
	Article
                                         8

                                                                                Concerning
                                         the Holders

	 
	Section
    8.01 .  Action by Holders	44
	Section
    8.02 .  Proof of Execution by Holders	45
	Section
    8.03 .  Who Are Deemed Absolute Owners	45
	Section
    8.04 .  Company-Owned Notes Disregarded	45
	Section
    8.05 .  Revocation of Consents; Future Holders Bound	46





     ii


     


    


	Article
                                         9

                                                                                Holders’
                                         Meetings

	 
	Section
    9.01 .  Purpose of Meetings	46
	Section
    9.02 .  Call of Meetings by Trustee	47
	Section
    9.03 .  Call of Meetings by Company or Holders	47
	Section
    9.04 .  Qualifications for Voting	47
	Section
    9.05 .  Regulations	47
	Section
    9.06 .  Voting	48
	Section
    9.07 .  No Delay of Rights by Meeting	48
	 	 
	Article
                                         10

                                                                                Supplemental
                                         Indentures

	 
	Section
    10.01 .  Supplemental Indentures Without Consent of Holders	48
	Section
    10.02 .  Supplemental Indentures with Consent of Holders	50
	Section
    10.03 .  Effect of Supplemental Indentures	51
	Section
    10.04 .  Notation on Notes	51
	Section
    10.05 .  Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	51
	 	 
	Article
                                         11

                                                                                Consolidation,
                                         Merger, Sale, Conveyance and Lease

	 
	Section
    11.01 .  Company May Consolidate, Etc. on Certain Terms	52
	Section
    11.02 .  Successor Corporation to Be Substituted	52
	Section
    11.03 .  Opinion of Counsel to Be Given to Trustee	53
	 	 
	Article
                                         12

                                                                                Immunity
                                         of Incorporators, Stockholders, Officers and Directors

	 
	Section
    12.01 .  Indenture and Notes Solely Corporate Obligations	53
	 	 
	Article
                                         13

                                                                                [Intentionally
                                         Omitted]

	 
	Article
                                         14

                                                                                Conversion
                                         of Notes

	 
	Section
    14.01 .  Conversion Privilege	53
	Section
    14.02 .  Conversion Procedure; Settlement Upon Conversion	56
	Section
    14.03 .  Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental
    Changes or Redemption Notice	61
	Section
    14.04 .  Adjustment of Conversion Rate	63
	Section
    14.05 . Adjustments of Prices	72
	Section
    14.06 .  Shares to Be Fully Paid	72





     iii


     


    


	Section
    14.07 .  Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.	72
	Section
    14.08 .  Certain Covenants	74
	Section
    14.09 .  Responsibility of Trustee	74
	Section
    14.10 .  Notice to Holders Prior to Certain Actions	75
	Section
    14.11 .  Stockholder Rights Plans	75
	 	 
	Article
                                         15

                                                                                Repurchase
                                         of Notes at Option of Holders

	 
	Section
    15.01 .  Intentionally Omitted.	76
	Section
    15.02 .  Repurchase at Option of Holders Upon a Fundamental Change	76
	Section
    15.03 .  Withdrawal of Fundamental Change Repurchase Notice	78
	Section
    15.04 .  Deposit of Fundamental Change Repurchase Price	79
	Section
    15.05 .  Covenant to Comply with Applicable Laws Upon Repurchase of Notes	79
	 	 
	Article
                                         16

                                                                                Optional
                                         Redemption

	 
	Section
    16.01 .  Optional Redemption	80
	Section
    16.02 .  Notice of Optional Redemption; Selection of Notes.	80
	Section
    16.03 .  Payment of Notes Called for Redemption	81
	Section
    16.04 .  Restrictions on Redemption	82
	 	 
	Article
                                         17

                                                                                Miscellaneous
                                         Provisions

	 
	Section
    17.01 .  Provisions Binding on Company’s Successors	82
	Section
    17.02 .  Official Acts by Successor Corporation	82
	Section
    17.03 .  Addresses for Notices, Etc	82
	Section
    17.04 .  Governing Law; Jurisdiction	83
	Section
    17.05 .  Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	84
	Section
    17.06 .  Legal Holidays	84
	Section
    17.07 .  No Security Interest Created	84
	Section
    17.08 .  Benefits of Indenture	84
	Section
    17.09 .  Table of Contents, Headings, Etc	84
	Section
    17.10 .  Authenticating Agent	85
	Section
    17.11 .  Execution in Counterparts	86
	Section
    17.12 .  Severability	86
	Section
    17.13 .  Waiver of Jury Trial	86
	Section
    17.14 .  Force Majeure	86
	Section
    17.15 .  Calculations	86
	Section
    17.16 .  U.S.A. Patriot Act	86
	Section
    17.17 .  Tax Withholding	87




     iv


     


    


EXHIBIT


 





	Exhibit A	Form of Note	A-1





     v


     


    


INDENTURE,
dated as of March 1, 2021, between ENPHASE ENERGY, INC., a Delaware corporation, as issuer (the “Company”,
as more fully set forth in Section 1.01) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the
 “Trustee”, as more fully set forth in Section 1.01).


 


W
I T N E S S E T H:


 


WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance of its 0% Convertible Senior Notes due 2028 (the
 “Notes”), initially in an aggregate principal amount not to exceed $575,000,000 (as increased by an amount
equal to the aggregate principal amount of any additional Notes purchased by the Initial Purchasers pursuant to the exercise of
their over-allotment option as set forth in the Purchase Agreement), and in order to provide the terms and conditions upon which
the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;
and


 


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


 


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


 


NOW,
THEREFORE, THIS INDENTURE WITNESSETH:


 


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


 


Article
1

Definitions


 


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




    1


     


    


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


 


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


 


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


 


“Board
of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it
hereunder.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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




    2


     


    


“Common
Stock” means the common stock of the Company, par value $0.00001 per share, at the date of this Indenture, subject to
Section 14.07.


 


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


 


“Company
Order” means a written order of the Company, signed by (a) the Company’s Chief Executive Officer, Chief Financial
Officer, President or any Vice President (whether or not designated by a number or numbers or word or words added before or after
the title “Vice President”) and (b) any such other Officer designated in clause (a) of this definition or the Company’s
Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary, and delivered to the Trustee.


 


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


 


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


 


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


 


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


 


“Conversion
Rate” shall have the meaning specified in Section 14.01


 


“Corporate
Trust Office” means the designated office of the Trustee at which at any time this Indenture shall be administered,
which office at the date hereof is located at 1 California Street, Suite 1000, San Francisco, California 94111, Attention: Global
Corporate Trust Services or such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the designated corporate trust office of any successor trustee (or such other address as such successor trustee may
designate from time to time by notice to the Holders and the Company).


 


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


 


“Daily
Conversion Value” means, for each of the 20 consecutive Trading Days during the Observation Period, 5.0% of the product
of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.


 


“Daily
Measurement Value” means the Specified Dollar Amount (if any), divided by 20.




