Exhibit 4.1


 


Execution
Version


 


 


DRAFTKINGS INC.,


 


as


 


Issuer


 


AND


 


COMPUTERSHARE TRUST COMPANY, N.A.,


 


as Trustee


 


INDENTURE


 


Dated as of March 18, 2021


 


0% Convertible Senior Notes due 2028


 


 






    


     


    

 


TABLE OF CONTENTS


 


 


	 	 	PAGE
	 	 	 
	Article 1
 DEFINITIONS
	 	 	 
	Section 1.01.	Definitions	1
	Section 1.02.	References to Interest	13
	 	 	 
	Article 2
 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
	 	 	 
	Section 2.01.	Designation and Amount	13
	Section 2.02.	Form of Notes	13
	Section 2.03.	Date and Denomination of Notes; No Regular Interest; Payments of Special Interest and Defaulted Amounts	14
	Section 2.04.	Execution, Authentication and Delivery of Notes	16
	Section 2.05.	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	16
	Section 2.06.	Mutilated, Destroyed, Lost or Stolen Notes	23
	Section 2.07.	Temporary Notes	24
	Section 2.08.	Cancellation of Notes Paid, Converted, Etc	24
	Section 2.09.	CUSIP Numbers	25
	Section 2.10.	Additional Notes; Purchases	25
	Section 2.11.	Ranking	25
	 	 	 
	Article 3
 SATISFACTION AND DISCHARGE
	 	 	 
	Section 3.01.	Satisfaction and Discharge	26
	 	 	 
	Article 4
 PARTICULAR COVENANTS OF THE COMPANY
	 	 	 
	Section 4.01.	Payment of Principal and Special Interest	27
	Section 4.02.	Maintenance of Office or Agency	27
	Section 4.03.	Appointments to Fill Vacancies in Trustee’s Office	28
	Section 4.04.	Provisions as to Paying Agent	28
	Section 4.05.	Existence	29
	Section 4.06.	Rule 144A Information Requirement; Reporting; and Special Interest	29
	Section 4.07.	Stay, Extension and Usury Laws	31
	Section 4.08.	Compliance Certificate; Statements as to Defaults	31
	Section 4.09.	Further Instruments and Acts	31




 






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TABLE
OF CONTENTS

(continued)


 


	Article 5
 LISTS OF HOLDERS
	 	 	 
	Section 5.01.	Lists of Holders.	32
	 	 	 
	Article 6
 DEFAULTS AND REMEDIES
	 	 	 
	Section 6.01.	Events of Default	32
	Section 6.02.	Acceleration	33
	Section 6.03.	Special Interest	34
	Section 6.04.	Payments of Notes on Default; Suit Therefor	35
	Section 6.05.	Application of Monies Collected by Trustee	36
	Section 6.06.	Proceedings by Holders	37
	Section 6.07.	Proceedings by Trustee	37
	Section 6.08.	Remedies Cumulative and Continuing	38
	Section 6.09.	Direction of Proceedings and Waiver of Defaults by Majority of Holders	38
	Section 6.10.	Notice of Defaults	39
	Section 6.11.	Undertaking to Pay Costs	39
	 	 	 
	Article 7
 CONCERNING THE TRUSTEE
	 	 	 
	Section 7.01.	Duties and Responsibilities of Trustee	39
	Section 7.02.	Certain Rights of the Trustee	41
	Section 7.03.	No Responsibility for Recitals, Etc	42
	Section 7.04.	Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes	43
	Section 7.05.	Monies and Shares of Class A Common Stock to Be Held in Trust	43
	Section 7.06.	Compensation and Expenses of Trustee	43
	Section 7.07.	Eligibility of Trustee	44
	Section 7.08.	Resignation or Removal of Trustee	44
	Section 7.09.	Acceptance by Successor Trustee	45
	Section 7.10.	Succession by Merger, Etc	46
	Section 7.11.	Trustee’s Application for Instructions from the Company	46
	Section 7.12.	Conflicting Interests of Trustee	47
	Section 7.13.	Limitation on Trustee’s Liability	47
	 	 	 
	Article 8
 CONCERNING THE HOLDERS
	 	 	 
	Section 8.01.	Action by Holders	47
	Section 8.02.	Proof of Execution by Holders	47
	Section 8.03.	Who Are Deemed Absolute Owners	47
	Section 8.04.	Company-Owned Notes Disregarded	48
	Section 8.05.	Revocation of Consents; Future Holders Bound	48




 






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TABLE
OF CONTENTS

(continued)


 


	Article 9
 ACTS OF HOLDERS
	 	 	 
	Section 9.01.	Acts of Holders	49
	 	 	 
	Article 10
 SUPPLEMENTAL INDENTURES
	 	 	 
	Section 10.01.	Supplemental Indentures Without Consent of Holders	50
	Section 10.02.	Supplemental Indentures with Consent of Holders	51
	Section 10.03.	Effect of Amendment, Supplement and Waiver	52
	Section 10.04.	Notation on Notes	52
	Section 10.05.	Evidence of Compliance of Amendment, Supplement or Waiver to Be Furnished Trustee	53
	 	 	 
	Article 11
 CONSOLIDATION, MERGER AND SALE
	 	 	 
	Section 11.01.	Company May Consolidate, Etc. on Certain Terms	53
	 	 	 
	Article 12
 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	 
	Section 12.01.	Indenture and Notes Solely Corporate Obligations	54
	 	 	 
	Article 13
 [RESERVED]
	 	 	 
	Article 14
 CONVERSION OF NOTES
	 	 	 
	Section 14.01.	Conversion Privilege	55
	Section 14.02.	Conversion Procedure; Settlement Upon Conversion	58
	Section 14.03.	Increase in Conversion Rate Upon Conversion in Connection with a Make-Whole Fundamental Change or Redemption Notice	65
	Section 14.04.	Adjustment of Conversion Rate	67
	Section 14.05.	Adjustments of Prices	77
	Section 14.06.	Shares to Be Fully Reserved	78
	Section 14.07.	Effect of Recapitalizations, Reclassifications and Changes of the Class A Common Stock	78
	Section 14.08.	Certain Covenants	80
	Section 14.09.	Responsibility of Trustee	81
	Section 14.10.	Notice to Holders Prior to Certain Actions	81
	Section 14.11.	Stockholder Rights Plans	82




 






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TABLE
OF CONTENTS

(continued)


 


	Article 15
 PURCHASE OF NOTES AT OPTION OF HOLDERS
	 	 	 
	Section 15.01.	Intentionally Omitted	83
	Section 15.02.	Repurchase at Option of Holders Upon a Fundamental Change	83
	Section 15.03.	Withdrawal of Fundamental Change Repurchase Notice	86
	Section 15.04.	Deposit of Fundamental Change Repurchase Price	86
	Section 15.05.	Covenant to Comply with Applicable Laws Upon Repurchase of Notes	87
	 	 	 
	Article 16
 OPTIONAL REDEMPTION
	 	 	 
	Section 16.01.	Optional Redemption	87
	Section 16.02.	Notice of Optional Redemption; Selection of Notes	87
	Section 16.03.	Payment of Notes Called for Redemption.	89
	Section 16.04.	Restrictions on Redemption	89
	 	 	 
	Article 17
 MISCELLANEOUS PROVISIONS
	 	 	 
	Section 17.01.	Provisions Binding on Company’s Successors	89
	Section 17.02.	Official Acts by Successor Entity	89
	Section 17.03.	Addresses for Notices, Etc	90
	Section 17.04.	Governing Law	91
	Section 17.05.	Intentionally Omitted	91
	Section 17.06.	Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	91
	Section 17.07.	Legal Holidays	91
	Section 17.08.	No Security Interest Created	91
	Section 17.09.	Benefits of Indenture	92
	Section 17.10.	Table of Contents, Headings, Etc	92
	Section 17.11.	Authenticating Agent	92
	Section 17.12.	Counterpart Original and Electronic Execution	93
	Section 17.13.	Severability	93
	Section 17.14.	Waiver of Jury Trial; Submission of Jurisdiction	93
	Section 17.15.	Force Majeure	94
	Section 17.16.	Calculations	94
	Section 17.17.	U.S.A. Patriot Act	94
	Section 17.18.	Tax Withholding	94




 


EXHIBIT


 


	Exhibit A	Form of Note	A-1
	Exhibit B	Form of Free Transferability Certificate	B-1



 






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INDENTURE dated as
of March 18, 2021 between DraftKings Inc., a Nevada corporation, as issuer (the “Company”, as more fully
set forth in Section 1.01), and Computershare Trust Company, N.A., as trustee (the “Trustee”, as more fully
set forth in Section 1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful
corporate purposes, the Company has duly authorized the issuance of its 0% Convertible Senior Notes due 2028 (the “Notes”),
initially in an aggregate principal amount of $1,265,000,000 (which includes $165 million aggregate principal amount of additional
Notes purchased by the Purchasers pursuant to the exercise of its option to purchase additional Notes as set forth in the Purchase
Agreement which was exercised in full), and in order to provide the terms and conditions upon which the Notes are to be authenticated,
issued and delivered, the Company has duly authorized the execution and delivery of this Indenture; and


 


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


 


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


 


NOW, THEREFORE, THIS
INDENTURE WITNESSETH:


 


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


 


Article 1


 


DEFINITIONS


 


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


 


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


 






    


     


    

 


“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control,” when used with respect to
any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.


 


“Agent”
means, any authenticating agent, the Bid Solicitation Agent, Custodian, the Conversion Agent, the Paying Agent, the Note Registrar,
transfer agent, or any other agent appointed hereunder.


 


“Applicable
Procedures” means, with respect to a Depositary, as to any matter at any time, the policies and procedures of such Depositary,
if any, that are applicable to such matter at such time.


 


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


 


“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; provided that the Company
may, in its discretion, appoint another person to replace it as Bid Solicitation Agent at any time without prior notice to the
Holders.


 


“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 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 or a day on which financial institutions in the state in which the
Corporate Trust Office is located are authorized or required by law or executive order to close or be closed.


 


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


 


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


 


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


 


“Class A
Common Stock” means the Class A Common Stock of the Company, par value $0.0001 per share, subject to Section 14.07.


 






    2


     


    

 


“Class B
Common Stock” means the Class B Common Stock of the Company, par value $0.0001 per share.


 


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


 


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


 


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


 


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


 


“Combination
Settlement” shall have the meaning provided 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.


 


“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 an Officer of the Company.


 


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


 


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


 


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


 


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


 


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


 


“Corporate
Trust Office” means the designated office of the Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 6200 S. Quebec Street, Greenwood Village, Colorado 80111, Attention: Corporate Trust;
or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the designated
corporate trust office of any successor Trustee (or such other address as such successor trustee may designate from time to time
by notice to the Holders and the Company).


 


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


 






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“Daily Conversion
Value” means, for each of the 40 consecutive VWAP Trading Days during the relevant Observation Period, 1/40th of the
product of (i) the Conversion Rate on such VWAP Trading Day and (ii) the Daily VWAP for such VWAP Trading Day.


 


“Daily Measurement
Value” shall have the meaning specified in the definition of “Daily Settlement Amount.”


 


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


 


(a)            cash
in an amount equal to the lesser of (i) the Specified Dollar Amount, if any, divided by 40 (such quotient, the “Daily
Measurement Value”) and (ii) the Daily Conversion Value for such VWAP Trading Day; and


 


(b)            if
the Daily Conversion Value for such VWAP Trading Day exceeds the Daily Measurement Value, a number of shares of Class A 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 VWAP Trading Day.


 


“Daily VWAP”
means, for each of the 40 consecutive VWAP Trading Days during the relevant Observation Period, the per share volume-weighted average
price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DKNG <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 VWAP Trading Day (or if such volume-weighted average price
is unavailable, the market value of one share of Class A Common Stock on such VWAP Trading Day determined, using a volume-weighted
average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “Daily
VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session
trading hours.


