Vertex Energy, Inc. 8-K


Exhibit
4.1


 




	 



 


VERTEX ENERGY, INC.



 


AND




U.S. BANK NATIONAL ASSOCIATION,



as Trustee



INDENTURE



Dated as of November 1, 2021



6.25% Convertible Senior Notes due 2027 


	 





 






     


     


    

 


TABLE OF CONTENTS





 



 


	 	 	Page
	 	 	 
	Article 1
 Definitions
	 	 	 
	Section 1.01.	Definitions	1
	Section 1.02.	References to Interest	17
	Section 1.03.	References to Principal Amount	17
	 	 	 
	Article 2
	Issue, Description, Execution, Registration and
    Exchange of Notes
	 	 
	Section 2.01.	Designation and Amount	17
	Section 2.02.	Form of Notes	17
	Section 2.03.	Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	18
	Section 2.04.	Execution, Authentication and Delivery of Notes	20
	Section 2.05.	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	20
	Section 2.06.	Mutilated, Destroyed, Lost or Stolen Notes	27
	Section 2.07.	Temporary Notes	28
	Section 2.08.	Cancellation of Notes Paid, Converted, Etc	29
	Section 2.09.	CUSIP Numbers	29
	Section 2.10.	Additional Notes; Repurchases	29
	 	 	 
	Article 3
	Satisfaction and Discharge
	 	 
	Section 3.01.	Satisfaction and Discharge	30
	 	 	 
	Article 4
	Particular Covenants of the Company
	 	 
	Section 4.01.	Payment of Principal and Interest	30
	Section 4.02.	Maintenance of Office or Agency	30
	Section 4.03.	Appointments to Fill Vacancies in Trustee’s Office	31
	Section 4.04.	Provisions as to Paying Agent	31
	Section 4.05.	Existence	32
	Section 4.06.	Rule 144A Information Requirement and Annual Reports	32
	Section 4.07.	Stay, Extension and Usury Laws	34
	Section 4.08.	Compliance Certificate; Statements as to Defaults	34
	Section 4.09.	Stockholder Approval	35
	Section 4.10.	Further Instruments and Acts	35
	Section 4.11.	Escrow of Funds	35



 






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	Article 5
	Lists of Holders and Reports by the Company and
    the Trustee
	 	 
	Section 5.01.	Lists of Holders	36
	Section 5.02.	Preservation and Disclosure of Lists	36
	 	 	 
	Article 6
	Defaults and Remedies
	 	 
	Section 6.01.	Events of Default	36
	Section 6.02.	Acceleration; Rescission and Annulment	38
	Section 6.03.	Additional Interest	39
	Section 6.04.	Payments of Notes on Default; Suit Therefor	39
	Section 6.05.	Application of Monies Collected by Trustee	41
	Section 6.06.	Proceedings by Holders	42
	Section 6.07.	Proceedings by Trustee	43
	Section 6.08.	Remedies Cumulative and Continuing	43
	Section 6.09.	Direction of Proceedings and Waiver of Defaults by Majority of Holders	43
	Section 6.10.	Notice of Defaults	44
	Section 6.11.	Undertaking to Pay Costs	44
	 	 	 
	Article 7
	Concerning the Trustee
	 	 
	Section 7.01.	Duties and Responsibilities of Trustee	45
	Section 7.02.	Reliance on Documents, Opinions, Etc	46
	Section 7.03.	No Responsibility for Recitals, Etc	48
	Section 7.04.	Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes	48
	Section 7.05.	Monies and Shares of Common Stock to Be Held in Trust	48
	Section 7.06.	Compensation and Expenses of Trustee	49
	Section 7.07.	Officer’s Certificate and Opinion of Counsel as Evidence	50
	Section 7.08.	Eligibility of Trustee	50
	Section 7.09.	Resignation or Removal of Trustee	50
	Section 7.10.	Acceptance by Successor Trustee	51
	Section 7.11.	Succession by Merger, Etc	52
	Section 7.12.	Trustee’s Application for Instructions from the Company	52
	 	 	 
	Article 8
	Concerning the Holders
	 	 
	Section 8.01.	Action by Holders	53
	Section 8.02.	Proof of Execution by Holders	53
	Section 8.03.	Who Are Deemed Absolute Owners	53
	Section 8.04.	Company-Owned Notes Disregarded	54
	Section 8.05.	Revocation of Consents; Future Holders Bound	54



 






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	Article 9
	Holders’ Meetings
	 	 	 
	Section 9.01.	Purpose of Meetings	54
	Section 9.02.	Call of Meetings by Trustee	55
	Section 9.03.	Call of Meetings by Company or Holders	55
	Section 9.04.	Qualifications for Voting	55
	Section 9.05.	Regulations	55
	Section 9.06.	Voting	56
	Section 9.07.	No Delay of Rights by Meeting	56
	 	 	 
	Article 10
	Supplemental Indentures
	 	 
	Section 10.01.	Supplemental Indentures Without Consent of Holders	57
	Section 10.02.	Supplemental Indentures with Consent of Holders	58
	Section 10.03.	Effect of Supplemental Indentures	59
	Section 10.04.	Notation on Notes	59
	Section 10.05.	Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	59
	 	 	 
	Article 11
	Consolidation, Merger, Sale, Conveyance and Lease
	 	 
	Section 11.01.	Company May Consolidate, Etc. on Certain Terms	60
	Section 11.02.	Successor Corporation to Be Substituted	60
	 	 	 
	Article 12
	Immunity of Incorporators, Stockholders, Officers and Directors
	 	 
	Section 12.01.	Indenture and Notes Solely Corporate Obligations	61
	 	 	 
	Article 13
	[Intentionally Omitted]
	 	 
	Article 14
	Conversion of Notes
	 	 
	Section 14.01.	Conversion Privilege	61
	Section 14.02.	Conversion Procedure; Settlement Upon Conversion	64
	Section 14.03.	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during
    a Redemption Period	69
	Section 14.04.	Adjustment of Conversion Rate	72
	Section 14.05.	Adjustments of Prices	81
	Section 14.06.	Shares to Be Fully Paid	82
	Section 14.07.	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock	82



 






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	Section 14.08.	Certain Covenants	84
	Section 14.09.	Responsibility of Trustee	84
	Section 14.10.	Notice to Holders Prior to Certain Actions	85
	Section 14.11.	Stockholder Rights Plans	86
	Section 14.12.	Exchange in Lieu of Conversion	86
	 	 	 
	Article 15
	Repurchase of Notes at Option of Holders
	 	 
	Section 15.01.	[Intentionally Omitted]	87
	Section 15.02.	Repurchase at Option of Holders Upon a Fundamental Change	87
	Section 15.03.	Withdrawal of Fundamental Change Repurchase Notice	89
	Section 15.04.	Deposit of Fundamental Change Repurchase Price	90
	Section 15.05.	Covenant to Comply with Applicable Laws Upon Repurchase of Notes	91
	 	 	 
	Article 16
	Redemption
	 	 	 
	Section 16.01.	Special Mandatory Redemption	91
	Section 16.02.	Optional Redemption	92
	Section 16.03.	Notice of Optional Redemption; Selection of Notes	93
	Section 16.04.	Payment of Notes Called for Redemption	94
	Section 16.05.	Restrictions on Redemption	95
	Section 16.06.	Partial Redemption Limitation	95
	 	 	 
	Article 17
	Miscellaneous Provisions
	 	 
	Section 17.01.	Provisions Binding on Company’s Successors	95
	Section 17.02.	Official Acts by Successor Corporation	95
	Section 17.03.	Addresses for Notices, Etc	95
	Section 17.04.	Governing Law; Jurisdiction	96
	Section 17.05.	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	97
	Section 17.06.	Legal Holidays	97
	Section 17.07.	No Security Interest Created	97
	Section 17.08.	Benefits of Indenture	98
	Section 17.09.	Table of Contents, Headings, Etc	98
	Section 17.10.	Authenticating Agent	98
	Section 17.11.	Execution in Counterparts	99
	Section 17.12.	Severability	99
	Section 17.13.	Waiver of Jury Trial	99
	Section 17.14.	Force Majeure	99
	Section 17.15.	Calculations	100
	Section 17.16.	USA PATRIOT Act	100



 






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EXHIBIT 


	Exhibit A		Form of Note






	Exhibit B		Accretion Schedule



 




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INDENTURE dated as of November
1, 2021 between VERTEX ENERGY, INC., a Nevada corporation, as issuer (the “Company,” as more fully set forth in Section 1.01)
and U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee,” as more fully set forth in Section 1.01). 


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate
purposes, the Company has duly authorized the issuance of its 6.25% Convertible Senior Notes due 2027 (the “Notes”),
initially in an aggregate principal amount at maturity not to exceed $155,000,000, and in order to provide the terms and conditions upon
which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Indenture;
and 


 


WHEREAS, the Form of Note, the
certificate of authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice
and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms herein 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% Provision”
shall have the meaning specified in Section 14.04(l).


 


“Accredited Investors”
means “accredited investors” as defined in Rule 501(a) of Regulation D under the Securities Act.


 






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“Accreted Principal
Amount” means, as of any date of determination, the amount per $1,000 principal amount of Notes as determined as of such date
and calculated in accordance with Exhibit B to this Indenture. For the avoidance of doubt, the Accreted Principal Amount on the
Maturity Date will be $1,000 per $1,000 principal amount of Notes.


 


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


 


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


 


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


 


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


 


“Board of Directors”
means 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. However, solely for purposes of Section 17.06, a day on which the applicable
place of payment is authorized or required by law or executive order to close or be closed will be deemed not to be a “Business
Day.”


 


“Capital Stock”
means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that entity, but shall not include any debt securities convertible or exchangeable for
any securities otherwise constituting Capital Stock pursuant to this definition until so converted or exchanged.


 


“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).


 






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“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.


 


“Common Stock”
means the common stock of the Company, $0.001 par value per share, at the date of this Indenture, subject to Section 14.07.


 


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


 


“Company Order”
means a written order of the Company signed by any of its Officers and delivered to the Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Corporate Trust Office”
means the designated office of the Trustee at which at any time this Indenture shall be administered, which office at the date hereof
is located at U.S. Bank National Association, 8 Greenway Plaza, Suite 1100, Houston, Texas 77046, Attention: A. Hoyos (Vertex Energy,
Inc. Administrator), or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or
the designated corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time
to time by notice to the Holders and the Company). 


 


 






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“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 25 consecutive Trading Days during the Observation Period, one-twenty-fifth (1/25th) 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 25.


 


“Daily Settlement Amount,”
for each of the 25 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, for each of the 25 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price
as displayed under the heading “Bloomberg VWAP” on Bloomberg page “VTNR <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.


 


“Default Settlement
Method” means Cash Settlement; provided, however, that upon the Company obtaining the Stockholder Approval, the
Default Settlement Method shall automatically be changed to Physical Settlement and the Company shall promptly either post an announcement
on its website or issue a report on Form 8-K (or any successor form) disclosing such change in Default Settlement Method. The Company
may from time to time change the Default Settlement Method by sending written notice of the new Default Settlement Method to the Holders,
the Trustee and the Conversion Agent (if other than the Trustee) prior to July 1, 2027, all in accordance with, and subject to, the second
paragraph of ‎Section 14.02(a)(iii). 


 


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


 






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


 


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


 


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


 


“Effective Date”
shall have the meaning specified in Section 14.03(c), except that, as used in Section 14.04 and Section 14.05, “Effective Date”
means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting
the relevant share split or share combination, as applicable. For the avoidance of doubt, any alternative trading convention on the applicable
exchange or market in respect of shares of Common Stock under a separate ticker symbol or CUSIP number will not be considered “regular
way” for this purpose.


 


“Eligible Escrow Investments”
means (1) Government Securities maturing no later than the Business Day preceding the Escrow End Date, (2) money market funds registered
under the Federal Investment Company Act of 1940, whose shares are registered under the Securities Act, and rated “AAAm”
or “AAAm-G” by S&P and “Aaa” if rated by Moody’s, including any mutual fund for which the Escrow Agent
or its affiliate serves as investment manager, administrator, shareholder servicing agent, and/or custodian, (3) U.S. dollar denominated
deposit accounts with domestic national or commercial banks, including the Escrow Agent or an affiliate of the Escrow Agent, that have
short term issuer rating on the date of purchase of “A-1+” or “A-1” by S&P or “Prime 1” or better
by Moody’s and maturing no more than 360 days after the date of purchase and (4) such other short-term liquid investments which
are available to the Escrow Agent and in which the Escrowed Property may be invested in accordance with the Escrow Agreement (including
the U.S. Bank Money Market Deposit Account). 


 


“Escrow Account”
shall have the meaning specified in Section 4.11(a).


 


“Escrow Agent”
means U.S. Bank National Association, or its successors from time to time.


 


“Escrow Agreement”
means the Escrow Agreement, dated as of the date hereof, among the Company, the Trustee and the Escrow Agent, as amended, supplemented
or otherwise modified from time to time.


 


“Escrow Conditions”
means:


 


(a)         
all conditions precedent to the Company’s obligation to consummate the Mobile Acquisition will have been satisfied or waived
in accordance with the terms of the Refinery Purchase Agreement (other than those conditions that by their terms are to be satisfied substantially
concurrently with the consummation of the Mobile Acquisition); and


 






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(b)         
the Escrowed Funds will be used to consummate the Mobile Acquisition, additional capital projects at the Mobile Refinery and/or
to pay associated costs and expenses therewith.