    3


     


    


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







 


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


 


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


 


“Daily
VWAP” means the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP”
on Bloomberg page “ENPH <equity> AQR” (or its equivalent successor if such page is not available) in respect
of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading
Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common Stock on such Trading
Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained
for this purpose by the Company). The “Daily VWAP” shall be determined without regard to after-hours trading
or any other trading outside of the regular trading session trading hours.


 


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


 


“Defaulted
Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change
Repurchase Price, principal and Special Interest, if any) that are payable but are not punctually paid or duly provided for.


 


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


 


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


 


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


 


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


 


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




    4


     


    


“Ex-Dividend
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable
market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if
applicable, from the seller of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by
such exchange or market.


 


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


 


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


 


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


 


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


 


“Form
of Notice of Conversion” shall mean the “Form of Notice of Conversion” attached as Attachment 1 to the Form
of Note attached hereto as Exhibit A.


 


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


 


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


 


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




    5


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Initial
Purchasers” means Barclays Capital Inc., BofA Securities, Inc. and Goldman Sachs & Co. LLC.




    6


     


    


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


 


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


 


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


 


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


 


“Maturity
Date” means March 1, 2028.


 


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


 


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


 


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


 


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


 


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


 


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




    7


     


    

“Observation
Period” with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion
Date occurs prior to the Observation Period Threshold Date, the 20 consecutive Trading Day period beginning on, and including,
the second Trading Day immediately succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs on or after the
date of the Company’s issuance of a Redemption Notice with respect to the Notes pursuant to Section 16.02 and prior
to the relevant Redemption Date, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled Trading
Day immediately preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or
after the Observation Period Threshold Date, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled Trading
Day immediately preceding the Maturity Date. 


 


“Observation
Period Threshold Date” means the date that is 25 Scheduled Trading Days preceding the Maturity Date.


 


“Offering
Memorandum” means the preliminary offering memorandum dated February 24, 2021, as supplemented by the related pricing
term sheet dated February 24, 2021, relating to the offering and sale of the Notes.


 


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


 


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


 


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


 


“Opinion
of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company,
that is delivered to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth
therein. Each such opinion shall include the statements provided for in Section 17.05 if and to the extent required by the
provisions of such Section 17.05.


 


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


 


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


 


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


 


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




    8


     


    


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


 


(d)       Notes
converted pursuant to Article 14 and required to be canceled pursuant to Section 2.08;


 


(e)       Notes
redeemed pursuant to Article 16; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Purchase
Agreement” means that certain Purchase Agreement, dated as of February 24, 2021, among the Company and the Initial Purchasers.


 


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


 


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




    9


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Settlement
Method” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement,
as elected (or deemed to have been elected) by the Company, in accordance with Article 14.


 


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


 


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




    10


     


    


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


 


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


 


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


 


“Specified
Dollar Amount” means, in respect of Notes as to which Combination Settlement applies, the maximum cash amount per $1,000
principal amount of such Notes to be received upon conversion as specified in the related Settlement Notice or as otherwise deemed
elected by the Company.


 


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


 


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


 


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


 


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


 


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




    11


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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




    12


     


    


Article
2

Issue, Description, Execution, Registration and Exchange of Notes


 


Section
2.01. Designation and Amount. The Notes shall be designated as the “0% Convertible Senior Notes due 2028.”
The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $575,000,000
(as increased by an amount equal to the aggregate principal amount of any additional Notes purchased by the Initial Purchasers
pursuant to the exercise of their over-allotment option as set forth in the Purchase Agreement), subject to Section 2.10
and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes
to the extent expressly permitted hereunder. The Notes to be issued on the date of this Indenture will be represented by one or
more Global Notes.


 


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


 


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


 


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


 


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




    13


     


    


Section
2.03. Date and Denomination of Notes; No Regular Interest; Payments of Special Interest and Defaulted Amounts. (a) The
Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and multiples thereof.
Each Note shall be dated the date of its authentication and shall not bear regular interest and the principal amount of the Notes
shall not accrete. Special Interest on the Notes, if any, shall be computed on the basis of a 360-day year composed of twelve
30-day months and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.


 


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


 


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


 


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




    14


     


    


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


 


Section
2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary
or any of its Executive or Senior Vice Presidents.


 


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


 


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




    15


     


    


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


 


Section
2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause
to be kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of
the Company designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register
shall be in written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee
is hereby initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes
as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.


 


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


 


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


 


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


 


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


 


None
of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer
of (i) any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered
for conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article
15 or (iii) any Notes selected for redemption in accordance with Article 16, except the unredeemed portion of any Note being
redeemed in part.




    16


     


    


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


 


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


 


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


 


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



    17


     


    


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


 


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


 


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


 


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


 


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


 


(C)       TO
A PERSON IT REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


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


 


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


 


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




    18


     


    


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


 


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


 


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


 


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




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


 


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


 


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


 


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


 


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


 


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




    20


     


    


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


 


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


 


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


 


(C)       TO
A PERSON IT REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR


 


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


 


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


 


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




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


 


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


 


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


 


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




    22


     


    


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


 


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


 


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




    23


     


    


Section
2.10. Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding Section
2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other
than differences in the issue price and any Special Interest accrued prior to the issue date of such additional Notes and, if
applicable, restrictions on transfer of such additional Notes (including pursuant to Section 2.05 hereunder)) in an unlimited
aggregate principal amount; provided that no Event of Default has occurred and is continuing; provided further that
if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes,
such additional Notes shall have one or more separate CUSIP numbers. Prior to the issuance of any such additional Notes, the Company
shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate
and Opinion of Counsel to cover such matters applicable to the issuance of Additional Notes, in addition to those required by
Section 17.05. In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether
such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries
or through a private or public tender or exchange offer or through counterparties to private agreements, including by cash-settled
swaps or other derivatives. The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled
swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 2.08 and such
Notes shall no longer be considered outstanding under this Indenture upon their surrender to the Trustee.


 


Article
3

Satisfaction and Discharge


 


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




    24


     


    


Article
4

Particular Covenants of the Company


 


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


 


Section
4.02. Maintenance of Office or Agency. The Company will maintain in the United States of America so designated by the Trustee,
an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment
or repurchase (“Paying Agent”) or for conversion (“Conversion Agent”) and where notices
and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office or the office or agency of the Trustee in
the United States of America so designated by the Trustee as a place where Notes may be presented for payment or for registration
of transfer.


 


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


 


The
Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate
Trust Office (or such office as the Trustee may designate in writing) as the office or agency in the United States of America
where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase or for conversion
and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served.


 


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




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


 


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


 


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


 


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


 


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


 


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


 


(c)           
Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining
a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums
or amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts
to be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent
to the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums
or amounts. Upon the occurrence of any event specified in Section 6.01(i) or Section 6.01(j), the Trustee
shall automatically become the Paying Agent.




    26


     


    


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


 


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


 


Section
4.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company shall, so long as any of the Notes or the shares of Common Stock issuable upon conversion
thereof shall, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities
Act, promptly provide to the Trustee and will, upon written request, provide to any Holder, beneficial owner or prospective purchaser
of such Notes or the shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule
144A.