 


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


 


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


 


“Default Settlement
Method” shall have the meaning specified in Section 14.02(a)(ii).


 


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


 


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


 






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“Effective
Date”, for purposes of Section 14.03 (and as used in Sections 14.04 and 14.05 with respect to a Make-Whole Fundamental
Change), shall have the meaning specified in Section 14.03(c), and “effective date”, for purposes of Section 14.04
and Section 14.05, means the first date on which shares of the Class A Common Stock trade on the applicable exchange
or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.


 


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


 


“Ex-Dividend
Date” means the first date on which shares of Class A 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 Class A Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by
such exchange or market.


 


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


 


“Expiration
Date” shall have the meaning specified in Section 14.04(e).


 


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


 


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


 


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


 


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


 


(a)(1)        a
 “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the
Company, its Wholly-Owned Subsidiaries, the employee benefit plans of the Company and its Wholly-Owned Subsidiaries, and the Principal
or a Related Party, has become and files a Schedule TO or any other schedule, form or report under the Exchange Act disclosing
that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under
the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of the Company’s Common
Equity;


 


(b)            the
consummation of (1) any recapitalization, reclassification or change of the Class A Common Stock (other than changes
resulting from a subdivision or combination and other than changes only in par value, or from par value to no par value or from
no par value to par value) as a result of which the Class A Common Stock would be converted into, or exchanged for, stock,
other securities, other property or assets; (2) any share exchange, consolidation or merger of the Company pursuant to which
the Class A Common Stock will be converted into cash, securities or other property or assets (or any combination thereof),
other than a merger of the Company solely for the purpose of changing the Company’s jurisdiction of incorporation that results
in a reclassification, conversion or exchange of outstanding shares of Class A Common Stock solely into shares of common stock
of the surviving entity; or (3) any sale, lease or other transfer in one transaction or a series of transactions of all or
substantially all of the Company’s and its Subsidiaries’ consolidated assets, taken as a whole, to any Person other
than one of the Company’s Wholly-Owned Subsidiaries; provided, however, that a transaction described in clause
(b)(1) or (b)(2) 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 the Common Equity of the continuing or surviving entity or transferee
or the direct or indirect parent thereof immediately after such transaction in substantially the same proportions as such ownership
immediately prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);


 






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


 


(d)            other
than in connection with transactions described in clauses (a) through (c) above, the Class A Common Stock (or other
common stock underlying the Notes) ceases to be listed or quoted on any of The Nasdaq Global Select Market, The Nasdaq Global Market
or The New York Stock Exchange (or any of their respective successors);


 


provided,
however, that a transaction or transactions described in clause (a) or clause (b) above will not constitute
a Fundamental Change if at least 90% of the consideration received or to be received by the holders of the Class A Common
Stock, 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
Global Select Market, The Nasdaq Global Market or The New York Stock Exchange (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 becomes the Reference Property for the Notes (subject to the provisions set forth in Section 14.02).


 


Any event, transaction
or series of related transactions that constitute a Fundamental Change under both clause (a) and clause (b) above will
be deemed to be a Fundamental Change solely under clause (b) above.


 


If any transaction
in which the Class A Common Stock is replaced by the securities of another entity occurs, following completion of any related
Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole
Fundamental Change but for the proviso immediately following clause (d) of this definition, following the effective date of
such transaction) references to the Company in this definition shall instead be references to such other entity.


 


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


 






    6


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


“Issue Date”
means March 18, 2021.


 


“Last Reported
Sale Price” of the Class A Common Stock on any date means:


 


(a)            the
closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one
in either case, the average of the average bid and the average ask prices) on such date as reported in composite transactions for
the Relevant Stock Exchange;


 


(b)            if
the Class A Common Stock is not listed for trading on a Relevant Stock Exchange on such date, the last quoted bid price per
share for the Class A Common Stock in the over-the-counter market on such date as reported by OTC Markets Group Inc. or a
similar organization; and


 


(c)            if
the Class A Common Stock is not so quoted, the average of the mid-point of the last bid and ask prices per share for the Class A
Common Stock on such date from each of at least three nationally recognized independent investment banking firms selected by the
Company for this purpose.


 


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


 


“Make-Whole
Fundamental Change Company Notice” shall have the meaning specified in Section 14.03(b).


 


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


 






    7


     


    

 


“Market Disruption
Event” means:


 


(a)            a
failure by the Relevant Stock Exchange 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 Class A 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 Class A Common
Stock or in any options contracts or futures contracts relating to the Class A Common Stock.


 


“Maturity
Date” means March 15, 2028.


 


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


 


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


 


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


 


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


 


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


 


“Observation
Period” with respect to any Note surrendered for conversion means:


 


(a)            subject
to clause (b) immediately below, if the relevant Conversion Date occurs prior to September 15, 2027, the 40 consecutive
VWAP Trading Day period beginning on, and including, the second VWAP Trading Day immediately succeeding such Conversion Date;


 


(b)            if
the relevant Conversion Date occurs on or after the date of the Company’s issuance of a Redemption Notice pursuant to Section 16.02
and prior to the relevant Redemption Date, the 40 consecutive VWAP Trading Day period beginning on, and including, the 41st Scheduled
Trading Day immediately preceding such Redemption Date; and


 


(c)            subject
to clause (b), if the relevant Conversion Date occurs on or after September 15, 2027, the 40 consecutive VWAP Trading Day
period beginning on, and including, the 41st Scheduled Trading Day immediately preceding the Maturity Date.


 


“Offering
Memorandum” means the preliminary offering memorandum dated March 15, 2021, as supplemented by the related
pricing term sheet dated March 15, 2021 relating to the offering and sale of the Notes.


 


“Officer”
means, with respect to the Company, any Person, the Chairman of the Board of Directors, the Chief Executive Officer, the President,
Chief Legal Officer, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of such Person.


 






    8


     


    

 


“Officers’
Certificate” means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be
the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company,
that meets the requirements of Section 17.06.


 


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


 


“Opinion of
Counsel” means an opinion from legal counsel that meets the requirements of Section 17.06. The counsel may be an
employee of or counsel to the Company or any Subsidiary of the Company.


 


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


 


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


 


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


 


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


 


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


 


(d)            Notes
surrendered for purchase (and not validly withdrawn) in accordance with Article 15 for which money sufficient to pay the Fundamental
Change Repurchase Price has been irrevocably deposited with the Paying Agent, in accordance with Section 15.04(b);


 


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


 


(f)             Notes
repurchased by the Company.


 


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


 


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


 


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


 


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


 






    9


     


    

 


“Principal”
means Jason D. Robins.


 


“Purchase
Agreement” means the Purchase Agreement relating to the Notes, dated March 15, 2021, between DraftKings Inc.
and Morgan Stanley & Co, LLC, as representative of the Initial Purchasers named therein (the “Purchasers”).


 


“Purchasers”
shall have the meaning specified in the definition of “Purchase Agreement”.


 


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


 


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


 


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


 


“Redemption Price” means,
for any Notes to be redeemed pursuant to Section 16.02, 100% of the principal amount of such Notes, plus accrued and
unpaid Special Interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Special Interest
Record Date but on or prior to the immediately succeeding Special Interest Payment Date, in which case interest accrued to the
Special Interest Payment Date will be paid to Holders of record of such Notes as of the close of business on such Special Interest
Record Date, and the Redemption Price will be equal to 100% of the principal amount of such Notes).


 


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


 


“Related Party”
means, with respect to the Principal, (a) the Principal’s spouse and immediate family members and (b) each trust,
corporation, partnership or other entity of which the Principal or the Principal’s spouse or immediate family member beneficially
holds a controlling interest.


 


“Relevant
Stock Exchange” means The Nasdaq Global Select Market or, if the Class A Common Stock is not then listed on The
Nasdaq Global Select Market, the principal other U.S. national or regional securities exchange on which the Class A Common
Stock is then listed, or, if the Class A Common Stock is not then listed on a U.S. national or regional securities exchange,
the principal other market on which the Class A Common Stock is then traded.


 


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


 






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“Responsible
Officer” means, with respect to the Trustee, any officer within the Corporate Trust Services of the Trustee (or any successor
group of the Trustee), customarily performing functions similar to those performed by persons having direct responsibility for
administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of such person’s knowledge of and familiarity with the particular subject.


 


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


 


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


 


“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on the Relevant Stock Exchange. If the Class A Common
Stock is not listed on a Relevant Stock Exchange, “Scheduled Trading Day” means a “Business Day.”


 


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


 


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


 


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


 


“Settlement
Method Election Deadline” has the meaning specified in Section 14.02(a)(ii)


 


“Significant
Subsidiary” means a Subsidiary of the Company that is a “significant subsidiary” as defined under Rule 1-02(w) of
Regulation S-X, promulgated pursuant to the Securities Act.


 


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


 


“Special Interest
Payment Date” means, if and to the extent that Special Interest is payable on the Notes, each March 15 and September 15
of each year, beginning on September 15, 2021.


 


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


 


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


 


“Specified
Dollar Amount” means, with respect to any conversion of Notes, the maximum cash amount per $1,000 principal amount of
Notes to be received upon conversion as specified by the Company (or deemed specified) in the notice specifying the Company’s
chosen Settlement Method.


 






    11


     


    

 


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


 


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


 


“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of
the total voting power of shares of Capital Stock 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)(i).


 


“Trading Day”
means a day on which:


 


(a)            trading
in the Class A Common Stock generally occurs on the Relevant Stock Exchange; and


 


(b)            a
Last Reported Sale Price for the Class A Common Stock is available on such Relevant Stock Exchange;


 


provided,
that, if the Class A Common Stock is not listed or traded on a Relevant Stock Exchange, “Trading Day” means a
 “Business Day.”


 


“Trading Price”
per $1,000 principal amount of the Notes on any date of determination means the average of the secondary market bid quotations
obtained in writing by the Bid Solicitation Agent 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
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 Class A Common Stock and the
Conversion Rate on such day. Any such determination will be conclusive absent manifest error.


 


“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.


 


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


 






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


 


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


 


“VWAP Trading
Day” means a day on which:


 


(a)            there
is no Market Disruption Event; and


 


(b)            trading
in the Class A Common Stock generally occurs on the Relevant Stock Exchange.


 


If the Class A
Common Stock is not listed or traded on a Relevant Stock Exchange “VWAP Trading Day” means a “Business Day.”


 


“Wholly-Owned
Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership
interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more
Wholly-Owned Subsidiaries of such Person.


 


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 refer solely to Special Interest if, in such context, Special Interest is, was or would be payable
pursuant to any of Section 4.06(d), Section 4.06(e) and Section 6.03.


 


Article 2


 


ISSUE,
DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES


 


Section 2.01.     Designation
and Amount.     The Notes shall be designated
as the “0% Convertible Senior Notes due 2028.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is initially limited to $1,265,000,000 subject to Section 2.10 and except for Notes authenticated
and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.05, Section 2.06,
Section 2.07, Section 10.04, Section 14.02 and Section 15.04.


 


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


 


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


 






    13


     


    

 


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


 


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


 


Section 2.03.           Date
and Denomination of Notes; No Regular Interest; Payments of Special Interest and Defaulted Amounts.