 


“Escrow End Date”
means April 1, 2022.


 


“Escrow Release”
shall have the meaning specified in Section 4.11(c).


 


“Escrow Release Date”
shall have the meaning specified in Section 4.11(c).


 


“Escrow Release Certificate”
shall have the meaning specified in Section 4.11(c).


 


“Escrowed Funds”
shall have the meaning specified in Section 4.11(a).


 


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


 


“Ex-Dividend Date”
means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without
the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common
Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market. For the avoidance of
doubt, any alternative trading convention on the applicable exchange or in the applicable market in respect of shares of the Common Stock
under a separate ticker symbol or CUSIP number shall not be considered “regular way” for this purpose.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Freely Tradeable”
means, with respect to any security of the Company, that such security would be eligible to be offered, sold or otherwise transferred
pursuant to Rule 144 under the Securities Act if held by a Person that is not an Affiliate of the Company, and that has not been an Affiliate
of the Company during the immediately preceding three months, without any requirements as to volume, manner of sale, availability of current
public information or notice under the Securities Act (except that any such requirement as to the availability of current public information
will be disregarded if the same is satisfied at that time).


 






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


 


(b)         
the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than a change to par value
or from par value to no par value or changes resulting from a subdivision or combination) as a result of which the Common Stock would
be converted into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger
of the Company pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (C) any sale,
lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company
and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s direct or indirect Wholly-Owned Subsidiaries;
provided, however, that neither (i) a transaction described in clause (A) or clause (B) in which the holders of all classes
of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly, more than 50% of all classes of
Common Equity of the continuing or surviving corporation or transferee or the direct or indirect parent thereof immediately after such
transaction in substantially the same proportions (relative to each other) as such ownership immediately prior to such transaction nor
(ii) any merger of the Company solely for the purpose of change its jurisdiction of incorporation that results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity shall, in each
case, be a Fundamental Change pursuant to this clause (b); and provided, further, that the Sale Transaction shall not be
treated as a 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, to the extent the Sale Transaction would otherwise fall under clause (C) above;


 


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


 






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the Common Stock (or other common
stock underlying the Notes) ceases to be listed or quoted on any of The Nasdaq Capital Market, The Nasdaq Global Select Market, The New
York Stock Exchange, NYSE American, or The Nasdaq Global Market (or any of their respective successors) and is not listed or quoted on
one of The Nasdaq Capital Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE American, or The Nasdaq Global Market
(or any of their respective successors) within one Trading Day of such cessation.provided, however, that a transaction or
transactions described in clause (a) or clause (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration
received or to be received by the common stockholders of the Company, excluding cash payments for fractional shares and cash payments
made in respect of dissenters’ appraisal rights, in connection with such transaction or transactions consists of shares of common
stock that are listed or quoted on any of The Nasdaq Capital Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE
American, 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 such consideration, excluding
cash payments for fractional shares and cash payments made in respect of dissenters’ appraisal rights (subject to the provisions
of Section 14.02(a), Section 14.04 and Section 14.03) becomes Reference Property for the Notes. 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.


 


For purposes of this definition,
any transaction that constitutes a Fundamental Change pursuant to both clause (a) and clause (b) of this definition (without regard to
the first proviso in clause (b)) shall be deemed a Fundamental Change solely under clause (b) of such definition (subject to such proviso).


 


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


 


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


 


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


 


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


 


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


 






    8 


     


    

 


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


 


“Government Securities” means
direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including
any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer’s option.


 


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


 


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


 


“Interest Payment Date”
means each April 1 and October 1 of each year, beginning on April 1, 2022.


 


“Last Reported Sale
Price” of the Common Stock (or any other security for which a last reported sale price must be determined) on any date means
the closing sale price (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) per share of the Common Stock (or such other security) on that date as
reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock (or such
other security) is traded. If the Common Stock (or such other security) is not listed for trading on a U.S. national or regional securities
exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price per share of the Common
Stock (or such other security) in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar
organization. If the Common Stock (or such other security) is not so quoted, the “Last Reported Sale Price” shall be
the average of the mid-point of the last bid and ask prices per share of the Common Stock (or such other security) on the relevant date
from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last
Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of regular trading
session hours.


 


The “Liquidity Conditions”
with respect to the Optional Redemption of any Notes will be satisfied if each of the following has been satisfied as of the date the
Company sends the related Redemption Notice and is reasonably expected by the Company to continue to be satisfied through at least the
30th calendar day after the Redemption Date for such Optional Redemption: (i) the Company has satisfied the reporting conditions (including,
for the avoidance of doubt, the requirement for current Form 10 information) set forth in Rule 144(c) and (i)(2) under the Securities
Act; and (ii) the shares of Common Stock, if any, issued or issuable upon conversion of the Notes are Freely Tradeable; provided,
however, that the Liquidity Conditions will also be deemed to be satisfied with respect to such Optional Redemption if, in accordance
with the provisions described in Section 14.02, the Company elects to settle all conversions of Notes called (or deemed called) for Optional
Redemption with a Conversion Date that occurs during the related Redemption Period by Cash Settlement.


 






    9 


     


    

 


“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 October 1, 2027.


 


“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).


 


“Mobile Acquisition”
means the transactions contemplated by the Refinery Purchase Agreement.


 


“Moody’s” means Moody’s
Investors Service, Inc., and any successor to its rating agency business.


 


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


 


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


 


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


 


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


 


“Notice of Redemption”
shall have the meaning specified in Section 16.03(a).


 


“Observation Period”
with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs prior to
July 1, 2027, the 25 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding such Conversion
Date; (ii) if the relevant Conversion Date with respect to such Notes occurs during the related Redemption Period, the 25 consecutive
Trading Days beginning on, and including, the 26th Scheduled Trading Day immediately preceding such Redemption Date; and (iii) subject
to clause (ii) of this definition above, if the relevant Conversion Date occurs on or after July 1, 2027, the 25 consecutive Trading Days
beginning on, and including, the 26th Scheduled Trading Day immediately preceding the Maturity Date.


 






    10 


     


    

 


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


 


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


 


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


 


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


 


“Optional Redemption”
shall have the meaning specified in Section 16.02.


 


“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);


 


(c)         
Notes that have been paid pursuant to Section 2.08 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 2.08 unless proof satisfactory to the Trustee is presented that any
such Notes are held by protected purchasers in due course;


 






    11 


     


    

 


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


 


(e)         
Notes redeemed pursuant to Article 16; and


 


(f)          
Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10 and delivered to the Trustee for cancellation.


 


“Partial Redemption
Limitation” shall have the meaning specified in Section 16.06.


 


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


 


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


 


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


 


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


 


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


 


“Private Placement
Memorandum” means the preliminary private placement memorandum dated October 25, 2021, as supplemented by the related pricing
term sheet dated October 26, 2021, relating to the offering and sale of the Notes. 


 


“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 time and 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 16.03(a).


 


“Redemption Notice Date”
shall have the meaning specified in Section 16.02.


 


“Redemption Period”
means, with respect to any Optional Redemption or Special Mandatory Redemption of Notes pursuant to Article 16, the period from, and including,
the Redemption Notice Date for such Optional Redemption or Special Redemption Notice Date for such Special Mandatory Redemption, as applicable,
to, and including, the close of business on the second Scheduled Trading Day immediately preceding the Redemption Date (or, if the Company
defaults in the payment of the Redemption Price or the Special Mandatory Redemption Price, until the close of business on the Scheduled
Trading Day immediately preceding the date on which the Redemption Price or Special Mandatory Redemption Price, as applicable, has been
paid or duly provided for).


 






    12 


     


    

 


“Redemption Price”
means, for any Notes to be redeemed pursuant to an Optional Redemption, 100% of the Accreted Principal Amount of such Notes, plus accrued
and unpaid interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but
on or prior to the immediately succeeding Interest Payment Date, in which case the Company will pay, on or, at the Company’s election,
before such Interest Payment Date, the full amount of accrued and unpaid interest to the Holders of record of such Notes as of the close
of business on such Regular Record Date, and the Redemption Price will be equal to 100% of the Accreted Principal Amount of such Notes
to be redeemed).


 


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


 


“Refinery Purchase Agreement”
means that that certain Sale and Purchase Agreement, dated as of May 26, 2021 (as may be amended or restated from time to time), by and
among Vertex Operating, Equilon Enterprises LLC d/b/a Shell Oil Products US and/or Shell Chemical LP and/or Shell Oil Company (“Seller”)
to purchase the Seller’s Mobile, Alabama refinery, certain real property associated therewith, and related assets, including all
inventory at the refinery as of closing and certain equipment, rolling stock, and other personal property associated with the Mobile refinery,
together with all exhibits, annexes, schedules and other disclosure letters thereto and after giving effect to any alteration, amendment,
modification, supplement or waiver thereto; provided that any alteration, amendment, modification, supplement or express waiver
or consent granted by the Company or Vertex Operating shall be given effect solely if such alteration, amendment, modification, supplement
or express waiver or consent is not, in the good faith determination of the Board of Directors or a committee thereof, materially adverse
to the interests of the Holders of the Notes.


 


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


 


“Reorganization Merger
Event” means a Merger Event that is solely for the purpose of changing the jurisdiction of organization of the Company that
(x) does not constitute a Fundamental Change or a Make-Whole Fundamental Change and (y) results in a reclassification, conversion or exchange
of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common stock becomes Reference
Property for the Notes.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee, including any senior vice
president, vice president, assistant vice president, any trust officer or assistant 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 relating to this Indenture is referred because of such person’s knowledge of and familiarity
with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.


 






    13 


     


    

 


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


 


“Restrictive Notes Legend”
shall have the meaning specified in Section 2.05(c).


 


“Restrictive Stock Legend”
shall have the meaning specified in Section 2.05(d).


 


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


 


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


 


“S&P” means Standard &
Poor’s Ratings Group, and any successor to its rating agency business.


 


“Safety-Kleen”
means Safety-Kleen Systems, Inc., a Wisconsin corporation.


 


“Sale Transaction”
means a sale of the UMO Business pursuant to the terms of that certain Asset Purchase Agreement, dated as of June 28, 2021 (as may be
amended or restated from time to time), by and among the Company, Vertex Operating, Vertex Refining LA, LLC, Vertex Refining OH, LLC,
Cedar Marine Terminals, L.P., H & H Oil, L.P., as sellers, and Safety-Kleen, as purchaser, pursuant to which Safety-Kleen shall acquire
the UMO Business; provided, that any alteration, amendment, modification, supplement or express waiver or consent granted by us, Vertex
Operating, Vertex Refining LA, LLC, Vertex Refining OH, LLC, Cedar Marine Terminals, L.P. or H & H Oil, L.P., shall be given effect
solely if such alteration, amendment, modification, supplement or express waiver or consent is not, in the good faith determination of
the Board of Directors, materially adverse to the interests of the Holders of the Notes. 


 


“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”
shall have 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.


 


“Settlement Method Election
Date” shall have the meaning specified in Section 14.02(a)(iii).


 


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


 


“Share Threshold”
means 12,650,514 shares of Common Stock. 


 


“Significant Subsidiary”
means a Subsidiary of the Company that meets the definition of “significant subsidiary” in Rule 1-02(w) of Regulation S-X
under the Exchange Act; provided that, in the case of a Subsidiary that meets the criteria of clause (1)(iii) of the definition
thereof but not clause (1)(i) or (1)(ii) thereof, in each case, as such rule is in effect on the date hereof, such Subsidiary shall be
deemed not to be a Significant Subsidiary unless the Subsidiary’s income (or loss) from continuing operations before income taxes
exclusive of amounts attributable to any non-controlling interests for the last completed fiscal year prior to the date of such determination
exceeds $5,000,000. For the avoidance of doubt, to the extent any such Subsidiary would not be deemed to be a “significant subsidiary”
under the relevant definition set forth in Article 1, Rule 1-02 of Regulation S-X (or any successor rule) as in effect on the relevant
date of determination, such Subsidiary shall not be deemed to be a “significant subsidiary” under the indenture irrespective
of whether such Subsidiary would otherwise be deemed to be a “significant subsidiary” pursuant to the immediately preceding
sentence.


 






    14 


     


    

 


“Special Mandatory Redemption”
shall have the meaning specified in Section 16.01(a).


 


“Special Mandatory Redemption
Date” shall have the meaning specified in Section 16.01(b).


 


“Special Mandatory Redemption
Event” shall have the meaning specified in Section 16.01(a).


 


“Special Mandatory Redemption
Notice” shall have the meaning specified in Section 16.01(b).


 


“Special Mandatory Redemption
Price” shall have the meaning specified in Section 16.01(a).


 


“Special Redemption
Notice Date” shall have the meaning specified in Section 16.01(b).


 


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


 


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


 


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


 


“Stockholder Approval”
shall have the meaning specified in Section 14.01(a).


 


“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).


 






    15 


     


    

 


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


 


“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
(who may, for the avoidance of doubt, be the Company) for $2,000,000 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 $2,000,000 aggregate principal amount of
Notes from a nationally recognized securities dealer, then 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.


 


“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.