 


(b)           
The Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission (giving effect
to any grace period provided by Rule 12b-25 under the Exchange Act), copies of any documents or reports that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or
reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission). Any such document
or report that the Company files with the Commission via the Commission’s EDGAR system shall be deemed to be filed with
the Trustee for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system, it being understood
that the Trustee shall not be responsible for determining whether such filings have been made.


 


(c)           
Delivery of the reports and documents described in subsection (b) above to the Trustee is for informational purposes only,
and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable
from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which
the Trustee is entitled to conclusively rely on an Officer’s Certificate).




    27


     


    


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


 


(e)           
If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been removed, the Notes
are assigned a restricted CUSIP number or such Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than
the Company’s Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately
preceding (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or such Notes) as of the 365th
day after the last date of original issuance of the Notes, the Company shall pay Special Interest on the Notes at a rate equal
to 0.50% per annum of the principal amount of Notes outstanding until the restrictive legend on such Notes has been removed in
accordance with Section 2.05(c), such Notes are assigned an unrestricted CUSIP number and such Notes are freely tradable
pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates
at any time during the three months immediately preceding) (without restrictions pursuant to U.S. securities laws or the terms
of this Indenture or such Notes).


 


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


 


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


 


(h)           
If Special Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver
to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Special Interest that is payable and
(ii) the date on which such Special Interest is payable. Unless and until a Responsible Officer of the Trustee receives at the
Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no such Special Interest is payable. If
the Company has paid Special Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s
Certificate setting forth the particulars of such payment. The Trustee shall not at any time be under any duty or responsibility
to any Holder to determine the Special Interest or calculate the amount of Special Interest owed, or the method employed in such
calculation of Special Interest.




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


 


Section
4.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2021) an Officer’s
Certificate stating whether the signers thereof have knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so, specifying each such failure and the nature thereof.


 


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


 


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


 


Article
5

Lists of Holders and Reports by the Company and the Trustee


 


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




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


 


Article
6

Defaults and Remedies


 


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


 


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


 


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


 


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


 


(d)           
failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c) or notice of a Make-Whole
Fundamental Change in accordance with Section 14.03(b), in each case when due;


 


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


 


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


 


(g)           
default by the Company or any Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which
there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $75,000,000
(or its foreign currency equivalent) in the aggregate of the Company and/or any such Subsidiary, whether such indebtedness now
exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting
a failure to pay the principal of any such indebtedness when due and payable at its stated maturity, upon required repurchase,
upon declaration of acceleration or otherwise and, in the cases of clauses (i) and (ii), such acceleration shall not have been
rescinded or annulled or such failure to pay or default shall not have been cured or waived, or such indebtedness is not paid
or discharged, as the case may be, within 30 days of such acceleration or failure to pay, as applicable;


 


(h)           
a final judgment or judgments for the payment of $75,000,000 (or its foreign currency equivalent) or more (excluding any amounts
covered by insurance) in the aggregate rendered against the Company or any Subsidiary of the Company, which judgment is not discharged,
bonded, paid, waived or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal
has commenced, or (ii) the date on which all rights to appeal have been extinguished;




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


 


(j)           
an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period of 30 consecutive days.


 


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


 


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




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Section
6.03. Special Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company
elects, the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set
forth in Section 4.06(b) shall, for the first 270 days after the occurrence of such an Event of Default (and, for the avoidance
of doubt, giving effect to the 60-day period set forth in Section 6.01(f)), consist exclusively of the right to receive Special
Interest on the Notes at a rate equal to (i) 0.25% per annum of the principal amount of the Notes outstanding for each day
during the first 90 calendar days after the occurrence of such an Event of Default during which such Event of Default is continuing
(or, if earlier, the date on which such Event of Default is cured or waived as provided for in this Indenture) and (ii) 0.50%
per annum of the principal amount of the Notes outstanding for each day from, and including, the 91st calendar day to, and including,
the 270th calendar day after the occurrence of such an Event of Default during which such Event of Default is continuing (or,
if earlier, the date on which such Event of Default is cured or waived as provided for in this Indenture). Special Interest payable
pursuant to this Section 6.03 shall be in addition to, not in lieu of, any Special Interest payable pursuant to Section
4.06(d) or Section 4.06(e). If the Company so elects, such Special Interest shall be payable as set forth in Section 2.03.
On the 271st day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with its
obligations as set forth in Section 4.06(b) is not cured or waived prior to such 271st day), the Notes shall be immediately
subject to acceleration as provided in Section 6.02. In the event the Company does not elect to pay Special Interest following
an Event of Default in accordance with this Section 6.03 or the Company elected to make such payment but does not pay the
Special Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.


 


In
order to elect to pay Special Interest as the sole remedy during the first 270 days after the occurrence of any Event of Default
described in the immediately preceding paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying
Agent in writing of such election prior to the occurrence of such Event of Default. Upon the failure to timely give such notice,
the Notes shall be immediately subject to acceleration as provided in Section 6.02.




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


 


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




    33


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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




    34


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(e)           
no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee
by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant
to Section 6.09,




    35


     


    


it
being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and
Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection
and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


 


Notwithstanding
any other provision of this Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as
the case may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable)
of, (y) accrued and unpaid Special Interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after
the respective due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement
of any such payment or delivery, as the case may be, on or after such respective dates against the Company shall not be impaired
or affected without the consent of such Holder.


 


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


 


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




    36


     


    


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


 


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


 


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




    37


     


    


Article
7

Concerning the Trustee


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)            
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding
determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;




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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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




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


 


(d)           
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason
of such inquiry or investigation;


 


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


 


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


 


In
no event shall the Trustee be liable for any special, indirect, consequential or punitive loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage. The
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1)a Responsible
Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or by any Holder of the Notes.


 


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


 


Section
7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any
Paying Agent, any Conversion Agent, Bid Solicitation Agent (if other than the Company or any Affiliate thereof), subject to Section
2.05(e) and Section 2.10 or Note Registrar, in its individual or any other capacity, may become the owner or pledgee of Notes
with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent, Bid Solicitation Agent or Note
Registrar.




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


 


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


 


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




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


 


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


 


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


 


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


 


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


 


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




    42


     


    


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


 


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


 


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


 


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


 


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


 


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




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


 


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


 


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


 


Article
8

Concerning the Holders


 


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




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


 


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


 


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




    45


     


    


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


 


Article
9

Holders’ Meetings


 


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


 


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


 


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


 


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




    46


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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




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


 


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


 


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


 


Section
9.07. No Delay of Rights by Meeting. Nothing contained in this  Article 9 shall be deemed or construed to authorize
or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders
under any of the provisions of this Indenture or of the Notes. Nothing contained in this  Article 9 shall be deemed or construed
to limit any Holder’s actions pursuant to the applicable procedures of the Depositary so long as the Notes are Global Notes.