 


(a)            The
Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof.
Each Note shall be dated the date of its authentication and shall not bear regular interest and the principal amount of the Notes
will not accrete. Special Interest on the Notes, if any, shall be computed on the basis of a 360-day year composed of twelve 30-day
months and, for a partial month, 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 the Special
Interest Record Date immediately preceding the relevant Special Interest Payment Date shall be entitled to receive any Special
Interest payable on such Special Interest Payment Date. Special Interest, if any, shall be payable at the office or agency of the
Company maintained by the Company for such purposes, which shall initially be the Corporate Trust Office. The Company shall pay
any Special Interest that is payable:


 






    14


     


    

 


(i)            on
any Certificated Notes (A) to Holders holding Certificated Notes having an aggregate principal amount of $1,000,000 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
Certificated Notes having an aggregate principal amount of more than $1,000,000, either by check mailed to such Holders or, upon
application by such a Holder to the Note Registrar not later than the relevant Special Interest Record Date, by wire transfer in
immediately available funds to that Holder’s account within the United States, which application shall remain in effect until
the Holder notifies, in writing, the Note Registrar to the contrary; and


 


(ii)           on
any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.


 


(c)            Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date and shall not accrue interest
unless Special Interest is payable pursuant to this Indenture on the relevant payment date, in which case such Defaulted Amounts
shall accrue interest per annum at the then-applicable rate of Special Interest, to the extent that such Special Interest remains
payable pursuant to this Indenture and subject to the enforceability of such interest pursuant to applicable law, from, and including,
such relevant payment date, and such Defaulted Amounts together with any such Special 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 agree to an earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a
special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Company shall promptly notify the Trustee in writing of such special record date and the Trustee, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be
sent to each Holder at its address as it appears in the Note Register, 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 sent, 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).


 






    15


     


    

 


(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 and the Depositary, if, after written notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed satisfactory to 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 at
least one of its Officers.


 


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


 


Only such Notes as
shall bear thereon a certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A
hereto, executed by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by
Section 17.11), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such manually
executed 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
who shall have signed any of the Notes shall cease to be an 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 an Officer 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 (such register maintained in at the Corporate Trust 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 or procedures as it may prescribe, the Company shall provide for the registration
of Notes and 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.


 






    16


     


    

 


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, upon receipt of a Company Order, shall authenticate and deliver, the Notes
that the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.


 


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


 


No service charge shall
be imposed by the Company, the Trustee, the Note Registrar or any co-Note Registrar for any registration of transfer or exchange
of Notes, but the Company or the Trustee may require a Holder to pay a sum sufficient to cover any transfer tax or other similar
governmental charge required by law or permitted pursuant to Section 14.02(d) or Section 14.02(e).


 


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


 


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


 


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


 






    17


     


    

 


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


 


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


 


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


 


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


 


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


 






    18


     


    

 


(A)            TO
THE COMPANY OR ANY SUBSIDIARY THEREOF;


 


(B)            PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OF THE COMPANY THAT COVERS THE RESALE OF THIS SECURITY OR SUCH CLASS A COMMON STOCK;


 


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


 


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


 


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


 


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


 


On any Resale Restriction
Termination Date, the Company shall, at its option, deliver to the Trustee a certificate in the form of Exhibit B hereto executed
by an Officer of the Company, and upon the Trustee’s receipt of such certificate the restrictive legend required by this
Section 2.05(c) shall be deemed removed from any Global Notes representing such Notes without further action on the part
of Holders. If the Company delivers such a certificate to Trustee, the Company shall: (i) notify Holders of the Notes that
the restrictive legend required by this Section 2.05(c) has been removed or deemed removed; and (ii) instruct the
Depositary to change the CUSIP number for the Notes to the unrestricted CUSIP number for the Notes. It is understood that the Depositary
of any Global Note may require a mandatory exchange or other process to cause such Global Note to be identified by an unrestricted
CUSIP number in the facilities of such Depositary. Without limiting the generality of any other provision of this Indenture, the
Trustee will receive a Company Order before taking any action with respect to effecting any such mandatory exchange or other process,
if any such action by the Trustee is required, and it is understood that any such mandatory exchange or other process may be effected
within a reasonable time following receipt by the Trustee of any such Company Order.


 






    19


     


    

 


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 under the Securities Act or any similar provision then
in force under the Securities Act, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions
of this Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not
bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The
Company shall be entitled to instruct the Custodian in writing to so surrender any Global Note as to which such restrictions on
transfer shall have expired in accordance with their terms for exchange, and, upon such instruction, the Custodian shall so surrender
such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in
this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall promptly notify the Trustee
in writing upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement, if any,
with respect to the Notes or any Class A 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 transfers of portions of a Global Note in certificated form made upon request
of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice given to
the Trustee by or on behalf of the Depositary in accordance with Applicable Procedures and in compliance with this Section 2.05(c).


 


The Depositary shall
be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as the
 “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 (a) the Depositary
(i) notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes
or (ii) ceases to be a clearing agency registered under the Exchange Act and in either event the Company fails to appoint
a successor depositary within 90 days; or (b) there has occurred and is continuing an Event of Default and the Depositary
notifies the Trustee of its decision to exchange the Global Notes for Certificated Notes, the Company shall execute, and the Trustee,
upon receipt of an Officers’ Certificate, Opinion of Counsel and a Company Order for the authentication and delivery of Notes,
shall authenticate and deliver Certificated Notes to each beneficial owner of the related Global Notes (or a portion thereof) in
an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and
upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.


 






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Certificated Notes
issued in exchange for all or part of a 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,
shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Certificated Notes to the Persons
in whose names such Certificated Notes are so registered.


 


At such time as all
interests in a Global Note have been converted, canceled, purchased or transferred, such Global Note shall be, upon receipt thereof,
canceled by the Trustee in accordance with Applicable Procedures and existing instructions between the Depositary and the Custodian.
At any time prior to such cancelation, if any interest in a Global Note is exchanged for Certificated Notes, converted, canceled,
purchased or transferred to a transferee who receives Certificated Notes therefor or any Certificated Note is exchanged or transferred
for part of such Global Note, the principal amount of such Global Note shall, in accordance with the Applicable 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.


 


The Trustee shall have
no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture
or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other
documentation or evidence, and to only do so as 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 Company,
the Trustee nor any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing
any records relating to such beneficial ownership interests. Neither the Company nor the Trustee shall have any responsibility
or liability for any act or omission of the Depositary.


 


(d)            Until
the Resale Restriction Termination Date, any stock certificate representing Class A Common Stock issued upon conversion of
a Note shall bear a legend in substantially the following form (unless the Note or such Class A 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 under the Securities
Act 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 and any transfer agent for the Class A Common Stock):


 






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


 


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


 


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


 


(A)           TO
THE COMPANY OR ANY SUBSIDIARY THEREOF;


 


(B)           PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OF THE COMPANY THAT COVERS THE RESALE OF THIS SECURITY;


 


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


 


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


 


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


 






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Any such Class A
Common Stock as to which such restrictions on transfer shall have expired in accordance with their terms, may, upon surrender of
the certificates representing such shares of Class A Common Stock for exchange in accordance with the procedures of the transfer
agent for the Class A Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares
of Class A Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).


 


(e)            Any
Note that is repurchased or owned by the Company or an 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 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 no longer being a “restricted security” (as defined under
Rule 144 under the Securities Act). The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among members of, or participants in, the Depositary 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.


 


Section 2.06.           Mutilated,
Destroyed, Lost or Stolen Notes.     In
case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its written
request 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 reasonably required by them to save each of them harmless from any losses, liabilities, costs or expenses caused
by or connected with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss
or theft of such Note and of the ownership thereof.


 


The Trustee or such
authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity
as the Trustee, the Company and, if applicable, such authenticating agent may reasonably require. Upon the issuance of any substitute
Note, the Company or the Trustee may require the payment by the Holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note that has
matured or is about to mature or has been surrendered for required repurchase or is about to be converted in accordance with Article 14
shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of issuing a substitute
Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the
case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be reasonably required by them to
save each of them harmless for any losses, liabilities, costs, claims or expenses 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.


 






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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 or payment
or 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 or payment or
conversion or repurchase of negotiable instruments or other securities without their surrender.


 


Section 2.07.           Temporary
Notes. Pending the preparation of Certificated Notes, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon written request of the Company and receipt of a Company Order, authenticate and deliver
temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially
in the form of the Certificated 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 Certificated
Notes. Without unreasonable delay, the Company shall execute and deliver to the Trustee or such authenticating agent Certificated
Notes (other than any Global Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal amount of Certificated
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 Certificated 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
(but excluding Notes repurchased pursuant to cash-settled swaps or other derivatives), redemption, registration of transfer or
exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s agents, Subsidiaries
or Affiliates), to be surrendered to the Trustee for cancellation, and such Notes shall no longer be considered outstanding for
purposes of this Indenture upon their payment, repurchase, registration of transfer or exchange or conversion. All Notes delivered
to the Trustee for cancellation shall be canceled promptly by the Trustee upon written direction from us. No Notes shall be authenticated
in exchange for any Notes canceled, except as expressly permitted by any of the provisions of this Indenture. 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. If the Company or any of its Subsidiaries
shall acquire any of the Notes, such acquisition shall not operate as a purchase or satisfaction of the indebtedness represented
by such Notes unless and until the same are delivered to the Trustee for cancellation.


 


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


 


Section 2.10.           Additional
Notes; Purchases. The Company may, from time to time, without the consent of, or notice to, the Holders, issue
additional Notes under this Indenture with the same terms and with the same CUSIP number as the Notes issued on the Issue Date
(other than differences in the issue price of such additional Notes) in an unlimited aggregate principal amount; provided that
if any such additional Notes are not fungible with the Notes issued on the Issue Date for U.S. federal income tax and securities
law purposes, such additional Notes shall have a separate CUSIP number. Such Notes issued on the Issue Date and the additional
Notes shall rank equally and ratably and shall be treated as a single series for all purposes under this Indenture. Prior to the
issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate
and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to certify such matters, in addition to those
required by Section 17.06, as the Trustee shall reasonably request.


 


Section 2.11.          Ranking.
The Notes constitute a general unsecured obligation of the Company, ranking equally in right of payment with all existing and
future unsubordinated indebtedness of the Company and ranking senior in right of payment to all existing and future indebtedness
of the Company that is expressly made subordinate to the Notes by the terms of such indebtedness.


 






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Article 3


 


SATISFACTION
AND DISCHARGE


 


Section 3.01.           Satisfaction
and Discharge. This Indenture shall upon request of the Company contained in an Officers’ Certificate delivered
to the Trustee cease to be of further effect (except as set forth in the last paragraph of this Section 3.01), and the Trustee,
at written request and the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when:


 


(i)            either:


 


(A)            all
Notes theretofore authenticated and delivered (other than Notes which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.06) have been delivered to the Trustee for cancellation; or


 


(B)            the
Company has irrevocably (subject to Section 4.04(d)) deposited with the Paying Agent or delivered to Holders, as applicable,
after all of the outstanding Notes have (i) become due and payable, whether at the Maturity Date, any Redemption Date or any
Fundamental Change Repurchase Date, and/or (ii) been converted (and the amount of the related consideration has been determined),
cash or cash and/or shares of Class A Common Stock (solely to satisfy the Company’s Conversion Obligations), as applicable,
sufficient to pay all of the outstanding Notes and/or satisfy all conversions, as the case may be, and pay all other sums due and
payable under this Indenture by the Company;


 


(ii)           the
Company has paid or caused to be paid all sums payable by the it under this Indenture;


 


(iii)          the
Company have delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment
of the Notes at final Maturity Date, Redemption Date or Fundamental Change Repurchase Date, as the case may be; and


 


(iv)          the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each certifying 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 and, if cash or shares of Class A
Common Stock shall have been deposited with the Paying Agent pursuant to Section 3.01(i)(B), Section 4.04 shall survive
such satisfaction and discharge.