 






    16 


     


    

 


“UMO Business”
means the Company’s Marrero used oil refinery in Louisiana (currently owned by Vertex Refining LA, LLC); the Company’s Heartland
used oil refinery in Ohio (currently owned by Vertex Refining OH, LLC); the Company’s H & H Oil, L.P. and Heartland used motor
oil collections business; the Company’s oil filters and absorbent materials recycling facility in East Texas; and the rights Cedar
Marine Terminals, L.P. holds to a lease on the Cedar Marine terminal in Baytown, Texas, and the Company’s NickCo filter recycling
plant.


 


“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).


 


“Vertex Operating”
means Vertex Energy Operating, LLC, a Texas limited liability company and a wholly-owned Subsidiary of the Company.


 


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


 


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


 


Section 1.03. References to
Principal Amount. Unless otherwise expressly indicated in this Indenture, any reference to the principal amount of the Notes is to
$1,000 principal amount at maturity of the Notes and references to the Conversion Price per $1,000 principal amount of Notes are to $1,000
principal amount at maturity of the Notes (and not the Accreted Principal Amount of the Notes on any particular date) divided by the applicable
Conversion Rate.


 


Article
2

Issue, Description, Execution, Registration and Exchange of Notes


 


Section 1.01. Designation
and Amount. The Notes shall be designated as the “6.25% Convertible Senior Notes due 2027.” The aggregate principal amount
of Notes that may be authenticated and delivered under this Indenture is initially limited to $155,000,000 (principal amount at maturity),
subject to Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu
of other Notes to the extent expressly permitted hereunder.


 


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


 






    17 


     


    

 


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


 


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


 


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, the Special
Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global
Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible
to receive payment is provided for herein.


 


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


 


(b)         
The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment
Date. The principal amount or Accreted Principal Amount of any Note, as applicable, (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, or cause the Paying Agent to pay, interest (i) on any Physical
Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders
of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal
amount of more than $5,000,000, either by check mailed to each such Holder or, upon written application by such a Holder to the Paying
Agent in a form reasonably satisfactory to the Paying Agent not later than the relevant Regular Record Date, by wire transfer in immediately
available funds to that Holder’s account within the United States if such Holder has provided the Trustee or the Paying Agent (if
other than the Trustee) with the requisite information necessary to make such wire transfer, which written 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.


 






    18 


     


    

 


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


 


(i)           
The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on
each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice,
unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of
such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not
less than 10 days after the receipt by the Trustee of the notice of the proposed payment (unless the Trustee shall consent to an earlier
date). The Company shall promptly notify the Trustee in writing of such special record date at least five (5) Business Days before such
notice is to be sent to the Holders and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Amounts and the special record date therefor to be delivered to each Holder not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered,
such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at
the close of business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section
2.03(c). The Trustee shall have no responsibility whatsoever for the calculation of the Defaulted Amounts.


 






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


 


Section 2.04. Execution, Authentication
and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual, facsimile or electronic 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; provided, however, that
the Trustee shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel of the Company with respect to the issuance,
authentication and delivery of such Notes.


 


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


 


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


 


Section 2.05. Exchange and
Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company 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.


 






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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, redemption 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 for other Notes or register a transfer of (i) any Notes surrendered
for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes,
or a portion of any Note, surrendered for 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 thereof. A Holder of a beneficial interest in a Global Note may
transfer or exchange such beneficial interest in accordance with this Indenture and the applicable procedures of the Depository.


 


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


 


(b)         
So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the
fourth paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form (each, a “Global
Note”) registered in the name of the Depositary or the nominee of the Depositary. Each Global Note shall bear the legend required
on a Global Note set forth in Exhibit A hereto. The transfer and exchange of beneficial interests in a Global Note that does not involve
the issuance of a Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the appliable procedures of the Depositary therefor. Each Global
Note will reflect the principal amount at maturity of the outstanding Notes and will not reflect the Accreted Principal Amount of outstanding
Notes represented thereby. To the extent that a calculation of the Accreted Principal Amount is required at any given time, the Company
will make such calculation in accordance with Section 17.15.


 






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


 


Any certificate evidencing some
or all of the Notes (and all securities issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon
conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the
following form (the “Restrictive Notes Legend”) (unless such Notes have been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer,
or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act,
or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):


 


THIS SECURITY AND THE 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) 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, OR (B) AN “ACCREDITED INVESTOR” AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT (AN “ACCREDITED INVESTOR”), HAS SUFFICIENT KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS TO BE CAPABLE OF EVALUATING THE MERITS AND RISKS OF THE PURCHASE OF THIS SECURITY AND IS ABLE AND PREPARED TO BEAR
THE ECONOMIC RISK OF INVESTING IN AND HOLDING THIS NOTE, AND


 






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(2) AGREES FOR THE BENEFIT
OF VERTEX ENERGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR
ANY BENEFICIAL INTEREST HEREIN, 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 QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR TO AN ACCREDITED INVESTOR THAT IS PURCHASING THIS SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, 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 FOR THE COMPANY 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 VERTEX ENERGY, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF VERTEX ENERGY, INC. DURING THE PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST
HEREIN.


 


No transfer of any Note will
be registered by the Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.


 


Any Note (or security issued
in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their terms,
(ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective under the Securities
Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration
provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender of such Note for exchange to
the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate
principal amount, which shall not bear the Restrictive Notes Legend required by this Section 2.05(c) and shall not be assigned a restricted
CUSIP number. The Company 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 any proposed transfer of any Note is being made in compliance with the Securities
Act and applicable state securities laws.


 






    23 


     


    

 


Any 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 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, 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.


 


The Company shall be entitled
to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth in clause (i) through
(iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender such Global
Note for exchange; and any new Global Note so exchanged therefor shall not bear the Restrictive Notes Legend specified in this Section
2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee 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,
subject to the Depositary’s applicable procedures, a beneficial owner of any Note requests that its beneficial interest therein
be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company
Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to
such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s
beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or
a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such
Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.


 






    24 


     


    

 


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


 


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


 


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


 


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


 






    25 


     


    

 


(1) REPRESENTS THAT IT AND
ANY ACCOUNT FOR WHICH IT IS ACTING IS (A) 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, OR (B) AN “ACCREDITED INVESTOR” AS
DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT (AN “ACCREDITED INVESTOR”), HAS SUFFICIENT KNOWLEDGE AND EXPERIENCE IN FINANCIAL
AND BUSINESS MATTERS TO BE CAPABLE OF EVALUATING THE MERITS AND RISKS OF THE PURCHASE OF THIS SECURITY AND IS ABLE AND PREPARED TO BEAR
THE ECONOMIC RISK OF INVESTING IN AND HOLDING THIS SECURITY, AND


 


(2) AGREES FOR THE BENEFIT
OF VERTEX ENERGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR
ANY BENEFICIAL INTEREST HEREIN, 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 QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR TO AN ACCREDITED INVESTOR THAT IS PURCHASING THIS SECURITY FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, 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 AND ANY APPLICABLE STATE SECURITIES LAWS.


 


PRIOR TO THE REGISTRATION
OF THIS SECURITY IN CONNECTION WITH 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 Stock Legend required by this Section 2.05(d).  


 






    26 


     


    

 


Notwithstanding anything to
the contrary in this Section 2.5(d), a share of Common Stock issued upon conversion of a Note need not bear the Restrictive Stock Legend
if such share of Common Stock is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company
takes measures (including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to
enforce the transfer restrictions referred to in the Restrictive Stock Legend.


 


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


 


Neither the Trustee nor any agent
shall have any responsibility or liability for any actions taken or not taken by the Depositary, and may assume performance absent written
notice to the contrary.


 


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


 


(f)           If a Holder of any Note or share of Common Stock issued upon conversion of any Note, or an owner of a beneficial interest in any
Global Note, or in a global certificate representing any share of Common Stock issued upon conversion of any Note, transfers such Note
or share in compliance with Rule 144 and delivers to the Company a written request, certifying that it is not, and has not been at any
time during the preceding three (3) months, an Affiliate of the Company, and such other information and confirmations as the Company or
its legal counsel shall reasonably request to confirm compliance with Rule 144, to reissue such Note or share without a Restrictive Notes
Legend or Restrictive Stock Legend, as applicable, in connection with such transfer transaction, then the Company will cause the same
to occur (and, if applicable, cause such Note or share to thereafter be represented by an “unrestricted” CUSIP or ISIN number
in the facilities of the related depositary), and will use its commercially reasonable efforts to cause such occurrence within two (2)
Trading Days of such request.


 


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 receipt of a Company Order 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.


 






    27 


     


    

 


The Trustee or such authenticating
agent may authenticate any such substituted Note and deliver the same upon the receipt of a Company Order and 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 redemption
or 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 evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof.


 


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


 


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 upon receipt of a Company Order 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.


 






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Section 2.08. Cancellation
of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment, repurchase (including upon
a Fundamental Change but not including Notes repurchased pursuant to cash-settled swaps and other derivatives), redemption, registration
of transfer or exchange or conversion (other than any Notes exchanged pursuant to Section 14.12), if surrendered to the Company or any
of its agents, Subsidiaries or Affiliates, as applicable, to be surrendered to the Trustee for cancellation. All Notes delivered to the
Trustee shall be canceled promptly by it in accordance with its customary procedures. Except for any Notes surrendered for registration
of transfer or exchange, or as otherwise expressly permitted by any of the provisions of this Indenture, no Notes shall be authenticated
in exchange for any Notes surrendered to the Trustee for cancellation. The Trustee shall dispose of canceled Notes in accordance with
its customary procedures and, after such disposition, shall deliver 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 the Trustee shall
have no liability for any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and, provided,
further, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on
the Notes or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company
shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.


 


Section 2.10. Additional Notes;
Repurchases. Following both (a) the receipt by the Escrow Agent of the Escrow Release Certificate on or prior to April 1, 2022, and
(b) the Company’s receipt of Stockholder Approval to issue shares of Common Stock upon conversion of the Notes in excess of the
Share Threshold in accordance with the listing standards of The Nasdaq Capital Market, the Company may, without the consent of, or notice
to, the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes hereunder with the same terms as the
Notes initially issued hereunder (other than differences in the issue date, the issue price, interest accrued
prior to the issue date of such additional Notes and, if applicable, restrictions on transfer in respect of such additional Notes) in
an unlimited aggregate principal amount; provided that if any such additional Notes are not fungible with the Notes initially issued
hereunder for U.S. federal income tax or securities law purposes, such additional Notes shall not have the same CUSIP numbers as the Notes
initially issued hereunder. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee (copied to the
Paying Agent and Note Registrar) a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate
and Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request.
In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered
to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a privately negotiated
transaction or public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other
derivatives, in each case, without the consent of or notice to the Holders of the Notes. The Company shall cause any Notes so repurchased
(other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in
accordance with Section 2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their repurchase.


 






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Article
3

Satisfaction and Discharge


 


Section 3.01. Satisfaction
and Discharge. This Indenture and the Notes 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 such instruments reasonably requested by the Company
acknowledging satisfaction and discharge of this Indenture and the Notes, when (a) (i) all Notes theretofore authenticated and delivered
(other than Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided in Section 2.06)
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 and/or shares of Common Stock (or other Reference Property) or a combination thereof, as applicable,
solely to satisfy the Company’s Conversion Obligation, sufficient to pay all of the outstanding Notes and all other sums due and
payable under this Indenture 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.


 


Article
4

Particular Covenants of the Company


 


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


 


Section 4.02. Maintenance
of Office or Agency. The Company will maintain in the United States of America, an office or agency where the Notes may be surrendered
for registration of transfer or exchange or for presentation for payment or repurchase or redemption (“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 located in the United States.


 






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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, for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of
any such other office or agency. The terms “Paying Agent” and “Conversion Agent” include any such
additional or other offices or agencies, as applicable.


 


The Company hereby initially
designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office
or agency in the contiguous United States, where Notes may be surrendered for registration of transfer or exchange or for presentation
for payment or repurchase or redemption or for conversion and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served; provided that the Corporate Trust Office shall not be a place for service of legal process for
the Company.


 


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


 


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


 


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


 


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


 


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


 


The Company shall, on or before
each due date of the principal (including the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase
Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal
(including the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) or
accrued and unpaid 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.


 






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(b)         
If the Company acts as its own Paying Agent, it shall, on or before each due date of the principal (including the Redemption Price,
the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest
on, the Notes, set aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal
(including the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) and
accrued and unpaid interest so becoming due and will promptly notify the Trustee in writing of any failure to take such action and of
any failure by the Company to make any payment of the principal (including the Redemption Price, the Special Mandatory Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become
due and payable. On the occurrence of any Event of Default under Section 6.01(h) or Section 6.01(i), the Trustee shall automatically become
the Paying Agent.


 


(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.


 


(d)         
Subject to applicable escheatment laws, any money and shares of Common Stock deposited with the Trustee, the Conversion Agent or
any Paying Agent or then held by the Company, in trust for the payment of the principal (including the Redemption Price, the Special Mandatory
Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, 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, the Special
Mandatory 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 Trustee shall have no further liability with respect to such fund
or property; 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, the Conversion Agent or such Paying Agent with respect to such trust money and shares of Common Stock,
and all liability of the Company as trustee thereof, shall thereupon cease.