 


Article
10

Supplemental Indentures


 


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


 


(a)            
to cure any ambiguity, omission, defect or inconsistency that does not adversely affect Holders;




    48


     


    

(b)            
to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to  Article
11;


 


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


 


(d)            
to secure the Notes;


 


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


 


(f)             
to make any other change that does not adversely affect the rights of any Holder (for the avoidance of doubt, any amendment to
conform the terms of this Indenture or the Notes to the description contained in the Offering Memorandum in accordance with  Section
10.01(m) below will not be deemed to be adverse to any Holder);


 


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


 


(h)            
to provide for the acceptance of appointment by a successor trustee pursuant to  Section 7.09 or to facilitate the administration
of the trusts under this Indenture by more than one trustee;


 


(i)             
to provide for the conversion of Notes to satisfy the Company’s Conversion Obligation in accordance with the provisions
of this Indenture;


 


(j)             
in connection with any Merger Event, provide that the notes are convertible into Reference Property, subject to the provisions
of  Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required or permitted by
 Article 14;


 


(k)            
to provide for the issuance of additional Notes in accordance with the terms of this Indenture, to the extent that the Company
deems such amendment necessary or advisable in connection with such issuance; provided that that no such amendment or supplement
may impair the rights or interests of any Holder of Notes;


 


(l)             
to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture
Act;


 


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


 


(n)            
to irrevocably elect a Settlement Method and/or Specified Dollar Amount (or a minimum Specified Dollar Amount) or eliminate the
Company’s right to elect a Settlement Method.


 


Upon
the written request of the Company, the Trustee is hereby authorized to, and shall, subject to Section 10.05, join with the Company
in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein
contained, except that the Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.




    49


     


    


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)            
change the ranking of the Notes;


 


(h)            
impair the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Note; or


 


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


 


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




    50


     


    


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


 


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


 


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


 


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






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Article
11

Consolidation, Merger, Sale, Conveyance and Lease


 


Section
11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of  Section 11.02, the Company shall
not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets
to another Person, unless:


 


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


 


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


 


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


 


Section
11.02. Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or
lease and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and any accrued and unpaid Special Interest on all
of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes
and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Company,
such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of
the Company’s properties and assets, shall be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to
all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause
to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company
to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered
to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes
had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer
(but not in the case of a lease), upon compliance with this  Article 11 the Person named as the “Company” in the
first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this  Article
11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be
released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.




    52


     


    


In
case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in
substance) may be made in the Notes thereafter to be issued as may be appropriate.


 


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


 


Article
12

Immunity of Incorporators, Stockholders, Officers and Directors


 


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


 


Article
13

[Intentionally Omitted]


 


Article
14

Conversion of Notes


 


Section
14.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions of this  Article 14, each Holder
of a Note shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is
$1,000 principal amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described
in  Section 14.01(b), at any time prior to the close of business on the Business Day immediately preceding September 1, 2027
under the circumstances and during the periods set forth in  Section 14.01(b), and (ii) regardless of the conditions described
in  Section 14.01(b), on or after September 1, 2027 and prior to the close of business on the second Scheduled Trading Day
immediately preceding the Maturity Date, in each case, at an initial conversion rate of 3.5104 shares of Common Stock (subject
to adjustment as provided in this  Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes
(subject to, and in accordance with, the settlement provisions of  Section 14.02, the “Conversion Obligation”).




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(b)             (i)
Prior to the close of business on the Business Day immediately preceding September 1, 2027, a Holder may surrender all or any
portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading
Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined
following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period
was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion
Rate on each such Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection
(b)(i) and the definition of Trading Price set forth in this Indenture. The Company shall provide written notice to the Bid Solicitation
Agent (if other than the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant
to the definition of Trading Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other
than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company
has requested such determination, and the Company shall have no obligation to make such request (or, if the Company is acting
as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price per $1,000 principal amount of
Notes) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes
on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading Day
and the Conversion Rate on such Trading Day, at which time the Company shall instruct the Bid Solicitation Agent (if other than
the Company) to determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price
per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price
per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common
Stock and the Conversion Rate. If (x) the Company is not acting as Bid Solicitation Agent, and the Company does not instruct the
Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding
sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent fails to make such
determination, or (y) the Company is acting as Bid Solicitation Agent and the Company fails to make such determination when obligated
as provided in the preceding sentence, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed
to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each Trading
Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify the Holders, the
Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition set forth above
has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the Holders of the
Notes, the Trustee and the Conversion Agent (if other than the Trustee).




    54


     


    


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


 


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


 


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


 


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


 


(iii)           
If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of
business on the Business Day immediately preceding September 1, 2027, regardless of whether a Holder has the right to require
the Company to repurchase the Notes pursuant to  Section 15.02, or if the Company is a party to a consolidation, merger, binding
share exchange, or transfer or lease of all or substantially all of its assets that occurs prior to the close of business on the
Business Day immediately preceding September 1, 2027, in each case, pursuant to which the Common Stock would be converted into
cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time from
or after the date that is 45 Scheduled Trading Days prior to the anticipated effective date of the transaction (or, if later,
the earlier of (x) the Business Day after the Company gives notice of such transaction and (y) the actual effective date of such
transaction) until 35 Trading Days after the actual effective date of such transaction or, if such transaction also constitutes
a Fundamental Change, until the related Fundamental Change Repurchase Date. The Company shall notify Holders, the Trustee and
the Conversion Agent (if other than the Trustee) (x) as promptly as practicable following the date the Company publicly announces
such transaction but in no event less than 45 Scheduled Trading Days prior to the anticipated effective date of such transaction
or (y) if the Company does not have knowledge of such transaction at least 45 Scheduled Trading Days prior to the anticipated
effective date of such transaction, within one Business Day of the date upon which the Company receives notice, or otherwise becomes
aware, of such transaction, but in no event later than the actual effective date of such transaction.




    55


     


    


(iv)          
Prior to the close of business on the Business Day immediately preceding September 1, 2027, a Holder may surrender all or any
portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on June
30, 2021 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading
Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading
Day of the immediately preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable
Trading Day. The Company shall determine at the beginning of each calendar quarter commencing after June 30, 2021 whether the
Notes may be surrendered for conversion in accordance with this clause  (iv) and shall notify the Holders, the Trustee and
the Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with this clause (iv).


 


(v)           
If the Company calls any or all of the Notes for redemption pursuant to  Article 16 prior to the close of business on the
Business Day immediately preceding September 1, 2027, then a Holder may surrender all or any portion of its Notes for conversion
at any time prior to the close of business on the Scheduled Trading Day prior to the Redemption Date, even if the Notes are not
otherwise convertible at such time. After that time, the right to convert pursuant to this Section 14.01(b)(v) shall expire, unless
the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption
Price has been paid or duly provided for, subject to the Depositary’s procedures in the case of Global Notes.


 


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


 


(i)            
All conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect
to the Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or
after September 1, 2027 shall be settled using the same Settlement Method.


 


(ii)            
Except for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice
with respect to the Notes but prior to the related Redemption Date and any conversions for which the relevant Conversion Date
occurs on or after September 1, 2027, the Company shall use the same Settlement Method for all conversions with the same Conversion
Date, but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different
Conversion Dates.