 






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Article 4


 


PARTICULAR
COVENANTS OF THE COMPANY


 


Section 4.01.           Payment
of Principal and Special Interest. The Company shall pay or deliver or cause to be paid or delivered, as the case
may be, the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, the Settlement
Amount owed on conversion, and any accrued and unpaid Special Interest on the Notes on the dates and in the manner provided in
the Notes. Principal, Settlement Amount and Special Interest, if any, shall be considered paid or delivered, as applicable, on
the date due if the Paying Agent, if other than the Company, holds as of 10:00 a.m., New York City time, on the due date money
deposited by the Company in immediately available funds and/or shares of Class A Common Stock, as applicable, designated
for and sufficient to pay and/or deliver all principal, Settlement Amount and Special Interest then due. Unless such Paying Agent
is the Trustee, the Company will promptly notify the Trustee in writing of any failure to take such action.


 


The Company shall not
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if applicable), Special Interest, if any, and Settlement Amount owed
on conversion to the extent it includes cash, unless Special Interest is then payable on the Notes on the relevant payment date,
in which case the Company shall pay interest at the rate of Special Interest at such time, from and including the relevant payment
date, to the extent such Special Interest remains payable pursuant to this Indenture, subject to the enforceability of such interest
pursuant to applicable law, to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same rate to the
extent lawful.


 


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


 


The Company may also
from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. Further, if at any time there shall be no such office or agency
in the City of New York where the Notes may be presented or surrendered for any or all such purposes, the Company shall forthwith
designate and maintain such an office or agency in the City of New York, in order that there shall at all times be such an office
or agency in the City of New York. The Company shall 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.


 






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The Company hereby
appoints the Trustee as Paying Agent, Note Registrar, Custodian and Conversion Agent and designates the Corporate Trust Office
of the Trustee as one such office or agency of 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 and the Fundamental
Change Repurchase Price, if applicable) of, the Settlement Amount owed on conversion to the extent it includes cash, and any accrued
and unpaid Special Interest on, the Notes in trust for the benefit of the Holders of the Notes;


 


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


 


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


 


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


 






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(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 any applicable escheat laws, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of,
the Settlement Amount owed on conversion to the extent it includes cash, and any accrued and unpaid Special Interest on, any Note
and remaining unclaimed for two years after such principal (including the Fundamental Change Repurchase Price, if applicable),
the Settlement Amount owed on conversion to the extent it includes cash, or any Special Interest has become due and payable shall
be paid to the Company on request of the Company contained in an Officers’ Certificate, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and
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; Reporting; and Special Interest.


 


(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 Class A Common Stock issued upon conversion of the Notes shall, at such time, constitute “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act, upon written request, provide to any
Holder, beneficial owner or prospective purchaser of such Notes or any shares of Class A Common Stock issued upon conversion
of the 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 such Class A Common Stock, as the case may be, pursuant to Rule 144A under the Securities
Act. The Company shall take such further action as any Holder or beneficial owner of such Notes or such Class A Common Stock,
as the case may be, may reasonably request to the extent from time to time required to enable such Holder or beneficial owner to
sell the Notes or the Class A Common Stock, as the case may be, in accordance with Rule 144A under the Securities Act,
as such rule may be amended from time to time.


 


(b)            The
Company shall file with the Trustee within 15 days after the same are required to be filed with the Commission (after giving effect
to any grace period provided by Rule 12b-25 under the Exchange Act or any successor rule under the Exchange Act), copies
of any documents or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act (excluding any such documents or reports, or portions thereof, subject to confidential treatment and any correspondence
with the Commission). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system
(or any successor thereto) shall be deemed to be filed with the Trustee for purposes of this Section 4.06(b) as of the
time such documents are filed via the EDGAR system (or such successor); provided, however, that the Trustee shall have no
obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR
system.


 






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(c)            Delivery
of the reports and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt of such reports,
information and documents 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 Officers’ Certificate). The Trustee shall not be obligated to monitor or confirm, on a continuing
basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with
the Commission or any website under this Indenture or participate in any conference calls.


 


(d)            Subject
to Section 6.03(b), if, at any time during the six-month period beginning on, and including, the date that is six months after
the later of (x) the Issue Date and (y) the last date upon which additional Notes are issued following exercise of the
option granted to the Purchasers of the Notes in the Purchase Agreement, the Company fails to timely file any document or report
(other than reports on Form 8-K) that it is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act, as applicable after giving effect to all applicable grace periods thereunder, the Notes are not otherwise freely
tradable by pursuant to Rule 144 under the Securities Act by Holders other than the Company’s Affiliates or Holders
that were the Company’s Affiliates at any time during the three months immediately preceding (as a result of restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes), the Company shall pay Special Interest on the Notes.
Such Special Interest shall accrue on the Notes at the rate of (i) during the first three months of such six-month period,
0.25% per annum of the principal amount of the Notes outstanding for each day for which the Company’s failure to file such
document or report has occurred and is continuing or the Notes are not otherwise freely tradable pursuant to Rule 144 under
the Securities Act 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 and (ii) during the last three months of such six-month period, 0.50%
per annum of the principal amount of the Notes outstanding for each day for which the Company’s failure to file such document
or report has occurred and is continuing or the Notes are not otherwise freely tradable as described above 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.


 


(e)            Subject
to Section 6.03(b), if, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has
not been removed, the Notes are assigned a restricted CUSIP or the Notes are not otherwise freely tradable pursuant to Rule 144
under the Securities Act by Holders other than the Company’s Affiliates or Holders that were the Company’s Affiliates
at any time during the three months immediately preceding (without restrictions pursuant to U.S. securities laws or the terms of
this Indenture or the Notes) as of the 375th day after the later of (x) the Issue Date and (y) the last date upon which
additional Notes are issued following exercise of the option granted to the Purchasers of the Notes in the Purchase Agreement,
the Company shall pay Special Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding
until the restrictive legend on the Notes has been removed, the Notes are assigned an unrestricted CUSIP and the Notes are freely
tradable pursuant to Rule 144 under the Securities Act 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).


 






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(f)             Special
Interest will be payable in arrears on each Special Interest Payment Date as set forth in Section 2.03. Subject to Section 6.03(b),
the Special Interest that may accrue in accordance with Section 4.06(d) or Section 4.06(e) shall be in addition
to any Special Interest that may accrue, at the Company’s election pursuant to Section 6.03, as the sole remedy for
an Event of Default relating to the failure to comply with the Company’s obligations under Section 4.06(b).


 


(g)            If
Special Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e) or Section 6.03(a),
the Company shall deliver to the Trustee an Officers’ Certificate to that effect stating (i) the amount of such Special
Interest that is payable and (ii) the date on which such Special Interest is payable. Unless and until a Responsible Officer
of the Trustee receives at the Corporate Trust Office such an Officers’ Certificate, the Trustee shall be entitled to conclusively
assume without inquiry that no such Special Interest is payable.


 


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 wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.


 


Section 4.08.          Compliance
Certificate; Statements as to Defaults.


 


(a)            The
Company shall deliver to the Trustee, within 120 days after the end of each fiscal year (beginning with the year ended December 31,
2021), an Officers’ Certificate stating whether the signers thereof have knowledge of any Default or any Event of Default
under this Indenture that occurred during the previous year and is then continuing and, if so, specifying each such Default and
nature thereof and what action the Company is taking or proposes to take with respect thereto.


 


(b)            The
Company shall, so long as any of the Notes are outstanding, deliver to the Trustee an Officers’ Certificate within 30 days
after an Officer of the Company becomes aware of any event that would constitute a Default or Event of Default, the status and
what action the Company is taking or proposes to take with respect thereto.


 






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


 


Article 5


 


LISTS
OF HOLDERS


 


Section 5.01.           Lists
of Holders. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of the Holders. If the Trustee is not the Note Registrar, the Company shall furnish to the Trustee
(i) if and at all such times when Special Interest is payable on the Notes pursuant to this Indenture, at least seven Business
Days before each Special Interest Payment Date (if Special Interest is then payable as set forth hereunder), and (ii) at
such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders, including the aggregate principal amount of the Notes held by each.


 


Article 6


 


DEFAULTS
AND REMEDIES


 


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


 


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


 


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


 


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


 


(d)            failure
by the Company to provide a Fundamental Change Company Notice as required under Section 15.02(c) or a notice of a specified
corporate transaction as required under Section 14.01(b), in each case, when due;


 


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


 


(f)             failure
by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding has been received by the Company and the Trustee to comply with any of the other agreements of the Company contained
in the Notes or this Indenture; provided that a notice of Default may not be given with respect to any action taken and reported
publicly or to holders of the Notes more than one year prior to such notice of Default;


 






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(g)            default
by the Company or any Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there may
be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed having a principal amount in
excess of $100,000,000 (or its foreign currency equivalent) in the aggregate of the Company and/or any such Subsidiary, whether
such indebtedness exists on the Issue Date or shall hereafter be created (i) resulting in such indebtedness becoming or being
declared due and payable prior to its stated maturity or (ii) constituting a failure to pay the principal or interest on any
such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise;


 


(h)            the
Company or any of its Significant Subsidiaries pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary
case; (ii) consents to the entry of an order for relief against it in an involuntary case; (iii) consents to the appointment
of a custodian of it or for all or substantially all of its property; or (iv) makes a general assignment for the benefit of
creditors;


 


(i)             a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company
or any of its Significant Subsidiaries in an involuntary case; (ii) appoints a custodian of the Company or any of its Significant
Subsidiaries or for all or substantially all of the property of the Company or any of its Significant Subsidiaries; or (iii) orders
the liquidation of the Company or any of its Significant Subsidiaries, and the order or decree remains unstayed and in effect for
60 consecutive days; or


 


(j)             a
final judgment or judgments for the payment of $100,000,000 (or its foreign currency equivalent) or more (excluding any amounts
covered by insurance) in the aggregate rendered against the Company or any Subsidiary of the Company, which judgments are not paid,
discharged 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.
In case one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case
(other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company
or any of its Significant Subsidiaries), either the Trustee by notice in writing to the Company, or the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding, by notice in writing to the Company and the Trustee, may, and the
Trustee at the written request of such holders under this section shall declare 100% of the principal of, and any accrued and unpaid
Special Interest, if any, on, all the Notes to be due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable. If an Event of Default specified in Section 6.01(h) or Section 6.01(i) with
respect to the Company or any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, and any accrued
and unpaid Special Interest, if any, on, all Notes shall become and shall automatically be immediately due and payable.


 






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Section 6.03.          Special
Interest.


 


(a)            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, after the
occurrence of such an Event of Default, consist exclusively of the right to receive Special Interest on the Notes (in addition
to any Special Interest that may accrue pursuant to Section 4.06(d) or 4.06(e)) at a rate equal to:


 


(i)            0.25%
per annum of the principal amount of the Notes outstanding for each day during the period beginning on, and including, the date
on which such Event of Default first occurred and ending on the earlier of (x) the date on which such Event of Default is
cured or validly waived and (y) the 180th day immediately following, and including, the date on which such Event of Default
first occurred; and


 


(ii)           if
such Event of Default has not been cured or validly waived prior to the 181st day immediately following, and including, the date
on which such Event of Default first occurred, 0.50% per annum of the principal amount of the Notes outstanding for each day during
the period beginning on, and including, the 181st day immediately following, and including, the date on which such Event of Default
first occurred and ending on the earlier of (x) the date on which the Event of Default is cured or validly waived and (y) the
360th day immediately following, and including, the date on which such Event of Default first occurred.


 


(b)            Notwithstanding
anything in this Indenture to the contrary, in no event shall the rate of any Special Interest payable pursuant to Section 6.03(a) above,
when taken together with that of any Special Interest payable pursuant to Sections 4.06(d) and 4.06(e), exceed a total of
0.50% per annum, regardless of the number of events or circumstances giving rise to the requirement to pay such Special Interest.