 


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


 


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


 






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(b)         
The Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission, copies of
any annual or quarterly reports (on Form 10-K or Form 10-Q or any respective successor form) that the Company is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or reports, or portions
thereof, subject to, or with respect to which the Company is actively seeking, confidential treatment and any correspondence with the
Commission, and giving effect to any grace period provided by Rule 12b-25 under the Exchange Act (or any successor thereto)). Any such
document or report that the Company files with the Commission via the Commission’s EDGAR system (or any successor system) shall
be deemed to be filed with the Trustee for purposes of this Section 4.06(b) at the time such documents are filed via the EDGAR system
(or such successor). The Trustee shall have no responsibility to determine whether such posting has occurred.


 


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


 


(d)         
If on or after the date that is six months after the last date of original issuance of the Notes, the Company has not satisfied
the reporting conditions (including, for the avoidance of doubt, the requirement for current Form 10 information) set forth in Rule 144(c)
and (i)(2) under the Securities Act, or the Notes are not otherwise Freely Tradeable 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 Additional Interest on the Notes.
Such Additional Interest shall accrue on the Notes at the rate equal to 1.00% per annum of the principal amount of the Notes outstanding
for each day during such period for which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise
Freely Tradeable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates
at any time during the three months immediately preceding) without restrictions pursuant to U.S. securities laws or the terms of this
Indenture or the Notes. As used in this Section 4.06(d), documents or reports that the Company is required to “file” with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Company furnishes to
the Commission pursuant to Section 13 or 15(d) of the Exchange Act. For purposes of this Section 4.06(d), the phrase “restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes” shall not include, for the avoidance of doubt, the
assignment of a restricted CUSIP number, the existence of the Restrictive Notes Legend on Notes in compliance with Section 2.05(c).


 


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


 






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(f)          
Subject to the immediately succeeding sentence, the Additional Interest that is payable in accordance with Section 4.06(d) shall
be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant
to Section 6.03. However, in no event shall Additional Interest payable for the Company’s failure to comply with its obligations
to timely file any document or report that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), as set
forth in Section 4.06(d), together with any Additional Interest that may accrue at the Company’s election as a result of the Company’s
failure to comply with its reporting obligations pursuant to Section 6.03, accrue at a rate in excess of 1.00% per annum pursuant to this
Indenture, regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.


 


(g)         
If Additional Interest is payable by the Company pursuant to Section 4.06(d), the Company shall deliver to the Trustee (copied
to the Paying Agent) an Officer’s Certificate no later than fifteen days prior to the proposed payment date to that effect stating
(i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable. Unless and
until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry
that no such Additional Interest is payable and the Trustee shall not have any duty to verify the Company’s calculation of Additional
Interest. If the Company has paid Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee
an Officer’s Certificate setting forth the particulars of such payment.


 


Section 4.07. Stay, Extension
and Usury Laws. 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 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 Default or Event of Default that occurred during the previous year and, if so, specifying each such Default or Event of Default
and the nature thereof.


 


In addition, the Company shall
deliver to the Trustee, 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; provided that the Company shall not be required to deliver such Officer’s Certificate if such Default or Event of
Default has been cured within the applicable grace period (if any) provided for in this Indenture.


 






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Section 4.09. Stockholder
Approval. The Company shall use reasonable best efforts to include for vote by its stockholders at the regularly scheduled annual
meeting of the stockholders of the Company next to occur following the date hereof, or at the Company’s option, at an earlier special
stockholder’s meeting, in accordance with the listing standards of The Nasdaq Capital Market, the issuance of shares of Common Stock
upon conversion of the Notes in excess of the Share Threshold.


 


Section 4.10. 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.


 


Section 4.11. Escrow of Funds.



 


(a)         
On the date hereof, the Company has entered into the Escrow Agreement pursuant to which it deposited or caused to be deposited
into an escrow account (the “Escrow Account”) an amount equal to $100,396,875, representing seventy-five percent
(75%) of the net proceeds from the offering of the Notes (together with any other property from time to time held by the Escrow Agent
in the Escrow Account, the “Escrowed Funds”).


 


(b)         
The Escrowed Funds will be held in the Escrow Account until the earlier of (i) the date on which the Company delivers to the
Escrow Agent the Escrow Release Certificate and (ii) the Special Mandatory Redemption Date.


 


(c)         
The Company will only be entitled to direct the Escrow Agent to release the Escrowed Funds (in which case the Escrowed Funds will
be paid to or as directed by the Company) (the “Escrow Release”) upon delivery to the Escrow Agent and the Trustee,
on or prior to the Escrow End Date, of an Officer’s Certificate (the “Escrow Release Certificate”), certifying
that the Escrow Conditions have been or, substantially concurrently with the release of the Escrowed Funds, will be satisfied (the date
of the Escrow Release is hereinafter referred to as the “Escrow Release Date”).


 


(d)         
The Escrow Release shall occur promptly upon satisfaction of the conditions set forth above. Upon the occurrence of the Escrow
Release, the Escrow Account shall be reduced to zero and the Escrowed Funds and interest thereon shall be paid out in accordance with
the Escrow Agreement.


 


(e)         
Upon the occurrence of the Escrow Release, the provisions regarding the Special Mandatory Redemption pursuant to Section 16.01
or otherwise shall cease to apply.


 


(f)            The Escrow Agent will invest the Escrowed Property as directed by the Company in such short-term liquid investments (including
bank deposit products) as permitted under the Escrow Agreement, and liquidate such investments, as the Company will from time to time
direct in writing. 


 






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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 not more than fifteen days after each
Regular Record Date beginning with the Regular Record Date on March 15, 2022, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the
names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order
to so provide any such notices) prior to the time such information is furnished, except that no such list need be furnished so long as
the Trustee is acting as Note Registrar.


 


Section 5.02. Preservation
and Disclosure of Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the
names and addresses of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the
Trustee in its capacity as Note Registrar, if so acting. The Trustee may 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 interest on any Note when due and payable, and the default continues for a period of 30 consecutive days;


 


(b)         
default in the payment of all or any part of the Accreted Principal Amount of any Note when due and payable on the Maturity Date,
upon Optional Redemption, upon Special Mandatory 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 and such failure continues for three Business Days;


 


(d)         
failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c), notice of a Make-Whole
Fundamental Change in accordance with Section 14.03(b) or notice of a specified corporate event in accordance with Section 14.01(b)(ii)
or 14.01(b)(iii), in each case when due and such failure continues for five Business Days;


 


(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 aggregate principal
amount at maturity 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;


 






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(g)         
default by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument
under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of
$15,000,000 (or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such
indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable prior
to its stated maturity date or (ii) constituting a failure to pay the principal of any such indebtedness when due and payable (after the
expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise,
and in the cases of clauses (i) and (ii), such acceleration shall not have been rescinded or annulled or such failure to pay or default
shall not have been cured or waived, or such indebtedness is not paid or discharged, as the case may be, within 30 days after written
notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount at maturity
of Notes then outstanding in accordance with this Indenture;


 


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


 


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


 


(j)           
a final judgment or judgments for the payment of $15,000,000 (or its foreign currency equivalent) or more (in each case excluding
any amounts covered by insurance) in the aggregate rendered against the Company or any of its Significant Subsidiaries, 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.


 


Section 6.02. Acceleration;
Rescission and Annulment. If one or more Events of Default (other than an Event of Default specified in Section 6.01(h) or Section
6.01(i) with respect to the Company (and not with respect to a Significant Subsidiary)) 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, unless the Accreted Principal Amount 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 at maturity 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 Accreted Principal
Amount of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same
shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary
notwithstanding. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company (and not with respect
to a Significant Subsidiary) occurs and is continuing, 100% of the Accreted Principal Amount of, and accrued and unpaid interest, if any,
on, all Notes shall become and shall automatically be immediately due and payable.


 






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The immediately preceding paragraph,
however, is subject to the conditions that if, at any time after the Accreted Principal Amount 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 accrued and unpaid interest
upon all Notes and the Accreted Principal Amount of any and all Notes that shall have become due otherwise than by acceleration (with
interest on overdue installments of accrued and unpaid interest, and on such principal at the rate 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 non-payment of the Accreted
Principal Amount of and accrued and unpaid interest, if any, on the 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 at maturity 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 Accreted Principal Amount (including
the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued
and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required or (iii) a failure to pay or deliver, as the case
may be, the consideration due upon conversion of the Notes.


 


Section 6.03. Additional Interest.
Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event
of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) shall, for the first
365 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Notes
at a rate equal to 1.00% per annum of the principal amount of the Notes outstanding for each day during such 365 day period on which such
is continuing. Subject to the last paragraph of this Section 6.03, Additional Interest payable pursuant to this Section 6.03 shall be
in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d). If the Company so elects, such Additional
Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On the 366th day after
such Event of Default (if the Event of Default relating to the Company’s failure to comply with its obligations as set forth in
Section 4.06(b) is not cured or waived prior to such 366th day), the Notes shall be immediately subject to acceleration in accordance
with Section 6.02. The provisions of this paragraph will not affect the rights of Holders in the event of the occurrence of any Event
of Default other than the Company’s failure to comply with its obligations as set forth in Section 4.06(b). In the event the Company
does not elect to pay Additional Interest following an Event of Default in accordance with this Section 6.03 or the Company elected to
make such payment but does not pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided
in Section 6.02.


 






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


 


In no event shall Additional
Interest payable at the Company’s election for failure to comply with its obligations as set forth in Section 4.06(b) as set forth
in this Section 6.03, together with any Additional Interest that may accrue as a result of the Company’s failure to timely file
any document or report that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as
applicable (after giving effect to all applicable grace periods under the Exchange Act and other than reports on Form 8-K), pursuant to
Section 4.06(d), accrue at a rate in excess of 1.00% per annum pursuant to this Indenture, regardless of the number of events or circumstances
giving rise to the requirement to pay such Additional Interest. The Trustee shall have no duty to calculate or verify the calculation
of Additional Interest.


 


Section 6.04. Payments of
Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred and be
continuing, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole
amount then due and payable on the Notes for Accreted Principal Amount and interest, if any, with interest on any overdue Accreted Principal
Amount and interest, if any, at the rate 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.


 






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In the event there shall be pending
proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United
States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company
or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes,
or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise,
to file and prove a claim or claims for the whole amount of the principal and accrued and unpaid interest, if any, in respect of the Notes,
and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as
it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to
the Company 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.


 


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.


 






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


 


First, to the payment
of all amounts due the Trustee (in each of its capacities under this Indenture) hereunder;


 


Second, in case the Accreted
Principal Amount of the outstanding Notes shall not have become due and be unpaid, to the payment of 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 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
borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;


 


Third, in case the Accreted
Principal Amount 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 Special Mandatory Redemption Price and the Fundamental Change
Repurchase Price and any cash due upon conversion) then owing and unpaid upon the Notes for the Accreted Principal Amount and interest,
if any, with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments
of interest at the rate borne by the Notes at such time, 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 Accreted Principal Amount (including, if applicable, the Redemption Price,
the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) and interest without
preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment
of interest, or of any Note over any other Note, ratably to the aggregate of such Accreted Principal Amount (including, if applicable,
the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion)
and accrued and unpaid interest; and


 


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


 






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


 


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


 


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


 


(c)         
such Holders shall have offered to the Trustee such security or indemnity reasonably satisfactory to it against any losses, liabilities,
costs, or expenses;


 


(d)         
the Trustee for 60 days after its receipt of such written 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 at maturity of the Notes then outstanding within such 60-day period pursuant
to Section 6.09,


 


it being understood and intended,
and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or
more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder (it being
understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial
to such Holder), or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common
benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.06, each and every
Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.


 


Notwithstanding any other provision
of this Indenture and any provision of any Note, each Holder shall have the right to institute suit for the enforcement of its right to
receive payment or delivery, as the case may be, of (x) the Accreted Principal Amount (including the Redemption Price, the Special Mandatory
Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z)
the consideration due upon conversion of, 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.


 






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


 


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


 


Section 6.09. Direction of
Proceedings and Waiver of Defaults by Majority of Holders. Subject to the Trustee’s right to receive security or indemnity from
the relevant Holders as described herein, the Holders of a majority of the aggregate principal amount at maturity 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 (it being understood that the Trustee
does not have an affirmative duty to ascertain whether or not such directions are unduly prejudicial to such Holder) or that would involve
the Trustee in personal liability or that conflicts with applicable law or this Indenture.


 


The Holders of a majority in
aggregate principal amount at maturity 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 (x) waive any past Default or Event of Default hereunder and its consequences except any continuing defaults
relating to (i) a default in the payment of accrued and unpaid interest, if any, on, or the Accreted Principal Amount (including the Redemption
Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) 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; and (y) rescind any such acceleration
of the Notes and its consequences if (i) rescission would not conflict with any judgment or decree of a court of competent jurisdiction
and (ii) all existing Events of Default (other than the non-payment of the Accreted Principal Amount of, and interest on, the Notes that
have become due solely by such declaration of acceleration) have been cured or waived. Upon any such waiver the Company, the Trustee and
the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall
have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture
be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.


 






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Section 6.10. Notice of Defaults.
The Trustee shall, within 90 days after a Responsible Officer obtains actual knowledge of the occurrence and continuance of a Default,
deliver to all Holders notice of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before
the giving of such notice; provided that, except in the case of a Default in the payment of the Accreted Principal Amount (including
the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued
and unpaid 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 a Responsible Officer determines in good faith 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 Accreted Principal Amount of or accrued and unpaid interest, if any, on any Note (including, but not
limited to, the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable) on
or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive
the consideration due upon conversion, in accordance with the provisions of Article 14.