    56


     


    


(iii)           
If, in respect of any Conversion Date (or the period described in the third immediately succeeding set of parentheses, as the
case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method
in respect of such Conversion Date (or such period, as the case may be), and the Company has not previously irrevocably elected
a Settlement Method as described under Section 14.02(a)(vi), the Company, through the Trustee, shall deliver such Settlement Notice
to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion Date
(or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a Redemption
Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after September
1, 2027, no later than September 1, 2027). If the Company does not elect a Settlement Method prior to the deadline set forth in
the immediately preceding sentence, unless the Company has previously irrevocably elected a Settlement Method as described under
Section 14.02(a)(vi), the Company shall no longer have the right to elect Cash Settlement or Physical Settlement for such conversion
and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified
Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify the relevant
Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate the
Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination
Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount
of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.


 


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


 


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


 


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




    57


     


    

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


 


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


 


(vi)           
The Company may, unless the Company has previously elected (or is deemed to have elected) a Settlement Method, at any time prior
to any Conversion Date for any Note, and without the consent of the Holders, irrevocably elect a Settlement Method to apply in
respect of such Notes converted following the date of the Company’s election. The Company will inform Holders, through the
Trustee, of such election and, if Combination Settlement applies, the Specified Dollar Amount.


 


(b)           
Subject to  Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder
shall (i) in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required,
pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled
as set forth in  Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable
notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice of
Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be
converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of
Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed
to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion
Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to any Special
Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set forth in  Section 14.02(h).
The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this  Article
14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder
thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has
not validly withdrawn such Fundamental Change Repurchase Notice in accordance with  Section 15.03.




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


 


(c)            
A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion
Date”) that the Holder has complied with the requirements set forth in subsection  (b) above. Except as set forth
in   Section 14.03(b) and  Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration
due in respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date (or,
in respect of any Conversion Date occurring after February 15, 2028, on the Maturity Date), if the Company elects Physical Settlement,
or on the second Business Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement
Method. If any shares of Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver
(if applicable) to the Conversion Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares
of Common Stock to which such Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s
Conversion Obligation.


 


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


 


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


 


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


 


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




    59


     


    


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


 


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


 


(j)             
The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu
of delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion
Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period
(in the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement,
the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement
Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.




    60


     


    


Section
14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or
Redemption Notice. (a) If (x) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (y) the
Company gives a Redemption Notice with respect to any or all of the Notes in accordance with  Section 16.01 and, in each case
a Holder elects to convert its Notes in connection with such Make-Whole Fundamental Change or such Redemption Notice, as applicable,
the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion
by a number of additional shares of Common Stock (the “Additional Shares”), as described below. A conversion
of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant
Notice of Conversion is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental
Change up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the
case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition
thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the
 “Make-Whole Fundamental Change Period”). A conversion of Notes shall be deemed for these purposes to be “in
connection with” a Redemption Notice if the relevant Notice of Conversion is received by the Conversion Agent from, and
including, the date of the Redemption Notice until the close of business on the Scheduled Trading Day immediately preceding the
Redemption Date.


 


(b)           
Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to  Section 14.01(b)(iii)
or Redemption Notice pursuant to Section  Section 14.01(b)(v), the Company shall, at its option, satisfy the related Conversion
Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance with  Section 14.02, in each case,
based on the Conversion Rate as increased to reflect the Additional Shares pursuant to the table in Section 14.03(e) below; provided,
however, that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of
Fundamental Change, the Reference Property following such Make-Whole Fundamental Change is composed entirely of cash, for any
conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated
based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of
converted Notes equal to the Conversion Rate (including any adjustment for Additional Shares), multiplied by such Stock
Price. In such event, the Conversion Obligation shall be paid to Holders in cash on the second Business Day following the Conversion
Date. The Company shall notify the Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Effective
Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date.


 


(c)           
The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the
table in Section 14.03(e) below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective or the
date of the Redemption Notice, as the case may be, (in each case, the “Effective Date”) and the price (the
 “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change
or with respect to the Optional Redemption, as the case may be. If the holders of the Common Stock receive in exchange for their
Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the
Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last Reported Sale
Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the
Effective Date of the Make-Whole Fundamental Change or the date of the Redemption Notice, as the case may be. The Board of Directors
shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective
Date (as such term is used in   Section 14.04) or expiration date of the event occurs during such five consecutive Trading
Day period.




    61


     


    


(d)           
The Stock Prices set forth in the column headings of the table in Section 14.03(e) below shall be adjusted as of any date on which
the Conversion Rate of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately
prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to
such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted.
The number of Additional Shares set forth in the table in Section 14.03(e) below shall be adjusted in the same manner and at the
same time as the Conversion Rate as set forth in  Section 14.04.


 


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


 


	 	Stock
    Price
	Effective
    Date	$180.87	$230.00	$284.87	$325.00	$370.33	$420.00	$480.00	$550.00	$650.00	$750.00	$850.00	$950.00
	March
    1, 2021	2.0184	1.3458	0.9123	0.7070	0.5418	0.4130	0.3039	0.2169	0.1373	0.0882	0.0566	0.0000
	March
    1, 2022	2.0184	1.3222	0.8823	0.6759	0.5114	0.3844	0.2780	0.1945	0.1194	0.0741	0.0458	0.0000
	March
    1, 2023	2.0184	1.2883	0.8420	0.6353	0.4724	0.3485	0.2463	0.1675	0.0986	0.0583	0.0340	0.0000
	March
    1, 2024	2.0184	1.2470	0.7922	0.5852	0.4248	0.3051	0.2086	0.1363	0.0753	0.0414	0.0219	0.0000
	March
    1, 2025	2.0184	1.1967	0.7295	0.5222	0.3655	0.2520	0.1639	0.1006	0.0502	0.0243	0.0107	0.0000
	March
    1, 2026	2.0184	1.1242	0.6385	0.4326	0.2840	0.1823	0.1083	0.0594	0.0244	0.0089	0.0023	0.0000
	March
    1, 2027	2.0184	1.0066	0.4857	0.2882	0.1629	0.0889	0.0433	0.0182	0.0042	0.0003	0.0000	0.0000
	March
    1, 2028	2.0184	0.8374	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000


 


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


 


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


 


(ii)          
if the Stock Price is greater than $950.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in
the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion
Rate; and




    62


     


    


(iii)          if
the Stock Price is less than $180.87 per share (subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.


 


Notwithstanding
the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 5.5288 shares of Common Stock,
subject to adjustment in the same manner as the Conversion Rate pursuant to  Section 14.04.


 


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


 


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


 


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


 


 


 


where,


 


		CR0	= 	the
                                         Conversion Rate in effect immediately prior to the open of the business on the Ex-Dividend
                                         Date of such dividend or distribution, or immediately prior to the open of business on
                                         the Effective Date of such share split or share combination, as applicable;



 


		CR’	= 	the
                                         Conversion Rate in effect immediately after the open of business on such Ex-Dividend
                                         Date or Effective Date, as applicable;



 


		OS0	= 	the
                                         number of shares of Common Stock outstanding immediately prior to the open of business
                                         on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend,
                                         distribution, split or combination); and



 


		OS’	=	the
                                         number of shares of Common Stock outstanding immediately after giving effect to such
                                         dividend, distribution, share split or share combination.