 


(c)            If
the Company so elects, the Special Interest payable pursuant to Section 6.03(a) above shall be payable as set forth in
Section 2.03 and will accrue on all Notes then outstanding from, and including, the date on which the Event of Default relating
to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) first occurs to, but not
including, the 361st day thereafter (or such earlier date on which such Event of Default is cured or validly waived
by the Holders of a majority in principal amount of the Notes then outstanding). On the 361st 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 validly waived prior to such 361st day), such Special Interest will cease to accrue and the Notes will
be subject to acceleration as provided in Section 6.02. In the event the Company does not elect to pay Special Interest following
an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) in
accordance with this Section 6.03, or the Company elects to make such payment but does not pay the Special Interest when due,
the Notes shall immediately be subject to acceleration as provided in Section 6.02. In no event shall Special Interest payable
pursuant to the foregoing election accrue at a rate per annum in excess of the applicable rate specified in Section 6.03(a),
regardless of the number of events or circumstances giving rise to requirements to pay such Special Interest. For the avoidance
of doubt, the provisions of this Section 6.03 shall not affect the rights of Holders in the event of the occurrence of any
other Event of Default.


 






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(d)            In
order to elect to pay Special Interest as the sole remedy during the first 360 days after the occurrence of an Event of Default
relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b), the Company must notify
in writing all Holders of the Notes, the Trustee and the Paying Agent (if other than the Trustee) of such election on or before
the close of business on the date on which such Event of Default first occurs. Upon the Company’s failure to timely give
such notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02. The Company may elect to
pay Special Interest with respect to multiple Events of Default in a single written notification.


 


Section 6.04.          Payments
of Notes on Default; Suit Therefor. If an Event of Default described in clause (a), (b) or (c) of Section 6.01
shall have occurred and the Notes have become due and payable pursuant to Section 6.02, the Company shall, upon demand of
the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, (i) the whole amount then due and payable on
the Notes for principal (including the Redemption Price and Fundamental Change Repurchase Price, if applicable) and Special Interest,
if any, with no interest accruing on any overdue principal and Special Interest (if any), unless Special Interest is payable pursuant
to this Indenture on the required payment date, in which case such amounts will accrue interest per annum at the then-applicable
rate of Special Interest, to the extent that Special Interest remains payable pursuant to this Indenture and subject to the enforceability
of such interest pursuant to applicable law, and (ii) 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 monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes, wherever situated.


 


In the event there
shall be pending proceedings for the bankruptcy or for the reorganization of the Company under Bankruptcy Law, or any other applicable
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Company, the property of the Company, or in the event of any other judicial
proceedings relative to the Company, or to the creditors or property of the Company, the Trustee, irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and any accrued and unpaid
Special Interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other
papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceedings relative to the Company, its creditors, or its 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 agree to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for compensation owed to it, expenses, advances and disbursements, including agents and
counsel fees and expenses, and including any other amounts due to the Trustee under Section 7.06, incurred by it up to the
date of such distribution. To the extent that such payment of 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.


 






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


 


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


 


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


 


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


 


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


 


FIRST:                
     To the payment of all amounts due to the Trustee under
Section 7.06;


 






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SECOND:                To
the payment of the amounts then due and unpaid for principal of, the Redemption Price or Fundamental Change Repurchase Price (if
applicable) of, and/or satisfaction of the Conversion Obligation with respect to all Notes that have been converted, and any Special
Interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such Notes; and


 


THIRD:                   To
the Company.


 


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


 


(a)            such
Holder has previously given the Trustee written notice that an Event of Default is continuing;


 


(b)            the
Holders of at least 25% in principal amount of the then outstanding Notes have requested the Trustee in writing to pursue the remedy;


 


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


 


(d)            the
Trustee has not complied with such request within 60 days after the receipt thereof and the offer of such security or indemnity;
and


 


(e)            the
Holders of a majority in principal amount of the then outstanding Notes have not given the Trustee a direction that is inconsistent
with such request within such 60-day period.


 


A Holder may not use
this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder, it being understood
that the Trustee does not have an affirmative duty to ascertain whether or not any actions or forbearances by a Holder are unduly
prejudicial to other Holders.


 


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


 






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Section 6.07.           Proceedings
by Trustee. In case of an Event of Default, the Trustee may 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.


 


(a)            The
Holders of a majority of the aggregate principal amount of the Notes at the time outstanding 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 Notes; provided, however, that (i) such direction shall not be in conflict with
any rule of law or with this Indenture, and (ii) 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 conflicts with any rule of law
or with this Indenture, 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 any such directions are unduly prejudicial to such Holders) or that
would involve the Trustee in personal liability.


 


(b)            The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of
the Notes waive any past Default or Event of Default hereunder and rescind any acceleration with respect to the Notes and its consequences
hereunder except:


 


(i)            a
default in the payment of the principal (including any Redemption or Fundamental Change Repurchase Price, if applicable) of, or
any accrued and unpaid Special Interest, if any, on the Notes; or


 


(ii)           a
failure by the Company to deliver the consideration due upon conversion of the Notes;


 






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provided
that, in the case of the rescission of any acceleration with respect to the Notes, (1) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default (other than
the nonpayment of the principal of and Special Interest on the Notes that have become due solely by such declaration of acceleration)
have been cured or waived.


 


Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes
of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon.


 


Section 6.10.          Notice
of Defaults. If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee,
the Trustee shall send to all Holders as the names and addresses of such Holders appear upon the Note Register notice of such
Default within 90 days after it occurs. The Trustee shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default, unless a Responsible Officer of the Trustee shall have received written notice from the Company or a Holder
describing such Default or Event of Default, and stating that such notice is a notice of Default. Except in the case of a Default
in the payment of principal of (including the Redemption Price and Fundamental Change Repurchase Price, if applicable) or any
accrued and unpaid Special Interest, if any, on any Note 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 the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders.


 


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


 


Article 7


 


CONCERNING
THE TRUSTEE


 


Section 7.01.          Duties
and Responsibilities of Trustee.


 


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


 






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


 


(ii)           in
the absence of bad faith 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 stated therein).


 


(b)            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 their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.


 


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


 


(i)            this
Subsection shall not be construed to limit the effect of Subsection (a) of this Section;


 


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


 


(iii)          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; and


 


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


 






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


 


Section 7.02.          Certain
Rights of the Trustee.


 


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


 


(b)            Any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’ 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)            The
Trustee may consult with counsel, accountants or other professionals of its selection and require an Opinion of Counsel or Officers’
Certificate and any advice of such counsel, accountants or other professionals or Opinion of Counsel or Officers’ Certificate
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, Opinion of Counsel or Officers’ Certificate.


 


(d)            The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee
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, at a reasonable time on any Business Day, to examine the books,
records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability
of any kind by reason of such inquiry or investigation.


 


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


 


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


 


(g)            The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.


 


(h)            The
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of Officers authorized
at such time to take specified actions pursuant to this Indenture. The Trustee shall be entitled to conclusively rely on such certificate,
and the information contained therein.


 






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(i)             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.


 


(j)            The
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless written notice
of such Default or Event of Default shall have been given to a Responsible Officer of the Trustee by the Company or by any Holder
of the Notes at the Corporate Trust Office of the Trustee and such notice references such Notes and this Indenture and states that
such notice is a notice of Default or Event of Default.


 


(k)            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.


 


(l)             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 shall be entitled to conclusively rely on its failure to receive such notice as reason to act as if
no such event occurred, unless such Responsible Officer of the Trustee had actual knowledge of such event.


 


(m)            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 held uninvested 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.


 


(n)            The
rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to the Trustee in each of
its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.


 


(o)            Subject
to this Article 7, if an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against any losses, liabilities
claims, costs and expenses which might be incurred by it in compliance with such request or direction.


 


(p)            The
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.


 


(q)            The
rights, protections, immunities and indemnities afforded to the Trustee under this Indenture shall also be afforded to each Agent
hereunder mutatis mutandis; provided that (i) an Agent shall only be liable to extent of its gross negligence
or willful misconduct; and (ii) in and during an Event of Default, only the Trustee, and not any Agent, shall be subject to
the prudent person standard.


 






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


 


Section 7.04.          Trustee,
Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any
Paying Agent, any Conversion Agent, the Custodian, Bid Solicitation Agent 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, the Custodian, Bid Solicitation Agent or Note Registrar.


 


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


 


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


 






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


 


Section 7.07.          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 (including its affiliates) has
a combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of any supervising or examining authority, then for the purposes of this Section 7.07, 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 7.07,
it shall resign promptly in the manner and with the effect hereinafter specified in this Article 7.


 


Section 7.08.          Resignation
or Removal of Trustee. The Trustee may at any time resign by giving (30) days written notice of such resignation
to the Company and mailing notice thereof to the Holders at their addresses as they shall appear on the Note Register. 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 30 days after the mailing 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 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.


 


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


 


(i)            the
Trustee shall fail to comply with Section 7.12 within a reasonable time after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note or Notes for at least six (6) months;


 






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(ii)           the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.07 and shall fail to resign after written
request therefor by the Company or by any such Holder, or


 


(iii)          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 any such case, the Company may
remove the Trustee and 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 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 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.


 


(b)            The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding 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. If no successor trustee shall have been so appointed and have accepted appointment
within 30 days after removal of the Trustee by the Holders, the 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.


 


(c)            Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.08
shall become effective upon (i) payment of all fees and expenses owing to the Trustee and (ii) acceptance of appointment
by the successor trustee as provided in Section 7.09.


 


Section 7.09.          Acceptance
by Successor Trustee. Any successor trustee appointed as provided in Section 7.08 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 predecessor trustee shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a senior claim to which the Notes are hereby made subordinate on all money or property held or collected by such trustee
as such pursuant to this Indenture, except for funds held in trust for the benefit of Holders of particular Notes, to secure any
amounts then due it pursuant to the provisions of Section 7.06.


 






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No successor trustee
shall accept appointment as provided in this Section 7.09 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 7.07.


 


Upon acceptance of
appointment by a successor trustee as provided in this Section 7.09, each of the Company and the successor trustee, at the
written direction and at the expense of the Company shall send or cause to be sent notice of the succession of such trustee hereunder
to the Holders at their addresses as they shall appear on the Note Register. If the Company fails to mail such notice within ten
days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Company.


 


Section 7.10.           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 7.07.


 


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 of authentication shall have the full force which it is anywhere in the Notes or in this
Indenture provided that the certificate of authentication 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 7.11.           Trustee’s
Application for Instructions from the Company. Any application by the Trustee for written instructions from the
Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights
of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission
shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall not be less than three Business
Days after the date any Officer actually receives such application, unless any such Officer shall have consented in writing to
any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall
have received written instructions in accordance with this Indenture in response to such application specifying the action to be
taken or omitted.


 






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Section 7.12.          Conflicting
Interests of Trustee. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject
to the provisions of this Indenture.


 


Section 7.13.          Limitation
on Trustee’s Liability. Except as provided in this Article, in accepting the trusts hereby created, the entities
acting as Trustee are acting solely as Trustee hereunder and not in their individual capacity and, except as provided in this
Article, all Persons having any claim against the Trustee by reason of the transactions contemplated by this Indenture or any
Note shall look only to the Company for payment or satisfaction thereof.


 


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 (i) 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 (ii) by the record of the Holders voting in favor thereof
at any meeting of Holders duly called and held, or (iii) 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 and Section 7.02, proof of the execution
of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as shall then be customary and standard. The holding of Notes shall be proved by the Note Register or by a certificate
of the Note Registrar.


 


Section 8.03.          Who
Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion
Agent and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may
treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership
or other writing thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment
of or on account of the principal of and (subject to Section 2.03) any accrued and unpaid Special Interest on such Note, for
conversion of such Note and for all other purposes; 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. All such payments or deliveries so made to any Holder,
or upon its order, shall be valid, and, to the extent of the sums or shares of Class A 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 or by any
Affiliate of the Company shall be disregarded (from both the numerator and the denominator) and deemed not to be outstanding for
the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected
in relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer actually knows are so owned
shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of
this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with
respect to such Notes and that the pledgee is not the Company or any Affiliate of the Company. 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 Officers’ 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 Officers’ Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are outstanding for the purpose of any such determination.