 






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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, and if requested, provided, to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability,
cost 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 gross negligence or its own willful misconduct, except that:


 


(a)          
prior to the occurrence of an Event of Default of which a Responsible Officer of the Trustee has written or actual knowledge 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 gross negligence and willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein); provided, however, that the Trustee need not act or refrain from acting based on any certificate
or opinion that it determines to be not in conformity with the requirements of this Indenture. If presented with a non-conforming certificate
or opinion, the Trustee may request the delivering party to re-issue the certificate or opinion in the manner required by this Indenture
before taking any action;


 


(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 in a court of competent jurisdiction in a final and non-appealable decision that the Trustee was grossly negligent
in ascertaining the pertinent facts;


 






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


 


(d)         
whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section 7.01;


 


(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;


 


(h)         
under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes; and


 


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


 


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 hereunder or in the exercise of any of its rights or powers.


 


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


 


(a)         
the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, 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;


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)           
the Trustee shall not be responsible or liable for any action it takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers;


 






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(j)           
the Trustee shall not be required to give any bond or surety in respect of its powers and duties hereunder; and


 


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


 


In no event shall the Trustee
be liable for any special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The Trustee
shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible Officer
shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been
given to the Trustee and actually received by a Responsible Officer at the Corporate Trust Office of the Trustee by the Company or by
any Holder or any agent of any Holder, referencing this Indenture and/or of the Notes and stating that it is a “notice of default.”


 


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, enforceability 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 or any money paid to the Company or upon the Company’s direction under any provision of this
Indenture. The Trustee shall have no responsibility or liability with respect to any information, statement or recital in the Private
Placement Memorandum or other disclosure material prepared or distributed with respect to 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) or Note Registrar, in its individual or any other capacity,
may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent,
Bid Solicitation Agent or Note Registrar.


 


Section 7.05. Monies and Shares
of Common Stock to Be Held in Trust. All monies and shares of Common Stock received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received. Money and shares of Common Stock held by the Trustee
in trust hereunder need not be segregated from other funds 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. The Trustee shall not be obligated to take possession of any Common Stock, whether on conversion or in connection
with any discharge of this Indenture pursuant to Article 3 hereof, but shall satisfy its obligation as Conversion Agent by working through
the stock transfer agent of the Company from time to time as directed by the Company.


 






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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 receive such compensation agreed in writing between the Company and the Trustee 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 and including reasonable attorneys’ fees in connection with its
enforcement of its rights to indemnity herein) except any such expense, disbursement or advance as shall have been caused by its gross
negligence or willful misconduct, as determined by a final, non-appealable decision of a court of competent jurisdiction. The Company
also covenants to indemnify the Trustee or any predecessor Trustee in any capacity under this Indenture and any other document or transaction
entered into in connection herewith and its officers, directors, attorneys, employees and agents and any authenticating agent for, and
to hold them harmless against, any loss, claim (whether asserted by the Company, a Holder or any other Person), damage, liability or expense
(including reasonable attorneys’ fees) incurred without gross negligence or willful misconduct on the part of the Trustee, its officers,
directors, agents or employees, or such agent or authenticating agent, as the case may be 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
and enforcement of this Section 7.06. 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 lien 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, the payment of the Notes, 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(h) or Section 6.01(i) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.


 






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Section 7.07. Officer’s
Certificate and Opinion of Counsel 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 or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s
Certificate and Opinion of Counsel delivered to the Trustee, and such Officer’s Certificate and Opinion of Counsel, in the absence
of gross negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted
by it under the provisions of this Indenture upon the faith thereof.


 


Section 7.08. Eligibility
of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture
Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least the minimum
amount required by the Trust Indenture Act. 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 7.08, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.08, 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 an Officer of the Company, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 45 days
after the giving of such notice of resignation to the Holders, the resigning Trustee may, at the expense of the Company, 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


 






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


 


then, in either case, the Company
may by an Officer’s Certificate remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed
by an Officer’s Certificate, 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 lien 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.


 






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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.


 


No resigning Trustee shall be
responsible or liable for the actions or inactions of any successor Trustee.


 


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 to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall not be less than three Business Days after the date notice to the
Company has been deemed given pursuant to Section 17.03, 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.


 






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Article
8

Concerning the Holders


 


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


 


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


 


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 Accreted Principal
Amount (including the Redemption Price, the Special Mandatory Redemption Price and the Fundamental Change Repurchase Price, if applicable)
of and (subject to Section 2.03) 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. 


 






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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 knows are so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee is not the Company, a Subsidiary thereof
or an Affiliate of the Company or a Subsidiary thereof. In the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly
an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or held by or for the account
of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such Officer’s Certificate
as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose
of any such determination.


 


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


 


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;


 






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


 


(d)         
to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount at maturity
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 at maturity 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 at maturity
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 at maturity of Notes represented at
the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.


 


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


 


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


 


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


 






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Article
10

Supplemental Indentures


 


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


 


(a)         
cure any ambiguity, omission, defect or inconsistency in this Indenture;


 


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


 


(c)         
add guarantees with respect to the Notes;


 


(d)         
secure the Notes;


 


(e)         
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)          
make any change that does not adversely affect the rights of any Holder in any material respect;


 


(g)         
increase the Conversion Rate as provided herein;


 


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


 


(i)           
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 by Section 14.07;


 


(j)           
comply with the rules of any applicable Depositary, including The Depository Trust Company, so long as such amendment does not
materially and adversely affect the rights of any Holder;


 


(k)         
conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Private Placement
Memorandum;


 


(l)           
provide for the issuance of additional Notes in accordance with this Indenture; or


 


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


 


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


 






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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 at maturity of the Notes then outstanding (determined in accordance with Article 8 and including, without
limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company and the Trustee,
at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, the Notes or any
supplemental indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent
of each Holder of an outstanding Note affected, no such supplemental indenture shall:


 


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


 


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


 


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


 


(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 the principal (or Accreted Principal Amount) of and interest on such Holder’s
Note, or the right to receive payment or delivery, as the case may be, of the consideration due upon conversion of 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
Notes; 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.


 






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


 


Holders do not need under this
Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the
substance thereof. After any such supplemental indenture becomes effective, the Company shall deliver to the Holders a notice (with a
copy to the Trustee) briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders (with
a copy to the Trustee), 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
Company, to any modification of this Indenture contained in any such supplemental indenture may, at the Company’s expense, be prepared
and executed by the Company, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section
17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.


 


Section 10.05. Evidence of
Compliance of Supplemental Indenture to Be Furnished Trustee. In addition to the documents required by Section 17.05, the Trustee
shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed
pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture; such Opinion of Counsel
shall include a customary legal opinion stating that such supplemental indenture is the valid and binding obligation of the Company, subject
to customary exceptions and qualifications. The Trustee shall have no responsibility for determining whether any amendment or supplemental
indenture will or may have an adverse effect on any Holder.


 






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Article
11

Consolidation, Merger, Sale, Conveyance and Lease


 


Section 11.01. Company May
Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate with, merge with
or into, or sell, convey, transfer or lease all or substantially all of the consolidated assets of the Company and its consolidated subsidiaries,
taken as a whole, 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;


 


(c)         
if, upon the occurrence of any such transaction, (x) the Notes would become convertible into securities issued by an issuer other
than the resulting, surviving, transferee or successor corporation, and (y) such resulting, surviving, transferee or successor corporation
is a Wholly-Owned Subsidiary of the issuer of such securities into which the Notes have become convertible, such other issuer shall fully
and unconditionally guarantee on a senior basis the resulting, surviving, transferee or successor corporation’s obligations under
the Notes; and


 


(d)         
the Company shall have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel stating that such transaction
complies with 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. Notwithstanding the foregoing,
this Article 11 shall not apply to (i) the Sale Transaction and (ii) any sale, conveyance, transfer or lease of assets between or among
the Company and its direct or indirect Wholly-Owned Subsidiaries and, in such an event, the Company shall not be discharged from its obligations
under the Notes and this Indenture.


 


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 accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case
may be, of any consideration due upon 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, and may thereafter exercise every right and power of the Company
under this Indenture. Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of
the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes
that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that
such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall
in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any
such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person
named as the “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have become such in
the manner prescribed in this Article 11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of
a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture
and the Notes.


 






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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.


 


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


 


Article
13

[Intentionally Omitted]


 


Article
14

Conversion of Notes


 


Section 14.01. Conversion
Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the
right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an
integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time
prior to the close of business on the Business Day immediately preceding July 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 July 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 169.9235 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”); provided that unless and until the Company
obtains stockholder approval to issue shares of Common Stock upon conversion of the Notes in excess of the Share Threshold in
accordance with the listing standards of The Nasdaq Capital Market (the “Stockholder Approval”), the Company
shall be required to (and otherwise deemed to) elect Cash Settlement in respect of all Notes submitted for conversion pursuant to
Section 14.02(a). Neither the Trustee nor the Conversion Agent shall have any obligation to monitor the Share Threshold or whether
any conversion is in compliance therewith.


 






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(b)         
(i) Prior to the close of business on the Business Day immediately preceding July 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 in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the
product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such Trading Day.
The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition of Trading
Price set forth in this Indenture. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading
Price per $1,000 principal amount of Notes unless the Company has requested such determination in writing and has provided the Bid Solicitation
Agent with the names and contact information of the three independent nationally recognized securities dealers the Company has selected
for this purpose, 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 of at least
$2,000,000 aggregate principal amount of Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal
amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock on such Trading
Day and the Conversion Rate on such Trading Day. At such time, the Company shall (1) instruct the three independently recognized securities
dealers to deliver bids to the Bid Solicitation Agent, and (2) instruct the Bid Solicitation Agent (if other than the Company) to determine,
or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater
than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is
not acting as Bid Solicitation Agent, and the Company does not, when the Company is required to, instruct the Bid Solicitation Agent to
determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company
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)
in writing. Any such determination shall be conclusive absent manifest error. If, at any time after the Trading Price condition set forth
above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price of the Common Stock and the Conversion Rate for such Trading Day, the Company shall so notify the Holders of the Notes,
the Trustee and the Conversion Agent (if other than the Trustee) in writing.


 






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


 


(A) issue to all or substantially
all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan) 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 Company in good
faith, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such
distribution, then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the Conversion Agent (if other
than the Trustee) at least 60 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. Once the Company
has given such notice, Holders may surrender all or any portion of their 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, even if the Notes are not otherwise convertible at such time. Holders
may not convert their Notes pursuant to this subsection (b)(ii) if they participate, at the same time and upon the same terms as holders
of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in clause (A) or (B) of this subsection
(b)(ii) without having to convert their Notes as if they held a number of shares of Common Stock equal to the Conversion Rate as of the
Record Date for such issuance or distribution, multiplied by the principal amount (expressed in thousands) of Notes held by such
Holder.


 






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(iii)          If (A) a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close
of business on the Business Day immediately preceding July 1, 2027, regardless of whether a Holder has the right to require the Company
to repurchase the Notes pursuant to Section 15.02, or (B) if the Company is a party to a Merger Event (other than a Reorganization Merger
Event) prior to the close of business on the Business Day immediately preceding July 1, 2027 (each such Fundamental Change, Make-Whole
Fundamental Change or Merger Event, a “Corporate Event”), all or any portion of a Holder’s Notes may be surrendered
for conversion at any time from or after the effective date of the Corporate Event until 35 Trading Days after the effective date of such
Corporate Event, or, if such Corporate Event also constitutes a Fundamental Change, until the close of business on the Business Day immediately
preceding the related Fundamental Change Repurchase Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other
than the Trustee) in writing no later than the effective date of such Corporate Event.


 


(iv)          Prior to the close of business on the Business Day immediately preceding July 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 March 31, 2022 (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.


 


(v)         
If the Company calls any of the Notes for redemption (including pursuant to any Special Mandatory Redemption) pursuant to Article
16 (or if any Notes are deemed to be called for redemption as contemplated by the penultimate sentence of Section 16.03(d)) prior to the
close of business on the Business Day immediately preceding July 1, 2027, the Holder of Notes called for redemption may surrender such
Notes (or any portion thereof) for conversion at any time prior to the close of business on the second Scheduled Trading Day prior to
the Redemption Date, even if the Notes are not otherwise convertible at such time. After that time, the right to convert pursuant to this
subsection (b)(v) shall expire, unless the Company defaults in the payment of the Redemption Price or Special Mandatory Redemption Price,
in which case a Holder of the Notes called for redemption pursuant to Article 16 may convert such Notes (or any portion thereof) until
the Redemption Price or Special Mandatory Redemption Price, as applicable, has been paid or duly provided for.


 


For the avoidance of doubt, neither
the Trustee nor the Conversion Agent shall have any responsibility or obligation (i) to monitor the stock price or make any calculation
or determination whether or not an event triggering the rights of the Holders to surrender Notes for conversion has occurred, (ii) to
notify the Company, the Depositary, or the Holders if the Notes have become subject to conversion, or (iii) to ensure timely delivery
of any Settlement Amounts.


 


Section 14.02. Conversion
Procedure; Settlement Upon Conversion.