    63


     


    


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


 


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


 


 


 


where,


 


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



 


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



 


		OS0	=	the
                                         number of shares of Common Stock outstanding immediately prior to the open of business
                                         on such Ex-Dividend Date;



 


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



 


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





    64


     


    


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


 


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


 


(c)           
If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company
or rights, options or warrants to acquire its Capital Stock or other securities of the Company, to all or substantially all holders
of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to  Section
14.04(a) or  Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected
pursuant to  Section 14.04(d), (iii) payments in respect of tender or exchange offers as to which an adjustment was effected
pursuant to  Section 14.04(e), (iv) distributions of Reference Property in a transaction described in  Section 14.07 and
(v) Spin-Offs as to which the provisions set forth below in this  Section 14.04(c) shall apply (any of such shares of
Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or
other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on the following
formula: 


 


 


 


where,


 


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



 


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



 


		SP0	=	the
                                         average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive
                                         Trading Day period ending on, and including, the Trading Day immediately preceding the
                                         Ex-Dividend Date for such distribution; and



 


		FMV	= 	the
                                         fair market value (as determined by the Board of Directors) of the Distributed Property
                                         with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for
                                         such distribution.





    65


     


    


Any
increase made under the portion of this  Section 14.04(c) above shall become effective immediately after the open of business
on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased
to the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing,
if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of
the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time
and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property
such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect
on the Ex-Dividend Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of
any distribution for purposes of this  Section 14.04(c) by reference to the actual or when-issued trading market for any securities,
it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of
the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the
Ex-Dividend Date for such distribution.


 


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


 





 


where,


 


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



 


		CR’	= 	the
                                         Conversion Rate in effect immediately after the end of the Valuation Period;



 


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



 


		MP0	=	the
                                         average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.





    66


     


    


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


 


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




    67


     


    


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


 


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


 


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


 


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


 


(d)           
If any cash dividend or distribution is made to all or substantially all holders of the Common Stock (excluding, for the avoidance
of doubt, cash payments in respect of tender or exchange offers to which  Section 14.04(e) shall apply), the Conversion Rate
shall be adjusted based on the following formula: 


 


 


 


where,


 


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



 


		CR’	= 	the
                                         Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date
                                         for such dividend or distribution;



 


		SP0	=	the
                                         Last Reported Sale Price on the Trading Day immediately preceding the Ex-Dividend Date
                                         for such dividend or distribution; and



 


		C	= 	the
                                         amount in cash per share the Company distributes to all or substantially all holders
                                         of the Common Stock.





    68


     


    


Any
increase pursuant to this  Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend
Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased,
effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C”
(as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase,
each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders
of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares
of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.


 


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


 


 


 


where,


 


		CR0	= 	the
                                         Conversion Rate in effect immediately prior to the close of business on the 10th Trading
                                         Day immediately following, and including, the Trading Day next succeeding the date such
                                         tender or exchange offer expires;



 


		CR’	= 	the
                                         Conversion Rate in effect immediately after the close of business on the 10th Trading
                                         Day immediately following, and including, the Trading Day next succeeding the date such
                                         tender or exchange offer expires;



 


		AC	= 	the
                                         aggregate value of all cash and any other consideration (as determined by the Board of
                                         Directors) paid or payable for shares of Common Stock purchased in such tender or exchange
                                         offer;



 


		OS0	=	the
                                         number of shares of Common Stock outstanding immediately prior to the date such tender
                                         or exchange offer expires (prior to giving effect to the purchase of all shares of Common
                                         Stock accepted for purchase or exchange in such tender or exchange offer);



 


		OS’	= 	the
                                         number of shares of Common Stock outstanding immediately after the date such tender or
                                         exchange offer expires (after giving effect to the purchase of all shares of Common Stock
                                         accepted for purchase or exchange in such tender or exchange offer); and



 


		SP’	= 	the
                                         average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive
                                         Trading Day period commencing on, and including, the Trading Day next succeeding the
                                         date such tender or exchange offer expires.





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


 


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


 


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


 


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




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


 


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


 


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


 


(iii)          upon
the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible
security not described in clause  (ii) of this subsection and outstanding as of the date the Notes were first issued (other
than as set forth in Section 14.11);


 


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


 


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


 


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


 


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


 


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


 


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




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


 


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


 


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


 


(a)           
In the case of:


 


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


 


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


 


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


 


(iv)          any
statutory share exchange,




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


 


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


 


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


 


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




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(c)           The
Company shall not become a party to any Merger Event unless its terms are consistent with this   Section 14.07. None of
the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or
a combination of cash and shares of Common Stock, as applicable, as set forth in  Section 14.01 and  Section 14.02 prior
to the effective date of such Merger Event.


 


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


 


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


 


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


 


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


 


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




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


 


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


 


(b)           Merger
Event; or


 


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


 


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


 


Section
14.11. Stockholder Rights Plans. If the Company has a stockholder rights plan in effect upon conversion of the Notes, each
share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any,
and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as
may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior
to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the
applicable stockholder rights plan so that the Holders would not be entitled to receive any rights in respect of Common Stock
issuable upon conversion of the Notes, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed
to all or substantially all holders of the Common Stock Distributed Property as provided in  Section 14.04(c), subject to
readjustment in the event of the expiration, termination or redemption of such rights.




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Article
15

Repurchase of Notes at Option of Holders


 


Section
15.01. Intentionally Omitted.


 


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


 


(b)           
Repurchases of Notes under this  Section 15.02 shall be made, at the option of the Holder thereof, upon:


 


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


 


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


 


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


 


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




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


 


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


 


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


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated
by this  Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at
any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with  Section 15.03.


 


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


 


(c)           
On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide
to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the
 “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and
of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall
be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures
of the Depositary. Each Fundamental Change Company Notice shall specify:


 


(i)           
the events causing the Fundamental Change;


 


(ii)           the
effective date of the Fundamental Change;


 


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


 


(iv)          the
Fundamental Change Repurchase Price;


 


(v)           the
Fundamental Change Repurchase Date;


 


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


 


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


 


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


 


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




    77


     


    


No
failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or
affect the validity of the proceedings for the repurchase of the Notes pursuant to this  Section 15.02.


 


At
the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense;
provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the
Company, and the Company shall provide such text at least three (3) Business Days prior to the date such notice is required to
be sent to the Holders.


 


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


 


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


 


(i)           
the principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which must be in principal
amounts of $1,000 or a multiple in excess thereof,


 


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


 


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




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


 


Section
15.04. Deposit of Fundamental Change Repurchase Price. (a) The Company will deposit with the Trustee (or other Paying Agent
appointed by the Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in  Section 4.04) on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money
sufficient to repurchase all of the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to
receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for
repurchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied
the conditions in  Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or
other Paying Agent appointed by the Company) by the Holder thereof in the manner required by  Section 15.02 by mailing checks
for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided,
however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of
the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to
the Company any funds in excess of the Fundamental Change Repurchase Price.


 


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


 


(c)           
Upon surrender of a Note that is to be repurchased in part pursuant to  Section 15.02, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased
portion of the Note surrendered.