 


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


 






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Article 9


 


ACTS
OF HOLDERS


 


Section 9.01.          Acts
of Holders.


 


(a)            Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act”
of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.


 


(b)            The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution
is by a signer acting in a capacity other than such signer’s individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer’s authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.


 


(c)            The
ownership of Notes shall be proved by the Note Register.


 


(d)            Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Note.


 


(e)            If
the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Notes
have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the outstanding Notes shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to
the provisions of this Indenture not later than six months after the record date.


 






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Article 10


 


SUPPLEMENTAL
INDENTURES


 


Section 10.01.         Supplemental
Indentures Without Consent of Holders. Notwithstanding Section 10.02, without the consent of any Holder, the
Company and the Trustee may amend or supplement this Indenture and the Notes to:


 


(a)            cure
any ambiguity, omission, defect or inconsistency in this Indenture or in the Notes in a manner that does not adversely affect any
Holder in any material respect as set forth in an Officers’ Certificate;


 


(b)            provide
for the assumption by a Successor Company of the obligations of the Company under this Indenture or the Notes in accordance with
Article 11;


 


(c)            add
guarantees with respect to the Notes;


 


(d)            secure
the Notes;


 


(e)            irrevocably
select a Settlement Method or Specified Dollar Amount, or eliminate its right to choose a particular Settlement Method, on conversion
of Notes, in each case prior to the deadline for electing a Settlement Method for such conversion or actually electing (or deemed
electing) a Settlement Method pursuant to Section 14.02(a)(iii);


 


(f)             add
to the covenants or Events of Default that the Board of Directors of the Company considers to be for the benefit of the Holders
or make changes that would provide additional rights to Holders or surrender any right or power conferred upon the Company;


 


(g)            make
any change that does not adversely affect the rights of any Holder in any material respect, as determined in good faith by the
Board of Directors of the Company and evidenced by a Board Resolution delivered to the Trustee;


 


(h)            increase
the Conversion Rate;


 


(i)             in
connection with any Share Exchange Event, provide that the Notes are convertible into Reference Property, subject to Section 14.02,
and make certain related changes to the terms of this Indenture and the Notes to the extent expressly required by this Indenture;


 


(j)             evidence
and provide for the acceptance of an appointment under this Indenture of a successor Trustee; provided that the successor Trustee
is otherwise qualified and eligible to act as such under the terms of this Indenture as set forth in an Officers’ Certificate;


 






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


 


(l)            provide
for the issuance of additional Notes in accordance with Section 2.10(a).


 


The Trustee is hereby
authorized to join with the Company in the execution of any such amendment or supplement, to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may enter into any amendment or
supplement that adversely affects the Trustee’s own rights, powers, protections, duties, indemnities or immunities under
this Indenture or otherwise.


 


Any amendment or supplement
to this 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. Except as provided above in Section 10.01 and below in this Section 10.02,
the Company and the Trustee may from time to time and at any time amend or supplement this Indenture and the Notes with the consent
(evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount of the Notes
then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in connection
with a repurchase of, or tender or exchange offer for, Notes) and any existing Default or Event of Default (other than (i) a
Default or Event of Default in the payment of the principal (including any Redemption Price or Fundamental Change Repurchase Price,
if applicable) of, or any accrued and unpaid Special Interest, if any, on the Notes, except a payment default resulting from an
acceleration that has been rescinded, and (ii) a Default or Event of Default as a result of a failure by the Company to deliver
the consideration due upon conversion of the Notes) or compliance with any provision of this Indenture or the Notes may be waived
with the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal amount
of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained
in connection with a repurchase of, or tender or exchange offer for, Notes); provided, however, that, without the
consent of each Holder of an outstanding Note affected, no such amendment, supplement or waiver shall:


 


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


 


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


 


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


 


(d)            reduce
the amount of principal payable upon acceleration of the maturity of the Notes;


 






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(e)            impair
or adversely affect the right of Holders to convert Notes or otherwise modify the provisions with respect to conversion, or to
reduce the Conversion Rate (subject to such modifications as are required under this Indenture);


 


(f)             reduce
the Redemption Price or 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;


 


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


 


(h)            change
the ranking of the Notes;


 


(i)             impair
the right of any Holder to institute suit for the enforcement of any payment of principal (including the Fundamental Change Repurchase
Price, if applicable), any accrued and unpaid Special Interest, if any, on, and consideration due upon conversion of, such Holder’s
Notes, on or after the respective due dates expressed or provided for in such Holder’s Notes or in this Indenture; or


 


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


 


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


 


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


 


Section 10.03.         Effect
of Amendment, Supplement and Waiver.     Upon
the execution of any amendment, supplement or waiver of this 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 amendment, supplement or waiver shall be and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.


 






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Section 10.04.         Notation
on Notes. Notes authenticated and delivered after the execution of any amendment, supplement or waiver to this 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 amendment, supplement or waiver. If the Company or the Trustee shall so determine,
new Notes so modified as to conform, in the opinion of the Board of Directors, to any modification of this Indenture contained
in any such amendment, supplement or waiver may, at the Company’s expense, be prepared and executed by the Company, upon
receipt of a Company Order, authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to
Section 17.11) and delivered in exchange for the Notes then outstanding, upon surrender of such Notes then outstanding. Failure
to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or
waiver.


 


Section 10.05.         Evidence
of Compliance of Amendment, Supplement or Waiver to Be Furnished Trustee. In addition to the documents required
by Section 17.06, the Trustee shall receive and shall be entitled to conclusively rely on an Officers’ Certificate and
an Opinion of Counsel as conclusive evidence that any amendment, supplement or waiver to this Indenture executed pursuant hereto
complies with the requirements of this Article 10, is permitted or authorized by this Indenture, that all related conditions
have been complied with and it is the legal, valid and binding obligation of the Company, enforceable in accordance with its terms.


 


Article 11


 


CONSOLIDATION,
MERGER AND SALE


 


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


 


(a)            The
Company shall not consolidate with or merge with or into, or otherwise combine with, another Person, or sell, lease or otherwise
transfer or dispose of all or substantially all of the Company’s and its Subsidiaries’ consolidated assets, taken as
a whole, to another Person, unless:


 


(i)            the
Company is the surviving corporation or limited liability company that is treated as a corporation for U.S. federal income tax
purposes, as applicable, or the resulting, surviving or transferee Person (if not the Company) (the “Successor Company”)
is a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia,
and such corporation (if not the Company) expressly assumes by supplemental indenture all of the Company’s obligations under
the Notes and this Indenture; and


 


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


 


For purposes of this
Section 11.01, any sale, lease or other transfer or disposition of the assets of one or more Subsidiaries of the Company to
a third party that would, if such assets were held directly by the Company instead of such Subsidiaries, have constituted the sale,
lease or other transfer or disposition of all or substantially all of the Company’s and its Subsidiaries’ consolidated
assets, taken as a whole, shall be deemed to be the sale, lease or other transfer or disposition of the assets of all or substantially
all the Company’s and its Subsidiaries’ consolidated assets, taken as a whole, to another Person.


 






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(b)            Upon
any such consolidation, merger, combination or sale, lease or other transfer or disposition and upon the assumption by the Successor
Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and any accrued and unpaid Special Interest on all of the Notes, the due and punctual delivery
and/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 may exercise every right and power of and be substituted for, the Company, with the same effect as if it
had been named herein as the party of the first part, and the Company shall be discharged from its obligations under the Notes
and this Indenture, except in the case of a lease. 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 written 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 an Officer
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, combination,
sale, transfer or disposition (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 shall be released from its liabilities as obligor and maker
of the Notes and from its obligations under this Indenture and the Notes.


 


Article 12


 


IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


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


 






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Article 13


 


[RESERVED]


 


Article 14


 


CONVERSION
OF NOTES


 


Section 14.01.         Conversion
Privilege.


 


(a)            Subject
to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s
option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof)
of such Note:


 


(i)            subject
to satisfaction of the conditions described in Section 14.01(b), at any time prior to the close of business on the Business
Day immediately preceding September 15, 2027 under the circumstances and during the periods set forth in Section 14.01(b);


 


(ii)           on
or after September 15, 2027, at any time 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 10.5430 shares
of Class A Common Stock (subject to adjustment as provided in Section 14.04 and, if applicable, Section 14.03, the
 “Conversion Rate”) per $1,000 principal amount of Notes (subject to the settlement provisions of Section 14.02,
the “Conversion Obligation”).


 


(b)            (i) Prior
to the close of business on the Business Day immediately preceding September 15, 2027, a Holder may surrender all or any portion
of its Notes (that is $1,000 principal amount or an integral multiple thereof) for conversion at any time during the five Business
Day period after any ten (10) consecutive Trading Day period (the “Measurement Period”) in which the Trading
Price per $1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with the procedures
described below in 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 Class A Common Stock and the Conversion Rate on each such Trading Day, subject to compliance
with the following procedures and conditions concerning the Bid Solicitation Agent’s obligation to make a Trading Price determination.


 


(A)           The
Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal
amount of the Notes unless the Company has requested such determination, and the Company shall have no obligation to make such
request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading
Price) unless a Holder of at least $2,000,000 in aggregate principal amount of Notes requests in writing that the Company makes
such a determination and provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes
would be less than 98% of the product of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate
on such Trading Day. At such time, the Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine,
or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount
of the Notes beginning on the Trading Day following the receipt of such evidence 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
Class A Common Stock and the Conversion Rate on such Trading Day.


 






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(B)            If
the Trading Price condition has been met, the Company shall promptly so notify the Holders, the Trustee and the Conversion Agent
(if other than the Trustee) in writing. If, at any time after the Trading Price condition 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 Class A Common
Stock and the Conversion Rate on such Trading Day, the Company shall promptly so notify the Holders, the Trustee and the Conversion
Agent (if other than the Trustee) in writing.


 


(C)            If
(x) the Company is not acting as Bid Solicitation Agent, and the Company does not, when it is required to, instruct the Bid
Solicitation Agent to obtain bids, or if the Company gives such instruction to the Bid Solicitation Agent, and the Bid Solicitation
Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and it fails to make such determination,
then, in either case, the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product
of the Last Reported Sale Price of the Class A Common Stock and the Conversion Rate on each Trading Day of such failure.


 


(ii)           If,
prior to the close of business on the Business Day immediately preceding September 15, 2027, the Company elects to:


 


(A)            issue
to all or substantially all holders of the Class A Common Stock any rights, options or warrants (other than a distribution
of rights pursuant to a stockholder rights plan prior to the separation of such rights from the Class A Common Stock) 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 Class A Common Stock, at a price per share that is less than the average of the Last Reported Sale Prices of
the Class A 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


 






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(B)            distribute
to all or substantially all holders of the Class A Common Stock the Company’s assets, securities or rights, options
or warrants to purchase securities of the Company (other than a distribution of rights pursuant to a stockholder rights plan prior
to the separation of such rights from the Class A Common Stock), which distribution has a per share value, as reasonably determined
by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Class A Common Stock on the Trading Day immediately
preceding the date of announcement of such distribution,


 


then, in either case, the Company shall
notify all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least 45 Scheduled
Trading Days prior to the Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, a Holder
may surrender all or any portion of its Notes (that is $1,000 in principal amount or an integral multiple thereof) 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.


 


No Holder may convert
any of its Notes pursuant to this Section 14.01(b)(ii) if such Holder otherwise participates in such issuance or distribution,
at the same time and upon the same terms as holders of the Class A Common Stock and solely as a result of holding Notes, without
having to convert its Notes as if such Holder held a number of shares of Class A Common Stock equal to (x) the Conversion
Rate multiplied by (y) the principal amount (expressed in thousands) of Notes held by such Holder.