 


(a)         
Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall satisfy its
Conversion Obligation by paying or delivering, as the case may be, to the converting Holder, in respect of each $1,000 principal amount
of Notes being converted, (x) cash (“Cash Settlement”), (y) shares of Common Stock in accordance with subsection (j)
of this Section 14.02 (“Physical Settlement”), or (z) a combination of cash and shares of Common Stock, together with
cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02
(“Combination Settlement”), at its election, as set forth in this Section 14.02. Unless and until the Stockholder Approval
is obtained, the Company shall be required to (and otherwise deemed to) elect Cash Settlement for all Notes submitted for conversion.


 






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


 


(ii)           Except for any conversions for which the relevant Conversion Date occurs during a Redemption Period, and any conversions for which
the relevant Conversion Date occurs on or after July 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.


 


(iii)          If, in respect of any Conversion Date (or any conversions for which the relevant Conversion Date occurs during a Redemption Period,
or for which the relevant Conversion Date occurs on or after July 1, 2027), the Company elects a Settlement Method, the Company shall
provide a notice (the “Settlement Notice”) to Holders, the Trustee and the Conversion Agent of such election in respect
of such Conversion Date (or such period, as the case may be), and the Company 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 (i) any conversions of Notes called (or deemed called) for redemption for which the related Conversion Date occurs during
the related Redemption Period, in such Notice of Redemption or (ii) any conversions for which the relevant Conversion Date occurs on or
after July 1, 2027, no later than July 1, 2027) (in each case, the “Settlement Method Election Date”). If the Company
does not make such an election prior to the Settlement Method Election Date, the Company shall no longer have the right to elect a Settlement
Method with respect to any conversion on such Conversion Date or during such period, and the Company will be deemed to have elected the
Default Settlement Method with respect to such conversion. If the Company timely elects Combination Settlement (or is deemed to have elected
Combination Settlement), but does not timely notify converting Holders, the Trustee and the Conversion Agent (if other than the Trustee)
of the Specified Dollar Amount per $1,000 principal amount of Notes to be converted, such Specified Dollar Amount will be deemed to be
$1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified
Dollar Amount will not constitute a default under this Indenture.


 






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By written notice to Holders,
the Trustee and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method
prior to July 1, 2027; provided that unless and until the Company obtains Stockholder Approval, the Company is required to (and
otherwise deemed to) elect Cash Settlement for all Notes submitted for conversion. In addition, by written notice to the Holders of the
Notes, the Company may, following receipt of the Stockholder Approval and prior to July 1, 2027, at its option, elect to irrevocably fix
the Settlement Method to any Settlement Method that the Company is then permitted to elect, including Combination Settlement with a Specified
Dollar Amount per $1,000 principal amount of Notes of $1,000, or with an ability to continue to set the Specified Dollar Amount per $1,000
principal amount of Notes at or above a specific amount set forth in such election notice. Concurrently with providing notice to all Holders
of Notes of a change to the Default Settlement Method or an election to irrevocably fix the Settlement Method, the Company will promptly
either post an announcement on its website or issue a report on Form 8-K (or any successor form) disclosing such Default Settlement Method
or irrevocably fixed Settlement Method. If the Company changes the Default Settlement Method or irrevocably elects to fix the Settlement
Method, in either case, to Combination Settlement with an ability to continue to set the Specified Dollar Amount per $1,000 principal
amount of Notes at or above a specific amount, the Company will, after the date of such change or election, as the case may be, inform
Holders converting their Notes, the Trustee and the Conversion Agent, in writing, of such Specified Dollar Amount no later than the relevant
Settlement Method Election Date, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific
amount set forth in the change or election notice or, if no specific amount was set forth in the change or election notice, such Specified
Dollar Amount will be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an irrevocable election
will apply to all Note conversions on Conversion Dates occurring subsequent to delivery of such notice; provided, however, that
no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For
the avoidance of doubt, such an irrevocable election, if made, will be effective without the need to amend this Indenture or the Notes,
including pursuant to the provisions described in Section 10.01(m). However, the Company may nonetheless choose to execute such an amendment
at its option.


 


(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:


 


(1) if the Company elects (or
is deemed to have elected) Physical Settlement, the Company will 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;


 


(2) if the Company elects (or
is deemed to have elected) Cash Settlement, the Company will 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 25 consecutive Trading Days during
the related Observation Period; and


 


(3) if the Company elects (or
is deemed to have elected) Combination Settlement, the Company will pay or deliver, as the case may be, to the converting Holder in respect
of each $1,000 principal amount of Notes being converted a Settlement Amount equal to the sum of the Daily Settlement Amounts for each
of the 25 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 and the Daily
Conversion Values 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 and the Daily Conversion Values 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.


 






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


 


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


 


(c)         
A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion
Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section
14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion
Obligation on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, 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.


 






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(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.


 


(h)          Upon
conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest (including original issue
discount), if any, except as set forth in this Section 14.02(h), and the Company will not adjust the Conversion Rate for any accrued
and unpaid interest (including original issue discount) on any converted Notes. 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 interest (including original issue discount), if any, to, but not including, the relevant Conversion Date. As a result,
accrued and unpaid interest (including original issue discount), 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 the Common Stock, accrued and unpaid interest (including original issue discount) will be deemed to be paid first out
of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a
Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as of the
close of business on such Regular Record Date will receive the full amount of interest payable on such Notes (to, but not including
the corresponding Interest Payment Date) on the corresponding Interest Payment Date notwithstanding the conversion. Notes
surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the
immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so
converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder of record on such
Regular Record Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date
immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular Record Date and
on or prior to the second Scheduled Trading Day immediately following the corresponding Interest Payment Date; (3) if the Company
has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day
immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted
Amounts exist at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record at
the close of business on the Regular Record Date immediately preceding the Maturity Date shall receive the full interest payment due
on the Maturity Date in cash regardless of whether their Notes have been converted following such Regular Record Date.


 






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(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 such Conversion Date (in the case of Physical Settlement) or the last Trading Day of the relevant Observation
Period (in the case of Combination Settlement). 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 (or,
if such Conversion Date is not a Trading Day, the immediately preceding Trading Day), 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.


 


Section 14.03. Increased Conversion
Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or during a Redemption Period. (a)
If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes
in connection with such Make-Whole Fundamental Change or (ii) the Company issues a Notice of Redemption as provided under Section 16.03,
and a Holder elects to convert such Notes with a Conversion Date during the related Redemption Period, the Company shall, in each case,
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 Conversion Date occurs during the period
from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on 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”).
For the avoidance of doubt, the Company shall not increase the Conversion Rate pursuant to the provisions of this Section 14.03 on account
of an anticipated Fundamental Change that does not occur or for a Special Mandatory Redemption. If the Company issues a Notice of Redemption
as set forth under Section 16.03 the Company shall increase the Conversion Rate during the related Redemption Period only with respect
to conversions of Notes called for Optional Redemption (or deemed called for Optional Redemption as contemplated by the penultimate sentence
of Section 16.03(d)), and not for Notes not called for redemption. Accordingly, if the Company elects to redeem fewer than all of the
outstanding Notes as described under Section 16.05, Holders of the Notes not called for Optional Redemption will not be entitled to convert
such Notes on account of the Notice of Redemption and will not be entitled to an increased Conversion Rate for conversions of such Notes
on account of the Notice of Redemption during the related Redemption Period if such Notes are otherwise convertible, except in the limited
circumstances set forth in the penultimate sentence of Section 16.03(d).


 






    69 


     


    

 


(b)         
Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or of Notes called for Optional Redemption
with a Conversion Date occurring during the related Redemption Period, the Company shall, at its option, satisfy the related Conversion
Obligation in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental
Change described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change
is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the Conversion
Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount of cash per $1,000
principal amount of converted Notes equal to the Conversion Rate (including any increase to reflect the Additional Shares), multiplied
by such Stock Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the second Business
Day following the Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee)
of the Effective Date of any Make-Whole Fundamental Change in writing 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 below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (in each case, the “Effective
Date”) or the Redemption Notice Date, as applicable, 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 on the Redemption Notice Date, as applicable. If the holders
of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of
the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the
average of the Last Reported Sale Prices of the Common Stock over the five consecutive Trading Day period ending on, and including, the
Trading Day immediately preceding the applicable Effective Date of the Make-Whole Fundamental Change or the Redemption Notice Date, as
the case may be. In the event that a conversion during a Redemption Period would also be deemed to be in connection with a Make-Whole
Fundamental Change, a Holder of the Notes to be converted will be entitled to a single increase to the Conversion Rate with respect to
the first to occur of the applicable Redemption Notice Date or the Effective Date of the applicable Make-Whole Fundamental Change, and
the later event will be deemed not to have occurred for purposes of this Section 14.03.


 






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


 


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


 


	Stock Price
	
    Effective Date/ 

    Redemption Notice Date 
	$4.28	$4.50	$5.25	$5.885	$6.50	$7.65	$10.00	$15.00	$25.00	$37.50	$50.00
	November 1, 2021	40.3569	37.8733	31.1714	26.9890	23.7985	19.3229	13.5700	7.5780	3.1088	1.1891	0.4382
	October 1, 2022	43.8175	37.8733	29.2362	25.1674	22.1108	17.8889	12.5530	7.0447	2.9120	1.1101	0.4010
	October 1, 2023	47.6578	37.8733	27.1810	23.1232	20.1585	16.1830	11.3190	6.4007	2.6904	1.0336	0.3696
	October 1, 2024	51.5671	37.8733	24.9733	20.7018	17.7354	13.9725	9.6760	5.5240	2.3852	0.9381	0.3380
	October 1, 2025	55.5466	37.8733	22.5448	17.5854	14.4323	10.8575	7.3330	4.2307	1.8900	0.7720	0.2820
	October 1, 2026	59.5976	37.8733	22.5448	13.1130	9.3923	6.2065	4.0200	2.3580	1.0924	0.4712	0.1802
	October 1, 2027	63.7214	37.8733	22.5448	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000



 


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


 


(ii)           if
the Stock Price is greater than $50.00 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


 






    71 


     


    

 


(iii)          if
the Stock Price is less than $4.28 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 233.6449 shares of Common Stock,
subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.


 


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


 


Section 14.04. Adjustment
of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs,
except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case
of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the
Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without having to
convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal
amount (expressed in thousands) of Notes held by such Holder. Neither the Trustee nor the Conversion Agent shall have any responsibility
to verify the accuracy of any adjustment to the Conversion Rate. The Company shall notify the Holders, the Trustee and the Conversion
Agent promptly in writing of any adjustments to the Conversion Rate, which adjustments shall be conclusive and binding on holders, absent
manifest error.


 


(a)         
If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock to all or
substantially all holders 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:


 


	CR1 = CR0 ×	
    OS1 

	OS0


  


where,


 


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




 


	CR1    =	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,
as applicable; and




 






    72 


     


    

 


	OS1    =	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share
combination, as applicable.




  


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 in good faith 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 (other than pursuant
to a stockholders rights plan) 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:


 


	CR1 = CR0 ×	
    OS0
+ X 

	OS0 + Y


 


 


where,


 


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




 


	CR1   =	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.



 






    73 


     


    

 


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, or if no such rights,
options or warrants are exercised prior to their expiration, 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
the Common Stock to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of
the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of
announcement of such 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 Company in good faith.


 


(c)         
If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company
or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock,
excluding (i) dividends, distributions or issuances as to which an adjustment was effected (or would be effected, disregarding the 1%
Provision) pursuant to Section 14.04(a) or Section 14.04(b), (ii) rights issued under a stockholders rights plan (except as provided in
Section 14.11), (iii) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 14.04(d) shall
apply, (iv) distributions of Reference Property in exchange for, or upon conversion of, Common Stock in a Merger Event and (v) Spin-Offs
as to which the provisions set forth 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:


 


	CR1 = CR0 ×	
    SP0 

	SP0 − FMV





 


where,


 


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




 


	CR1   =	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;




 






    74 


     


    

 


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




 


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



 


Any increase made under the portion
of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution.
If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect
if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater
than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect
of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed
Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common
Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.


 


With respect to an adjustment
pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of
Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary, other business unit or Affiliate 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:


 


 


 


	CR1 = CR0 ×	
    FMV0
+ MP0 

	MP0


 


 


where,


 


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




 


	CR1   =	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




 






    75 


     


    

 


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




 


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


 


If any dividend or distribution
that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately decreased, effective as of the
date the Board of Directors determines not to pay or make such dividend or distribution, to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared or announced.


 


For purposes of this Section
14.04(c) (and subject in all respects 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.


 






    76 


     


    

 


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 the Conversion Rate shall
be adjusted based on the following formula:


 


	CR1 = CR0 ×	
    SP0 

	SP0 − C


 


 


where,


 


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




 


	CR1   =	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;




 






    77 


     


    

 


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




 


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



 


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


 


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


 


	CR1 = CR0  x	
    AC + (SP1
x OS1) 

	OS0 x SP1


 


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;




 


	CR1   =	the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the
Trading Day next succeeding the date such tender or exchange offer expires;




 


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



 


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




 






    78 


     


    

 


	OS1   =	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




 


	SP1   =	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including,
the Trading Day next succeeding the date such tender or exchange offer expires.