 


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


 


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


 


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




    79


     


    


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


 


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


 


Article
16

Optional Redemption


 


Section
16.01. Optional Redemption. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company
prior to September 6, 2024. On or after September 6, 2024, the Company may redeem (an “Optional Redemption”)
for cash all or any portion of the Notes (subject to the Partial Redemption Limitation), at the Redemption Price, if the Last
Reported Sale Price of the Common Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading
Days (whether or not consecutive), including the Trading Day immediately preceding the date on which the Company provides a Redemption
Notice in accordance with   Section 16.02, during any 30 consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the date on which the Company provides the Redemption Notice in accordance with   Section
16.02.


 


Section
16.02 Notice of Optional Redemption; Selection of Notes. (a) In case the Company exercises its Optional Redemption right
to redeem all or, as the case may be, any part of the Notes pursuant to  Section 16.01, it shall fix a date for redemption
(each, a “Redemption Date”) and it or, at its written request received by the Trustee not less than 30 Scheduled
Trading Days prior to the Redemption Date (or such shorter period of time as may be acceptable to the Trustee), the Trustee, in
the name of and at the expense of the Company, shall deliver or cause to be delivered a notice of such Optional Redemption (a
 “Redemption Notice”) not less than 25 nor more than 40 Scheduled Trading Days prior to the Redemption Date
to the Paying Agent and each Holder of Notes; provided, however, that, if the Company shall give such notice, it
shall also give written notice of the Redemption Date to the Trustee. In connection with the delivery of a Redemption Notice to
the Trustee for further delivery to each Holder of Notes, the Company shall also deliver to the Trustee an Officer’s Certificate
setting forth (x) the Redemption Date, (y) the principal amount of Notes to be redeemed, and (z) the Redemption Price. The Redemption
Date must be a Business Day, and the Company shall not specify a Redemption Date that falls on or after the 21st Scheduled
Trading Day immediately preceding the Maturity Date.


 


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


 


(c)           Each
Redemption Notice shall specify:


 


(i)           
the Redemption Date;




    80


     


    


(ii)           the
Redemption Price;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


A
Redemption Notice shall be irrevocable.


 


(d)           
If the Company elects to redeem fewer than all of the outstanding Notes, at least $150,000,000 aggregate principal amount of Notes
must be outstanding and not subject to redemption as of the relevant date of a Redemption Notice (such requirement, the “Partial
Redemption Limitation”). If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall, in the case
of Global Notes, select the Notes to be redeemed (in principal amounts of $1,000 or multiples thereof) in accordance with the
Depositary’s requirements, or, in the case of Physical Notes, by lot or on a pro rata basis, unless otherwise required
by law or the requirements of the principal securities exchange, if any, on which the Notes are listed. If any Note is to be redeemed
in part only, any Redemption Notice that relates to such Note shall state the portion of the principal amount thereof that has
been or is to be redeemed. If any Note selected for partial redemption is submitted for conversion in part after such selection,
the portion of the Note submitted for conversion shall be deemed to be from the portion selected for redemption.


 


Section
16.03. Payment of Notes Called for Redemption. (a) If any Redemption Notice has been given in respect of the Notes in accordance
with  Section 16.01, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Redemption
Notice and at the applicable Redemption Price. On presentation and surrender of the Notes at the place or places stated in the
Redemption Notice, the Notes shall be paid and redeemed by the Company at the applicable Redemption Price.




    81


     


    


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


 


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


 


Article
17

Miscellaneous Provisions


 


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


 


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


 


Section
17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted
to be given or served by the Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made,
for all purposes if given or served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company with the Trustee) to Enphase Energy, Inc., 1420 N. McDowell Blvd,
Petaluma, CA 94954; Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed to the Corporate Trust Office or sent electronically in PDF
format, upon receipt by the Trustee, whether sent by mail or electronically.


 


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




    82


     


    


Any
notice or communication delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail,
postage prepaid, at its address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the
time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance
with the applicable procedures of the Depositary and shall be sufficiently given to it if so delivered within the time prescribed.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any
event (including any Fundamental Change Company Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice
shall be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary
or its designee, including by electronic mail in accordance with the Depositary’s applicable procedures.


 


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


 


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


 


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


 


The
Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any
legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in
connection with this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United
States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the
Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam,
generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and
revenues.


 


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




    83


     


    


Section
17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that such action is permitted by the terms of
this Indenture and that all conditions precedent under the Indenture, if any, have been complied with.


 


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


 


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


 


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


 


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


 


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


 


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




    84


     


    


Section
17.10. Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf
and subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and
transfers and exchanges of Notes hereunder, including under  Section 2.04,  Section 2.05,  Section 2.06,  Section
2.07,  Section 10.04 and  Section 15.04 as fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this Indenture,
the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication and delivery of such
Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication.
Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to  Section 7.08.


 


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


 


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


 


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


 


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


 


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


 





	                                       ,
	as Authenticating Agent,
    certifies that this is one of the Notes described
	in the within-named
    Indenture.



 





	By:
	 	 






Authorized Officer





    85


     


    


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


 


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


 


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


 


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


 


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


 


Section
17.16. 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.




    86


     


    


Section
17.17.   Tax Withholding. The Company or the Trustee, as the case may be, shall be entitled to make a deduction or withholding
from any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and
to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations
thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant Holder failing to satisfy any
certification or other requirements in respect of the Notes, in which event the Company or the Trustee, as the case may be, shall
make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount
so withheld or deducted and shall have no obligation to gross up any payment hereunder or pay any additional amount as a result
of such withholding tax.


 


[Remainder
of page intentionally left blank]





    87


     


    

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


 


	 	ENPHASE
    ENERGY, INC.
	 	 
	 	By:	/s/
    Eric Branderiz
	 	 	Name: Eric
    Branderiz
	 	 	Title: EVP
    and Chief Financial Officer


 


	 	U.S.
    BANK NATIONAL ASSOCIATION, as Trustee
	 	 
	 	By:	/s/
    David Jason
	 	 	Name: David
    Jason
	 	 	Title: Vice
    President



 





[Signature
Page to Indenture] 




    


     


    


EXHIBIT
A


 


[FORM
OF FACE OF NOTE]


 


[INCLUDE
FOLLOWING LEGEND IF A GLOBAL NOTE]


 


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


 


[INCLUDE
FOLLOWING LEGEND IF A RESTRICTED SECURITY]


 


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


 


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


 


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


 


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


 


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




    A-1


     


    


(C)
TO A PERSON IT REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
OR


 


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


 


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


 


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





    A-2


     


    


Enphase
Energy, Inc.



0% Convertible Senior Note due 2028


 


	No. [•]	 	[Initially] 1 $[•]




 


CUSIP
No. [•]


 


Enphase
Energy, Inc., a corporation duly organized and validly existing under the laws of the State of Delaware (the “Company,”
which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value
received hereby promises to pay to [CEDE & CO.]2[•]3, or registered assigns, the principal sum
[as set forth in the “Schedule of Exchanges of Notes” attached hereto]4[of $[•]]5, which
amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture,
exceed $575,000,000 in aggregate at any time (or $632,500,000 if the Initial Purchasers exercise their over-allotment option in
full as set forth in the Purchase Agreement), in accordance with the rules and procedures of the Depositary, on March 1 2028,
and interest thereon as set forth below.