 


(iii)          If,
prior to the close of business on the Business Day immediately preceding September 15, 2027:


 


(A)            a
Fundamental Change occurs;


 


(B)            a
Make-Whole Fundamental Change occurs; or


 


(C)            the
Company is a party to a Share Exchange Event,


 


then, in each case, a Holder may surrender
all or any portion of its Notes (that is $1,000 in principal amount or an integral multiple thereof) for conversion at any time
from or after the open of business on the Business Day immediately following the day the Company gives notice of such transaction
or event until the close of business on the 35th Trading Day after the actual effective date of such transaction or event or, if
such transaction or event also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding
the related Fundamental Change Repurchase Date.


 






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The Company will provide
notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing as promptly as practicable following
the date on which the Company publicly announces such transaction or event but in no event shall such notice be later than the
effective date of such transaction or event (as such term is defined in the applicable agreement or public announcement).


 


(iv)           Prior
to the close of business on the Business Day immediately preceding September 15, 2027, a Holder may surrender all or any portion
of its Notes (that is $1,000 in principal amount or an integral multiple thereof) for conversion at any time during any calendar
quarter commencing after the calendar quarter ending on June 30, 2021 (and only during such calendar quarter), if the Last
Reported Sale Price of the Class A Common Stock for at least 20 Trading Days (whether or not consecutive) during the period
of 30 consecutive Trading Days ending on the last Trading Day of the immediately preceding calendar quarter is greater than or
equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine whether the Notes are convertible
because the Last Reported Sale Price condition described in this clause (iv) has been met and provide written notice to the
Holders, the Trustee and the Conversion Agent.


 


(v)           If
the Company calls any or all of the Notes for redemption pursuant to Article 16 of this Indenture prior to the close of business
on the Business Day immediately preceding September 15, 2027, then a Holder of any Note called for Optional Redemption may
surrender all or any portion of such Notes called for Optional Redemption for conversion at any time prior to the close of business
on the second Scheduled Trading Day immediately preceding the Redemption Date. After such time, the right to convert shall expire,
unless the Company defaults in the payment of the Redemption Price, in which case such Holder of Notes may convert its Notes called
for Optional Redemption until the Redemption Price has been paid or duly provided for. If the Company elects to redeem less than
all of the outstanding Notes 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 44th 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 (and, as a result
thereof, convertible in accordance with the provisions of this Section 14.01(v)), then such Holder or owner, as applicable,
will be entitled to convert such Note or beneficial interest, as applicable, at any time before the close of business on the Scheduled
Trading Day prior to such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such
Holder or owner, as applicable, will be entitled to convert such Note or beneficial interest, as applicable, until the Redemption
Price has been paid or duly provided for, and each such conversion will be deemed to be of a Note called for Optional Redemption.


 






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Section 14.02.         Conversion
Procedure; Settlement Upon Conversion.


 


(a)            Subject
to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall,
at its election, pay or deliver, as the case may be, to the converting Holder, in full satisfaction of its Conversion Obligation,
cash (“Cash Settlement”), shares of the Class A Common Stock (“Physical Settlement”)
or a combination of cash and shares of the Class A Common Stock (“Combination Settlement”), as set forth
in this Section 14.02.


 


(i)            All
conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect
to the Notes and prior to the related Redemption Date, and all conversions for which the relevant conversion date occurs on or
after September 15, 2027 shall be settled using the same Settlement Method (including the same relative proportion of cash
and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A Common
Stock shall not be taken into account in determining such proportion) as all other conversions for which the relevant Conversion
Date occurs on or after September 15, 2027. Except for any conversions (A) for which irrevocable settlement method applies
pursuant to Section 14(a)(iii) below, (B) for which the relevant Conversion Date occurs after the Company’s
issuance of a Redemption Notice by prior to the related Redemption Date or (iii) for which the relevant conversion date occurs
on or after September 15, 2027, the Company shall use the same Settlement Method (including the same relative proportion of
cash and/or shares of the Class A Common Stock, except that cash in lieu of delivering any fractional share of Class A
Common Stock shall not be taken into account in determining such proportion) 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.


 


(ii)           If
the Company has not delivered a notice pursuant to Section 14.02(a)(iii) and the Company elects a Settlement Method,
the Company shall deliver notice to Holders through the Conversion Agent of such Settlement Method the Company has selected no
later than the close of business on the Trading Day immediately following the related Conversion Date, or in the case of any conversions
for which the relevant Conversion Date occurs on or after September 15, 2027, no later than September 15, 2027 (in
each case, the “Settlement Method Election Deadline”). If the Company has not made an irrevocable election of
a settlement method pursuant to Section 14.02(a)(iii) and the Company does not timely elect a Settlement Method, the
Company shall be deemed to have elected a Settlement Method (a “Default Settlement Method”) of Combination Settlement
in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to
$1,000. If the Company has timely elected Combination Settlement in respect of any conversion but does not timely notify converting
Holders of the Specified Dollar Amount per $1,000 principal amount of Notes, or the Company is deemed to have elected Combination
Settlement, the Specified Dollar Amount shall be deemed to be $1,000.


 


(iii)          By
written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company will have the right,
prior to September 15, 2027, at its option, to change the Default Settlement Method to any Settlement Method that the Company
is then permitted to elect or elect to irrevocably fix the Settlement Method to any Settlement Method that it is then permitted
to elect (including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of the 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 any specific amount
set forth in such election notice), in each case, that will apply for all Conversion Dates occurring subsequent to delivery of
such notice. If the Company changes the Default Settlement Method or elects to irrevocably 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 specified amount, the Company shall, after the date of such change or election, as the case may be, inform Holders
converting their Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such Specified Dollar Amount
in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election Deadline for such conversion
or conversions, or, if the Company does not timely inform the Holders, the Trustee and the Conversion Agent of the Specified Dollar
Amount, such Specified Dollar Amount shall 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 shall be deemed to be $1,000 per $1,000 principal
amount of Notes. If the Company changes the Default Settlement Method or irrevocably fixes the Settlement Method, then the Company
shall concurrently either post the Default Settlement Method or fixed Settlement Method, as applicable, on the Company’s
website or disclose the same in a press release or a current report on Form 8-K (or any successor form) that is furnished
to the Commission. Notwithstanding the foregoing, no such change in the Default Settlement Method or irrevocable election will
affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Conversion Date pursuant to this
Section 14.02. For the avoidance of doubt, such change of a Default Settlement Method or an irrevocable election, if made,
will be effective without the need to amend this Indenture or the Notes, including pursuant to Section 10.01(i). Notwithstanding
the foregoing, the Company may nonetheless choose to execute such an amendment at the Company’s option without the consent
of the Holders.


 






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


 


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


 


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


 


(C)            if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay and 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 40 consecutive
VWAP Trading Days during the related Observation Period (plus cash in lieu of any fractional share of Class A Common Stock
issuable upon conversion).


 






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If more than one Note
shall be surrendered for conversion at any 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
hereby) so surrendered for conversion.


 


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


 


(b)     (i)               To
convert a beneficial interest in a Global Note (which conversion is irrevocable), the holder of such beneficial interest must:


 


(A)            comply
with the Applicable Procedures;


 


(B)            if
required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and
Section 14.02(e); and


 


(C)            if
required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not
entitled as set forth in Section 14.02(g); and


 


(ii)            To
convert a Certificated Note, the Holder must:


 


(A)            complete,
sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile
thereof) (a “Notice of Conversion”) to the Conversion Agent and surrender such Notes, duly endorsed to the Company
or in blank (and accompanied by appropriate endorsement and transfer documents), at the Corporate Trust Office of the Conversion
Agent;


 






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(B)            if
required, furnish appropriate endorsements and transfer documents;


 


(C)            if
required, pay funds equal to all documentary, stamp or similar issue or transfer tax owed as set forth in Section 14.02(d) and
Section 14.02(e); and


 


(D)            if
required, pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not
entitled as set forth in Section 14.02(g).


 


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 or, if notice on such date is not feasible given the nature of the conversion, promptly thereafter. To
the extent the Company enters into any note hedge transaction (or any other hedging transaction) with one or more counterparties
in connection with the offering and sale of the Notes, the Trustee (and if different, the Conversion Agent) agree to notify each
such counterparty of each such conversion, in such manner and containing such information as may be directed by the Company from
time to time.


 


If a Holder has already
delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion
until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied
with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03. If a Holder
has already delivered a Fundamental Change Repurchase Notice, such Holder’s right to withdraw such notice and convert the
Notes that are subject to repurchase will terminate at the close of business on the Business Day immediately preceding the relevant
Fundamental Change Repurchase Date.


 


(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 Section 14.02(b) above.


 


Subject to the provisions
of Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the Settlement Amount
due in respect of the Conversion Obligation on:


 


(i)            the
second Business Day immediately following the relevant Conversion Date (or, if earlier, the Maturity Date), if the Company elects
Physical Settlement; or


 


(ii)           the
second Business Day immediately following the last VWAP Trading Day of the relevant Observation Period, if the Company elects Cash
Settlement or if the Company elects or is deemed to have elected Combination Settlement.


 






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If any shares of Class A
Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such
Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary, as the case may be, for the full
number of shares of Class A Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion
Obligation.


  


(d)            In
case any Certificated Note shall be surrendered for partial conversion, in $1,000 principal amount or an integral multiple thereof,
the Company shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder 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 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
issuance of any shares of Class A Common Stock upon conversion of such Note, 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 Class A 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)             Upon
the conversion of an interest in a Global Note, the Trustee, or the Custodian of the Global Note at the direction of the Trustee,
shall make a notation in the books and records of the Trustee and Depositary 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.


 


(g)            Upon
conversion of a Note, the converting Holder shall not receive any separate cash payment representing any accrued and unpaid Special
Interest, if any, except as set forth in the paragraph below. The Company’s payment or delivery, as the case may be, of the
Settlement Amount upon conversion of any Note shall be deemed to satisfy in full its obligation to pay the principal amount of
the Note and any accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date. As a result,
any accrued and unpaid Special Interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid
in full rather than canceled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Class A
Common Stock, any accrued and unpaid Special Interest, if any, shall be deemed to be paid first out of the cash paid upon such
conversion.


 


Notwithstanding the
immediately preceding paragraph, if Notes are converted after the close of business on a Special Interest Record Date for the payment
of Special Interest, but prior to the open of business on the immediately following Special Interest Payment Date, Holders of such
Notes at the close of business on such Special Interest Record Date shall receive the full amount of Special Interest payable on
such Notes on the corresponding Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion
during the period from the close of business on any Special Interest Record Date to the open of business on the immediately following
Special Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted on
the corresponding Special Interest Payment Date (regardless of whether the converting Holder was the Holder of record on the corresponding
Special Interest Record Date); provided that no such payment need be made:


 






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(i)            if
the Notes are surrendered for conversion following the Special Interest Record Date immediately preceding the Maturity Date;


 


(ii)           if
the Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the Business Day immediately
following the corresponding Special Interest Payment Date;


 


(iii)          if
the Company has specified a Fundamental Change Repurchase Date that is after a Special Interest Record Date and on or prior to
the Business Day immediately following the corresponding Special Interest Payment Date; or


 


(iv)          to
the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.


 


Therefore, for the
avoidance of doubt, all Holders of record on the Special Interest Record Date immediately preceding the Maturity Date (if and to
the extent Special Interest is payable on the Maturity Date), the Redemption Date (if and to the extent Special Interest is payable
on the Redemption Date) or any Fundamental Change Repurchase Date (if and to the extent Special Interest is payable on the Fundamental
Change Repurchase Date) shall receive and retain the full Special Interest payment due, if any, on the Maturity Date or the applicable
Special Interest Payment Date in cash regardless of whether their Notes have been converted following such Special Interest Record
Date, and the converting Holder will not be required to make any corresponding Special Interest payment.