 


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


 


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


 


(f)          
Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if: (i) a Conversion Rate adjustment
for any dividend or distribution becomes effective on any Ex-Dividend Date as described in this Section 14.04; (ii) a Note is to be converted
for which the conversion consideration includes shares of Common Stock; (iii) any Trading Day in the Observation Period for such conversion
occurs on or after such Ex-Dividend Date and on or before the related Record Date; (iv) the consideration due upon such conversion includes
any whole shares of Common Stock based on a Conversion Rate that is adjusted for such dividend or distribution; and (v) the Holder would
be entitled to participate in such dividend or distribution on account of such shares, then, notwithstanding anything to the contrary:
the Conversion Rate adjustment relating to such Ex-Dividend Date shall be made for such conversion in respect of such Trading Day, but
the shares of Common Stock issuable with respect to such Trading Day based on such adjusted conversion rate shall not be entitled to participate
in such dividend or distribution.


 






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(g)         
If a Holder has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would become 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.


 


(h)         
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.


 


(i)           
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 The Nasdaq Capital Market and/or the principal exchange or market where the Common
Stock is then traded, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business
Days if the Company determines, in good faith, 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 The Nasdaq Capital Market and/or the principal exchange or market where
the Common Stock is then traded, 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.


 


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


 


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


 


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


 


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


 






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


 


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


 


(vi)          upon the repurchase of any shares of Common Stock that is not a tender offer or exchange offer of the nature described under clause
(e) of this Section 14.04 (including structured or derivative transactions and open market repurchases of shares of Common Stock, or transactions
pursuant to a stock repurchase program approved by the Board of Directors or otherwise);


 


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


 


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


 


(k)         
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.


 


(l)           
If an adjustment to the Conversion Rate otherwise required by this Section 14.04 would result in a change of less than 1% to the
Conversion Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry forward such adjustment, except
that all such deferred adjustments must be given effect immediately upon the earliest to occur of the following: (i) when all such deferred
adjustments would result in an aggregate change of at least 1% to the Conversion Rate; (ii) on the Conversion Date of, or any Trading
Day of an Observation Period for, any Note; (iii) the date a Fundamental Change and/or Make-Whole Fundamental Change; (iv) if the Company
calls any Notes for redemption; or (v) July 1, 2027, in each case, unless the adjustment has already been made. The provision described
in the immediately preceding sentence of this Section 14.04(l) is referred to herein as the “1% Provision.”


 


(m)            
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.


 






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


 


Section 14.05. Adjustments
of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs,
the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the Stock
Price for purposes of a Make-Whole Fundamental Change or for purposes of determining whether the Company may issue a Notice of Redemption),
the Company shall make appropriate adjustments in good faith and in a commercially reasonable manner to each to account for any adjustment
to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date,
Effective Date or expiration date, as the case may be, of the event occurs at any time during the period when the Last Reported Sale Prices,
the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.


 


Section 14.06. Shares to Be
Fully Paid. The Company shall maintain, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury,
sufficient shares of Common Stock to provide for the 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 the Company had elected to deliver the maximum number of shares
of Common Stock allowed under Section 14.02(a)(iii) as consideration for its Conversion Obligation.


 


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


 


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


 


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


 


(iv)          any statutory share exchange,


 






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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 the effective time of the Merger Event, the Company or the successor
or acquiring person, as the case may be, shall execute with the Trustee a supplemental indenture, without the consent of the Holders,
providing that 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 or the successor or acquiring company, as the case may be, shall continue
to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, in respect of the remainder,
if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, in accordance with Section 14.02,
(B) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (C)
any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section
14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock
would have received in such Merger Event and (D) 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 the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit
of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable
to one share of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event, then for all 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) in writing of such weighted average as soon as reasonably practicable after such determination is made.


 






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If the Reference Property in
respect of any Merger Event includes, in whole or in part, shares of Common Equity or securities convertible into or exchangeable for
shares of Common Equity, the supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution
and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14 with respect
to the portion of Reference Property consisting of such Common Equity or securities convertible into or exchangeable for shares of Common
Equity. If the Reference Property in respect of any such Merger Event includes shares of stock, securities or other property or assets,
other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporation, as the case may
be, in such Merger Event and such other company, if an affiliate of the Company (or, if the Company does not survive the Merger Event,
an affiliate of the successor or purchasing company) is party to the transaction, such other company shall also execute such supplemental
indenture, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders as the Company
shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights
set forth in Article 15.


 


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


 


(c)         
The Company shall not become a party to any Merger Event unless its terms are reasonably consistent with this Section 14.07 and
in compliance with Section 14.10. 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.


 


(a)         
The Company covenants that it shall endeavor promptly to comply with all federal and state securities laws regulating the issuance
and delivery of shares of Common Stock upon the conversion of Notes, if any, and shall issue such shares of Common Stock in accordance
therewith including, as permitted thereunder, obtaining any required approval of or registration with any governmental authority with respect
to such Common Stock.


 


(b)         
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.


 






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


 


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


 


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


 


(b)         
voluntary or involuntary dissolution, liquidation or winding-up of the Company;


 






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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, a notice stating (i)
the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is
not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the
Company or one of its Subsidiaries, or (ii) the date on which such dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock
for securities or other property deliverable upon such dissolution, liquidation or winding-up. Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, dissolution, liquidation
or winding-up.


 


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


 


Section 14.12. Exchange in
Lieu of Conversion.


 


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


 


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


 






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


 


Article
15

Repurchase of Notes at Option of Holders


 


Section 15.01. [Intentionally
Omitted].


 


Section 15.02. Repurchase
at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder
shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or
any portion of the principal amount thereof properly surrendered and not validly withdrawn pursuant to Section 15.03 that is equal to
$1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”) specified by the Company
that is not less than 20 Business Days or more than 35 Business Days following the date of the Fundamental Change Company Notice at a
repurchase price equal to 100% of the Accreted Principal Amount thereof, plus accrued and unpaid interest on the principal amount
of the Notes to be repurchased to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase
Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment
Date to which such Regular Record Date relates, in which case the Company shall instead pay, on or, at the Company’s election, before
such Interest Payment Date, the full amount of accrued and unpaid interest on the principal amount of the Notes to be repurchased to Holders
of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the Accreted 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 applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case,
on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and


 


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


 






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


 


(1) the certificate numbers of
the Notes to be delivered for repurchase;


 


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


 


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


 


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


 


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


 


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


 


(c)         
On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide
to all Holders and the Trustee, the Conversion Agent (if other than the Trustee) and the Paying Agent (if other than the Trustee) a written
notice (the “Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change
and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall
be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of
the Depositary. Simultaneously with providing such notice, the Company shall publish such information on the Company’s website or
through such other public medium as the Company may use at that time, including through the filing of a Form 8-K with the Commission.
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;


 






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(v)         
the Accreted Principal Amount;


 


(vi)         the Fundamental Change Repurchase Date;


 


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


 


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


 


(ix)           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 validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and


 


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


 


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


 


At the Company’s written
request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however,
that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company and delivered to the Trustee at
least three Business Days prior (or such shorter period as shall be acceptable to the Trustee).


 


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


 


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


 






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


 


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


 


(ii)           the certificate number of the Note in respect of which such notice of withdrawal is being submitted, and


 


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


 


If the Notes are Global Notes,
such notice of withdrawal must comply with applicable procedures of the Depositary.


 


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


 






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(b)         
If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by
the Company) holds money sufficient to pay the Fundamental Change Repurchase Price (and, to the extent not included in the Fundamental
Change Repurchase Price, accrued and unpaid interest, if applicable) of the Notes to be repurchased on such Fundamental Change Repurchase
Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such
Notes will cease to be outstanding, (ii) interest will cease to accrue on the principal amount of such Notes (whether or not book-entry
transfer of the Notes has been made or whether or not the Notes have been delivered to the Trustee or Paying Agent) and the Accreted Principal
Amount will cease to accrete and (iii) all other rights of the Holders of such Notes will terminate (other than the right to receive the
Fundamental Change Repurchase Price and, to the extent not included in the Fundamental Change Repurchase Price, accrued and unpaid interest,
if applicable).


 


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


 


(d)          For
the avoidance of doubt, neither the Trustee nor the Paying Agent shall be responsible for determining any calculations in this
Article 15.


 


Section 15.05. Covenant to
Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer upon a Fundamental Change pursuant to
this Article 15, the Company will, if required:


 


(a)         
comply in all material respects with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange
Act that may then be applicable;


 


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


 


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


 


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


 


However, to the extent that the
obligations of the Company to offer to repurchase and to repurchase Notes pursuant to the provisions described above conflict with any
law or regulation adopted after the date of this Indenture and that is applicable to the Company, the Company’s compliance with
such law or regulation shall not be considered to be a default of those obligations.


 


Article
16

Redemption


 


Section 16.01. Special Mandatory
Redemption.


 


(a)         
If (x) the Escrow Agent has not received the Escrow Release Certificate, on or prior to the Escrow End Date or (y) the Company
notifies the Escrow Agent and the Trustee in writing that the Refinery Purchase Agreement has been terminated in accordance with its terms
(the non-receipt of such Escrow Release Certificate on or prior to the Escrow End Date or the delivery of such notice of termination is
referred to as a “Special Mandatory Redemption Event”), then:


 






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(i)            the Notes shall be subject to a special mandatory redemption (a “Special Mandatory Redemption”) at a price
equal to 100% of the Accreted Principal Amount thereof, plus accrued and unpaid interest to, but excluding the Special Mandatory Redemption
Date, plus interest that would have accrued on the Notes from, and including, the Special Mandatory Redemption Date to, and including,
the date that is nine (9) months after the Special Mandatory Redemption Date (unless the Special Mandatory Redemption Date falls after
a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case the Company shall pay on or,
at its election, before, such Interest Payment Date, the full amount of accrued and unpaid interest to the Holders of record as of the
close of business on such Regular Record Date, and the Special Mandatory Redemption Price will be equal to 100% of the Accreted Principal
Amount thereof, plus interest that would have accrued on the Notes from, and including, such Interest Payment Date to, and including,
the date that is nine (9) months after the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”);
and 


 


(ii)           the Escrow Agent shall, without the requirement of notice to or action by the Company, the Trustee or any other person, liquidate
and release the Escrowed Funds (including investment earnings thereon and proceeds thereof) to the Trustee, to be applied towards the
Special Mandatory Redemption Price.


 


(b)          Upon
the occurrence of a Special Mandatory Redemption Event, the Company shall promptly (but in no event later than five (5) calendar days
following such Special Mandatory Redemption Event) send (or cause to be sent) a notice of such Special Mandatory Redemption (such notice,
the “Special Mandatory Redemption Notice” and the date of delivery for such Special Mandatory Redemption Notice, the
“Special Redemption Notice Date”) to the Escrow Agent, the Trustee and Holders of the Notes. The Special Mandatory
Redemption Notice shall inform Holders that the Notes shall be redeemed on the redemption date set forth in such Special Mandatory Redemption
Notice (which shall be no earlier than 30 and no later than 45 Scheduled Trading Days from the date such notice is given (such date,
the “Special Mandatory Redemption Date”)) and that all of the outstanding Notes will be redeemed at the Special Mandatory
Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the Holders. On the Business
Day immediately preceding the Special Mandatory Redemption Date, the Company shall deposit with the Trustee funds sufficient, when taken
together with the funds received by the Trustee from the Escrow Account, to pay the Special Mandatory Redemption Price, plus fees and
expenses of the Trustee and the Escrow Agent. If such deposit is made as provided above, the Notes will cease to bear interest and the
Accreted Principal Amount shall cease to accrete on and after the Special Mandatory Redemption Date. On the Special Mandatory Redemption
Date, after deduction of the Trustee’s and Escrow Agent’s reasonable fees and expenses, if any, the Trustee shall pay to
the Company any Escrowed Funds in excess of the amount necessary to effect the Special Mandatory Redemption. 


 


(c)         
The Company shall not increase the Conversion Rate for any Notes that are called for Special Mandatory Redemption and converted
with a Conversion Date occurring during a Redemption Period as described in Section 14.01.


 






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Section 16.02. Optional Redemption.
No sinking fund is provided for the Notes. Prior to October 6, 2024, the Notes shall not be redeemable at the Company’s option.
On a Redemption Date occurring on or after October 6, 2024 and on or before the 30th Scheduled Trading Day before the Maturity Date, the
Company may redeem (an “Optional Redemption”) for cash all or part of the Notes (subject to the Partial Redemption
Limitation), at the Company’s option, at the Redemption Price, only if (1) 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 Notice of Redemption during any 30 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date (the “Redemption Notice Date”) on which the Company
provides the Notice of Redemption in accordance with Section 16.03; and (2) the Liquidity Conditions have been satisfied.


 


Section 16.03. 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 16.02, it shall fix a date for redemption (each, a “Redemption Date”)
and it or, at its written request received by the Trustee not less than five Business Days prior to the Redemption Notice 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 written notice of such Optional Redemption (a “Notice of Redemption”) (in all cases, the
text of such Notice of Redemption shall be prepared by the Company) not less than 30 nor more than 45 Scheduled Trading Days prior to
the Redemption Date to each Holder so to be redeemed in whole or in part; provided, however, that, if the Company shall
give such notice, it shall also give written notice of the Redemption Date to the Trustee, the Conversion Agent (if other than the Trustee)
and the Paying Agent (if other than the Trustee). In the case of any Optional Redemption in part, Holders of Notes not called for Optional
Redemption will not be entitled to an increased Conversion Rate for such Notes in accordance with Section 14.03 and Section 16.03(c).
The Redemption Date must be a Business Day.