 


This
Note shall bear no regular cash interest, and the principal amount of this Note shall not accrete. Special Interest, if any, is
payable semi-annually in arrears on each March 1 and September 1, commencing on September 1, 2021, to Holders of record at the
close of business on the preceding February 15 or August 15 (whether or not such day is a Business Day), respectively. Accrued
Special Interest on this Notes, if any, shall be computed on the basis of a 360-day year composed of twelve 30-day months and,
for partial months, on the basis of the number of days actually elapsed in a 30-day month. Special Interest will be payable as
set forth in  Section 4.06(d),  Section 4.06(e) and  Section 6.03 of the within-mentioned Indenture, and any reference
to interest on, or in respect of, any Note therein shall be deemed to refer solely to Special Interest (if, in such context, Special
Interest is, was or would be payable pursuant to any of such  Section 4.06(d),  Section 4.06(e) and  Section 6.03)
and to any interest payable on any Defaulted Amounts as set forth in Section 2.03(c) of the Indenture.


 


Any
Defaulted Amounts shall accrue interest per annum at the rate of Special Interest, if any, borne by the Notes, from, and including,
the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at
its election, in accordance with  Section 2.03(c) of the Indenture.


 


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


 





 






1
Insert for a Global Note. 


2
Insert for Global Note 


3
Insert holder of Physical Note 


4
Insert for Global Note 


5
Insert for Physical Note 





    A-3


     


    


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


 


This
Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed
by the laws of the State of New York.


 


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


 


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


 


[Remainder
of page intentionally left blank]




    A-4


     


    





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


 


	 	ENPHASE
    ENERGY, INC.
	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title: 


 





	Dated:
	 
	TRUSTEE’S
    CERTIFICATE OF AUTHENTICATION
	 
	U.S. BANK
    NATIONAL ASSOCIATION
	as Trustee,
    certifies that this is one of the Notes described
	in the within-named
    Indenture.
	 
	By:	          	 
	 	Authorized
    Signatory







 


[Signature
Page to Global Note]




    


     


    





[FORM
OF REVERSE OF NOTE]


 


Enphase
Energy, Inc.

0% Convertible Senior Note due 2028


 


This
Note is one of a duly authorized issue of Notes of the Company, designated as its 0% Convertible Senior Notes due 2028 (the “Notes”),
initially limited to the aggregate principal amount of $575,000,000 (as increased by an amount equal to the aggregate principal
amount of any additional Notes purchased by the Initial Purchasers pursuant to the exercise of their over-allotment option as
set forth in the Purchase Agreement), all issued or to be issued under and pursuant to an Indenture dated as of March 1, 2021
(the “Indenture”), between the Company and U.S. Bank National Association (the “Trustee”),
to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. Additional
Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized
terms used in this Note and not defined in this Note shall have the respective meanings set forth in the Indenture.


 


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


 


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


 


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


 


No
reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay or deliver, as the case may be, the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, any accrued and unpaid Special Interest on, and the consideration
due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or shares of Common
Stock, as the case may be, herein prescribed.




    R-1


     


    


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


 


The
Notes shall be redeemable at the Company’s option on or after September 6, 2024 in accordance with the terms and subject
to the conditions specified in the Indenture. No sinking fund is provided for the Notes.


 


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


 


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


 


Terms
used in this Note and defined in the Indenture are used herein as therein defined.




    R-2


     


    





ABBREVIATIONS


 


The
following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written
out in full according to applicable laws or regulations:


 


TEN
COM = as tenants in common 


 


UNIF
GIFT MIN ACT = Uniform Gifts to Minors Act


 


CUST
= Custodian


 


TEN
ENT = as tenants by the entireties 


 




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



 


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




    R-3


     


    


SCHEDULE
A6


 


SCHEDULE
OF EXCHANGES OF NOTES



Enphase Energy, Inc.

0% Convertible Senior Notes due 2028


 


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


 





	Date
    of exchange	 	Amount
        of 

        decrease
        in 

        principal
        amount 

        of
        this Global Note 
	 	Amount
        of 

        increase
        in 

        principal
        amount 

        of
        this Global Note 
	 	Principal
        amount 

        of
        this Global Note 

        following
        such 

        decrease
        or 

        increase 
	 	Signature
        of 

        authorized 

        signatory
        of 

        Trustee
        or 

        Custodian 

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 







 





 






6
Include if a Global Note.





    R-4


     


    

ATTACHMENT
1


 


[FORM
OF NOTICE OF CONVERSION]


 


To:
Enphase Energy, Inc.


 


To:
U.S. Bank National Association

60 Livingston Ave

St. Paul, MN 55107

Attention: Corporate Trust Services


 


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


 





	Dated:	 	 	 
	 	 	 
	 	 	 
	 	 	Signature(s)




 





	 	 
	Signature Guarantee	 
	 	 




Signature(s)
must be guaranteed

by an eligible Guarantor Institution

(banks, stock brokers, savings and

loan associations and credit unions)

with membership in an approved

signature guarantee medallion program

pursuant to Securities and Exchange

Commission Rule 17Ad-15 if shares

of Common Stock are to be issued, or




    1


     


    




Notes are to be delivered, other than

to and in the name of the registered holder.


 


Fill
in for registration of shares if

to be issued, and Notes if to

be delivered, other than to and in the

name of the registered holder:


 





	 	 
	(Name)	 


  


	 	 
	(Street Address)	 





 





	 	 
	(City, State and Zip
    Code)	 


Please
print name and address


 





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






    2


     


    





ATTACHMENT
2


 


[FORM
OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


To:
Enphase Energy, Inc.


 


To:
U.S. Bank National Association

60 Livingston Ave

St. Paul, MN 55107

Attention: Corporate Trust Services


 


The
undersigned registered owner of this Note hereby acknowledges receipt of a notice from Enphase Energy, Inc. (the “Company”)
as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date
and requests and instructs the Company to pay to the registered holder hereof in accordance with  Section 15.02 of the Indenture
referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount
or a multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after
a Special Interest Record Date and on or prior to the corresponding Special Interest Payment Date, accrued and unpaid Special
Interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined
shall have the meanings ascribed to such terms in the Indenture.


 


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


 





	Dated:	 	 



 


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







    1


     


    


ATTACHMENT
3


 


[FORM
OF ASSIGNMENT AND TRANSFER]


 


U.S.
Bank National Association

60 Livingston Ave

St. Paul, MN 55107

Attention: Corporate Trust Services


 


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


 


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


 


☐          To
Enphase Energy, Inc. or a subsidiary thereof; or


 


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


 


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


 


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




    1


     


    


	Dated:	 	 



 


	 	 
	 	 
	 	 
	Signature(s)	 
	 	 
	 	 
	Signature Guarantee	 




   


Signature(s)
must be guaranteed by an

eligible Guarantor Institution (banks, stock

brokers, savings and loan associations and

credit unions) with membership in an approved

signature guarantee medallion program pursuant

to Securities and Exchange Commission

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

than to and in the name of the registered holder.


 


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




    2