 


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


 


(c)         
Each Notice of Redemption shall specify:


 


(i)           
the Redemption Date (which must be a Business Day);


 


(ii)           the Redemption Price;


 


(iii)          the Accreted Principal Amount;


 


(iv)          that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, that interest on the
principal amount of the Notes called for redemption, if any, shall cease to accrue on and after the Redemption Date and that the Accreted
Principal Amount on the Notes called for redemption shall cease to accrete on and after the Redemption Date;


 






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


 


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


 


(vii)         the procedures a converting Holder must follow to convert its Notes and the forms and amounts of consideration payable by the Company
upon conversion;


 


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


 


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


 


(x)         
  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,
which principal amount must be $1,000 or a multiple thereof.


 


A Notice of Redemption shall
be irrevocable.


 


(d)         
If fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are Global Notes, the Notes to be redeemed
shall be selected by the Depositary in accordance with the applicable rules and procedures of the Depositary. If fewer than all of the
outstanding Notes are to be redeemed and the Notes to be redeemed are not Global Notes, the Notes to be redeemed shall be selected by
the Trustee pro rata. If any Note selected for partial redemption is submitted for conversion in part after such selection, the portion
of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for redemption, subject, in
the case of Notes represented by a Global Note, to the Depositary’s applicable procedures. If fewer than all of the outstanding
Notes are to be redeemed and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able
to determine, before the close of business on the 30th scheduled Trading Day immediately before the relevant Redemption Date, whether
such Note or beneficial interest, as applicable, is to be redeemed pursuant to such redemption, then such Holder or owner, as applicable,
will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the second Scheduled
Trading Day prior to such Redemption Date, unless the Company defaults in the payment of the Redemption Price pursuant to Section 14.01(b)(v),
in which case such Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until
the Redemption Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for redemption.
The Trustee shall not be obligated to make any determination in connection with the foregoing.


 






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Section 16.04. Payment of
Notes Called for Redemption. (a) If any Notice of Redemption has been given in respect of the Notes in accordance with Section 16.03,
the Notes shall become due and payable on the Redemption Date at the place or places stated in the Notice of Redemption and at the applicable
Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Notice of Redemption, the Notes shall
be paid and redeemed by the Company at the applicable Redemption Price. From and after the Redemption Date (unless the Company shall default
in the payment of the Redemption Price or accrued and unpaid interest) such Notes shall cease to bear interest and the Accreted Principal
Amount shall cease to accrete. If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal
amount and any premium shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes and the Accreted Principal
Amount shall continue to accrete.


 


(b)         
Prior to 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company
or a Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount
of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes
to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be
made on the Redemption Date for such Notes. The Paying Agent shall, promptly after such payment and upon written demand by the Company,
return to the Company any funds in excess of the Redemption Price.


 


Section 16.05. Restrictions
on Redemption. No Notes may be redeemed on any date if the Accreted 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).


 


Section 16.06. Partial Redemption
Limitation. If the Company elects to redeem fewer than all of the outstanding Notes in respect of any Optional Redemption, at least
$50,000,000 aggregate principal amount of Notes must be outstanding and not subject to redemption as of the relevant Redemption Notice
Date (such requirement, the “Partial Redemption Limitation”).


 


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.


 






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Section 17.03. Addresses
for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the
Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served
by overnight courier or by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee) to Vertex Energy, Inc., 1331 Gemini St., Suite 250, Houston, Texas 77058, Attention:
Chief Financial Officer. 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, whether by mail or electronically, upon actual
receipt by the Trustee.


 


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


 


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


 


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


 


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


 


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


 


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.


 






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


 


Section 17.05. Evidence of
Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this Indenture, the Company shall 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.


 


Each Officer’s Certificate
and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance
with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a) a statement that the
person signing such certificate is familiar with the requested action and this Indenture; (b) a brief statement as to the nature and scope
of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement that, in the judgment
of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed judgment
as to whether or not such action is permitted by this Indenture; and (d) a statement as to whether or not, in the judgment of such person,
such action is permitted by this Indenture and that all conditions precedent to such action have been complied with; provided that
no Opinion of Counsel shall be required to be delivered in connection with (1) the original issuance of Notes on the date hereof under
this Indenture, or (2) a request by the Company that the Trustee deliver a notice to Holders under the Indenture where the Trustee receives
an Officer’s Certificate with respect to such notice. With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s
Certificate or certificates of public officials.


 


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 such Opinion
of Counsel.


 


Section 17.06. Legal Holidays.
In any case where any Interest Payment Date, any Fundamental Change Repurchase Date, any Redemption 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.


 






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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 Bid Solicitation Agent, any Custodian, any authenticating agent, any Note
Registrar and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.


 


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


 


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


 


Any corporation or other entity
into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity
resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other
entity succeeding to 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.


 






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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
Signatory


 


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


 


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


 


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.


 






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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,
epidemics, pandemics, 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.
The Company shall be responsible for making all calculations called for under the Indenture and the Notes. These calculations
include, but are not limited to, determinations of the Redemption Price, price of the Common Stock, Last Reported Sale Prices of the
Common Stock, the Trading Price of the Notes for purposes of determining whether the Notes are convertible as described in this
Indenture, the Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, the amount of Conversion Consideration
deliverable in respect of any conversions, original issue discount, accrued interest payable on the Notes, accreted principal on the
Notes, any Additional Interest payable on the Notes and the Conversion Rate and Conversion Price of the Notes and any adjustments to
the Conversion Rate and the Conversion Price. The Company shall make all of these calculations in good faith and, absent manifest
error, the Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its
calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely
conclusively upon the accuracy of the Company’s calculations without independent verification. The Company will forward its
calculations to any Holder of Notes upon the written request of that Holder.


 


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


 


[Remainder of page intentionally
left blank]


 




    100 


     


    

 


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


 





	 	VERTEX ENERGY, INC.
	 	 	 
	 	By:	/s/ Chris Carlson
	 	 	Name:  Chris Carlson
	 	 	Title:    Chief Financial Officer 
	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as
	 	Trustee	 
	 	 	 
	 	By:	/s/ Alejandro Hoyos
	 	 	Name:  Alejandro Hoyos
	 	 	Title:    Vice President 



  




    1 


     


    

 


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) 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, OR (B) AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT (AN “ACCREDITED INVESTOR”), HAS SUFFICIENT KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS TO BE CAPABLE OF EVALUATING THE MERITS AND RISKS OF THE PURCHASE OF THIS SECURITY AND IS
ABLE AND PREPARED TO BEAR THE ECONOMIC RISK OF INVESTING IN AND HOLDING THIS SECURITY, AND


 


(2)         
AGREES FOR THE BENEFIT OF VERTEX ENERGY, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN, 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


 






    1 


     


    

 


(C)         TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR TO AN ACCREDITED INVESTOR THAT IS PURCHASING
THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR
FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, 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 FOR THE COMPANY 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 VERTEX ENERGY, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF VERTEX ENERGY, INC. DURING THE PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST
HEREIN.]


 




    2 


     


    

 


Vertex Energy, Inc.


 


6.25% Convertible Senior
Notes due 2027


 


	No. [_______]	[Initially]2
  $[_______] at maturity




 


CUSIP No. 92534K AA5



 


Vertex Energy, Inc., a corporation
duly organized and validly existing under the laws of the State of Nevada (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.]1 [_______]2,
or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto]3
[of $[_______]]4, which amount,
taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $155,000,000,
in accordance with the rules and applicable procedures of the Depositary, on October 1, 2027, and interest thereon as set forth below.


 


The Accreted Principal Amount
per $1,000 principal amount at maturity of the Notes will be determined by the Company in accordance with Exhibit B to the Indenture.


 


This Note shall bear interest
at the rate of 6.25% per year on the aggregate principal amount at maturity from November 1, 2021, or from the most recent date to which
interest has been paid or provided for to, but excluding, the next scheduled Interest Payment Date until October 1, 2027. Interest is
payable semi-annually in arrears on each April 1 and October 1, commencing on April 1, 2022, to Holders of record at the close of business
on the preceding March 15 and September 15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable
as set forth in Section 4.06(d) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of,
any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable
pursuant to any of such Section 4.06(d) or Section 6.03, and any express mention of the payment of Additional Interest in any provision
therein shall not be construed as excluding Additional Interest in those provisions thereof where such express mention is not made.


 


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


 





 






2
Include if a global note. 


3
Include if a global note. 


4
Include if a physical note. 


5
Include if a global note. 


6
Include if a physical note.



 






    1 


     


    

 


The Company shall pay the
Accreted Principal Amount of and interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to
the Depositary or its nominee, as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions
of the Indenture, the Company shall pay the Accreted Principal Amount 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, as a place where Notes may be presented for payment or for registration of
transfer and exchange.


 


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


 


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


 


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


 


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


 


[Remainder of page intentionally
left blank]


 




    2 


     


    

 


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


 





	 	VERTEX 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


 




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[FORM OF REVERSE OF NOTE]


 


Vertex Energy, Inc.

6.25% Convertible Senior Notes due 2027


 


This Note is one of a duly
authorized issue of Notes of the Company, designated as its 6.25% Convertible Senior Notes due 2027 (the “Notes”),
limited to the aggregate principal amount at maturity of $155,000,000, all issued under and pursuant to an Indenture dated as of November
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 Accreted Principal Amount of, and interest on, all Notes may be declared, by either
the Trustee or Holders of at least 25% in aggregate principal amount at maturity 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.


 


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 at maturity 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 at maturity of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any
past Default or Event of Default under the Indenture and its consequences.


 


Each Holder shall have the
right to receive payment or delivery as described in the Indenture.


 


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


 






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The Notes shall be redeemable
at the Company’s option on or after October 6, 2024 in accordance with the terms and subject to the conditions specified in the
Indenture. The Notes shall be subject to Special Mandatory Redemption by the Company under the circumstances described in the Indenture,
in accordance with the terms and subject to the conditions specified in the Indenture. No sinking fund is provided for the Notes.


 


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


 


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


 




    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.


 




    1 


     


    

 


SCHEDULE A7


 


SCHEDULE OF EXCHANGES OF NOTES


 


Vertex Energy, Inc.

6.25% Convertible Senior Notes due 2027


 


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


 


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

	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 


	 	 	 	 	 
	
 

	
 

	
 

	
 

	
 








 


 






7
Include if a global note.


 




    1 


     


    

 


Attachment
1 


 


[FORM OF NOTICE OF CONVERSION]


 


	To:	U.S. Bank National Association, as Trustee

8 Greenway Plaza, Suite 1100 

Houston, Texas 77046 

Attention: A. Hoyos (Vertex Energy, Inc. Administrator)





 


The undersigned registered
owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount at maturity
or an integral multiple thereof) below designated, into, at the Company’s election, 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 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	 	 













 




    1 


     


    

 


Fill in for registration
of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:  





	 	 






(Name)





	 	 





(Street Address)





	 	 





(City, State and Zip Code)

Please print name and address





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

Identification Number	 


 




    2 


     


    

 


Attachment
2  


 


[FORM OF FUNDAMENTAL CHANGE
REPURCHASE NOTICE]


 


	To:	U.S. Bank National Association, as Trustee

8 Greenway Plaza, Suite 1100

Houston, Texas 77046

Attention: A. Hoyos (Vertex Energy, Inc. Administrator)




  


The undersigned registered
owner of this Note hereby acknowledges receipt of a notice from Vertex 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
Accreted Principal Amount of this Note, or the portion thereof (that is $1,000 principal amount at maturity or an integral multiple thereof)
below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and on
or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental
Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.


 


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


 





	Dated:  		 	 
	 	 	 	 
	 	 	 	Signature(s)


 






	 	 	 
	 	Social Security or Other Taxpayer

Identification Number	 
	 	 
	 	Principal amount to
be 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]


 


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, the undersigned confirms that such Note is being transferred:


 


		☐	To Vertex 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 


     


    

 


EXHIBIT B


 


The following table sets forth the Accreted Principal Amount per $1,000
principal amount of Notes, expressed as a percentage of $1,000 principal amount of Notes, as of the specified dates during the period
from the date of this Indenture through the Maturity Date. 


 


	Date	Accreted Principal Amount
	 	As Percentage of Par	Dollars
	November 1, 2021	90.00%	$   900.00
	April 1, 2022	90.67%	$   906.70
	October 1, 2022	91.48%	$   914.80
	April 1, 2023	92.30%	$   923.00
	October 1, 2023	93.12%	$   931.20
	April 1, 2024	93.96%	$   939.60
	October 1, 2024	94.80%	$   948.00
	April 1, 2025	95.65%	$   956.50
	October 1, 2025	96.50%	$   965.00
	April 1, 2026	97.36%	$   973.60
	October 1, 2026	98.24%	$   982.40
	April 1, 2027	99.11%	$   991.10
	October 1, 2027	100.00%	$1,000.00



 


The Accreted Principal Amount for Notes between
the dates listed above will include an amount reflecting the principal that has accreted as of such date since the immediately preceding
date in the table at an accretion rate of 1.80% per annum. If any date where the Accreted Principal Amount must be determined for purposes
of the Indenture is between two consecutive dates set forth above, the Accreted Principal Amount will be determined by a straight-line
interpolation between the Accreted Principal Amount set forth for such two dates, based on a 365-day year. The Company will calculate
the Accreted Principal Amount and shall deliver the Accreted Principal Amount to the Trustee upon request. 


 






    3