 


(h)            The
Person in whose name any shares of Class A Common Stock delivered upon conversion are registered shall become the holder of
record of such shares as of the close of business on (i) the relevant Conversion Date if the Company elects Physical Settlement
or (ii) the last VWAP Trading Day of the relevant Observation Period if the Company elects or is deemed to have elected Combination
Settlement. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion; provided
that (a) the converting Holder shall have the right to receive the Settlement Amount due upon conversion and (b) in
the case of a conversion between a Special Interest Record Date and the corresponding Special Interest Payment Date, the Holder
of record as of the close of business on such Special Interest Record Date shall have the right to receive the Special Interest
payable on such Special Interest Payment Date, in accordance with Section 14.02(g).


 


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


 






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Section 14.03.        Increase
in Conversion Rate Upon Conversion in Connection with a Make-Whole Fundamental Change or Redemption Notice.


 


(a)            If
(i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (ii) the Company gives
a Redemption Notice in accordance with Section 16.02, a Holder elects to convert its Notes in connection with such Make-Whole
Fundamental Change or Redemption Notice (provided that the sending of a Redemption Notice will increase the Conversion Rate
as set forth herein only with respect to the Notes called (or deemed called) for Optional Redemption pursuant to such Redemption
Notice and not with respect to any other Notes), under the circumstances described below, increase the Conversion Rate for the
Notes so surrendered for conversion by a number of additional shares of Class A Common Stock (the “Additional Shares”),
as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole
Fundamental Change if the relevant Notice of Conversion (or, in the case of a Global Note, the relevant notice of conversion in
accordance with the Applicable Procedures) is received by the Conversion Agent during the period from the open of business on the
Effective Date of the Make-Whole Fundamental Change to the close of business on the second Business Day immediately preceding the
related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental
Change but for the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the
Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change Period”).
A conversion of Notes shall be deemed for these purposes to be “in connection with” a Redemption Notice if the relevant
Notice of Conversion (or, in the case of a Global Note, the relevant notice of conversion in accordance with the Applicable Procedures)
is received by the Conversion Agent from, and including, the date of the Redemption Notice until the close of business on the second
Scheduled Trading Day immediately preceding the Redemption Date.


 


(b)            Upon
surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to ‎Section 14.01(b)(iii) or
Redemption Notice pursuant to ‎Section 14.01(b)(v), the Company shall, at its option, satisfy its Conversion Obligation
by Physical Settlement, Cash Settlement or Combination Settlement in accordance with Section 14.02; provided, however,
that, if the consideration for the Class A Common Stock in any Make-Whole Fundamental Change described in clause (b) of
the definition of 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 (i) the Conversion Rate
(including any increase to reflect the Additional Shares as described in this Section 14.03), multiplied by (ii) 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 Holders, the Trustee and the Conversion Agent (if other than the Trustee)
in writing of the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such Effective Date
no later than five Business Days after such Effective Date (the “Make-Whole Fundamental Change Company Notice”).


 






    65


     


    

 


(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 or the date of the Redemption Notice,
as the case may be, (in each case, the “Effective Date”) and the price (the “Stock Price”)
paid (or deemed to be paid) per share of the Class A Common Stock in the Make-Whole Fundamental Change or with respect to
the Optional Redemption, as the case may be. If the holders of the Class A Common Stock receive in exchange for their Class A
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 Class A Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately
preceding the Effective Date of the Make-Whole Fundamental Change or the Redemption Notice, as the case may be. The Board of Directors
shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective
Date or Expiration Date of the event occurs, during such five Trading Day period.


 


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


 


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


 


	 	 	Stock
    Price	 
	Effective
    Date	 	$67.75	 	 	$70.00	 	 	$80.00	 	 	$94.85	 	 	$110.00	 	 	$123.30	 	 	$150.00	 	 	$200.00	 	 	$275.00	 	 	$375.00	 	 	$500.00	 	 	$675.000	 
	March 18,
    2021	 	 	4.2171	 	 	 	3.9986	 	 	 	3.1974	 	 	 	2.3677	 	 	 	1.7953	 	 	 	1.4349	 	 	 	0.9521	 	 	 	0.4850	 	 	 	0.1974	 	 	 	0.0604	 	 	 	0.0077	 	 	 	0.0000	 
	March 15,
    2022	 	 	4.2171	 	 	 	3.9986	 	 	 	3.1863	 	 	 	2.3209	 	 	 	1.7315	 	 	 	1.3650	 	 	 	0.8819	 	 	 	0.4282	 	 	 	0.1617	 	 	 	0.0430	 	 	 	0.0016	 	 	 	0.0000	 
	March 15,
    2023	 	 	4.2171	 	 	 	3.9986	 	 	 	3.1429	 	 	 	2.2425	 	 	 	1.6385	 	 	 	1.2689	 	 	 	0.7915	 	 	 	0.3601	 	 	 	0.1225	 	 	 	0.0268	 	 	 	0.0000	 	 	 	0.0000	 
	March 15,
    2024	 	 	4.2171	 	 	 	3.9986	 	 	 	3.0781	 	 	 	2.1372	 	 	 	1.5188	 	 	 	1.1479	 	 	 	0.6823	 	 	 	0.2833	 	 	 	0.0822	 	 	 	0.0123	 	 	 	0.0000	 	 	 	0.0000	 
	March 15,
    2025	 	 	4.2171	 	 	 	3.9986	 	 	 	2.9864	 	 	 	1.9950	 	 	 	1.3618	 	 	 	0.9932	 	 	 	0.5495	 	 	 	0.1986	 	 	 	0.0443	 	 	 	0.0025	 	 	 	0.0000	 	 	 	0.0000	 
	March 15,
    2026	 	 	4.2171	 	 	 	3.9350	 	 	 	2.8240	 	 	 	1.7692	 	 	 	1.1272	 	 	 	0.7730	 	 	 	0.3779	 	 	 	0.1073	 	 	 	0.0138	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 




 






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


 


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


 


(ii)           if
the Stock Price is greater than $675.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table above), no Additional Shares shall be added to the Conversion Rate; and


 


(iii)          if
the Stock Price is less than $67.75 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table 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 14.7601 shares of Class A Common
Stock, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.


 


(f)            Nothing
in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole
Fundamental Change or a Redemption Notice, as the case may be.


 


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 a share split or share combination), at the same time and upon the same terms as holders of the Class A
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 Class A Common Stock equal to (i) the Conversion
Rate, multiplied by (ii) the principal amount (expressed in thousands) of Notes held by such Holder.


 


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


 


 


 


where,


 


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



 






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	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 Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date, as applicable, before giving effect to such dividend, distribution, share split or share combination; and
	 	 	 	 	 
	OS1	 	=	 	the number of shares of Class A Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.




 


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


 


(b)            If
the Company issues to all or substantially all holders of the Class A Common Stock (other than a distribution of rights pursuant
to a stockholder rights plan) any rights, options or warrants entitling them, for a period of not more than 60 calendar days after
the announcement date of such issuance, to subscribe for or purchase shares of Class A Common Stock at a price per share that
is less than the average of the Last Reported Sale Prices of the Class A Common Stock for the 10 consecutive Trading Day period
ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate
shall be increased based on the following formula:


 


 


 


where,


 


	CR0	 	=	 	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
	 	 	 	 	 
	CR1	 	=	 	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 	 	 	 	 
	OS0	 	=	 	the number of shares of Class A Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
	 	 	 	 	 
	X	 	=	 	the total number of shares of Class A Common Stock issuable pursuant to such rights, options or warrants; and
	 	 	 	 	 
	Y	 	=	 	the number of shares of Class A Common Stock equal to (i) the aggregate price payable
to exercise such rights, options or warrants, divided by (ii) the average of the Last Reported Sale Prices of the Class A
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.






 






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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 such rights, options or warrants are not exercised
prior to their expiration or shares of Class A Common Stock are not delivered after the exercise 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 Class A
Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased
to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.


 


For purposes of this Section 14.04(b) and
Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders of Class A Common
Stock to subscribe for or purchase shares of the Class A Common Stock at less than such average of the Last Reported Sale
Prices of the Class A Common Stock over 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 Class A
Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants
and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined
by the Board of Directors.


 


(c)            If
the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or
rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Class A
Common Stock, excluding:


 


(i)            dividends,
distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a), Section 14.04(b) or
Section 14.04(e);


 


(ii)           dividends
or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 14.04(d);


 


(iii)          conversions
of the Class A Common Stock into, or exchange of the Class A Common Stock for, in each case, Reference Property as described
below under Section 14.07; and


 






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(iv)          Spin-Offs
as to which the provisions set forth below in this Section 14.04(c) shall apply


 


(any of such shares of Capital Stock, evidences of
indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed
Property”), then the Conversion Rate shall be increased based on the following formula:


 


 


 


where,


 


	CR0	 	=	 	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
	 	 	 	 	 
	CR1	 	=	 	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 	 	 	 	 
	SP0	 	=	 	the average of the Last Reported Sale Prices of the Class A Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
	 	 	 	 	 
	FMV	 	=	 	the fair market value (as determined by the Board of Directors) of the Distributed Property so distributed with respect to each outstanding share of the Class A Common Stock on the Ex-Dividend Date for such distribution.






 


Any adjustment 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
be 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 Class A Common Stock receive the Distributed Property, the amount
and kind of Distributed Property that such Holder would have received if such Holder owned a number of shares of Class A 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
Class A Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary
or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities
exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula:


 






    70


     


    

 


 


 


where,


 


	CR0	 	=	 	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such Spin-Off;
	 	 	 	 	 
	CR1	 	=	 	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such Spin-Off;
	 	 	 	 	 
	FMV0	 	=	 	the average of the Last Reported Sale Prices of the
    Capital Stock or similar equity interest distributed to holders of the Class A Common Stock applicable to one share of
    the Class A 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 Class A Common Stock were to such Capital Stock or similar equity interest) over the first
    10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”);
    and
	 	 	 	 	 
	MP0	 	=	 	the average of the Last Reported Sale Prices of the Class A Common Stock over the Valuation Period.




 


The increase to the Conversion Rate under
the preceding paragraph shall occur on the last Trading Day of the Valuation Period, but will be given effect immediately after
the open of business on the Ex-Dividend Date for such Spin-Off. 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 between the Ex-Dividend Date of such
Spin-Off and the Conversion Date in determining the Conversion Rate. 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 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. In addition, if the Ex-Dividend Date for such Spin-Off is after the 10th Trading Day
immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references to “10”
or “10th” in the preceding paragraph and this paragraph shall be deemed replaced, solely in respect of that conversion,
with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including,
the last VWAP Trading Day of such Observation Period. If such Spin-Off does not occur, the Conversion Rate shall be decreased to
be the Conversion Rate that would then be in effect if such distribution had not been declared, effective as of the date on which
the Board of Directors (or its designee) determines not to consummate such Spin-Off.


 


For purposes of this
Section 14.04(c) (and subject in all respect to Section 14.11), rights, options or warrants distributed by the Company
to all holders of the Class A Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital
Stock, including Class A Common Stock (either initially or under certain circumstances), which rights, options or warrants,
until the occurrence of a specified event or events (“Trigger Event”):


 






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(i)            are
deemed to be transferred with such shares of the Class A Common Stock;


 


(ii)           are
not exercisable; and


 


(iii)          are
also issued in respect of future issuances of the Class A 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:


 


(A)            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 Class A 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 Class A Common Stock as of the
date of such redemption or purchase, and


 


(B)            in
the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof,
the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.


 






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


 


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


 


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


 


then:


 


(A)            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


 


(B)            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 Class A
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 Class A Common Stock, the Conversion
Rate shall be increased based on the following formula:


 


 


 


where,


 


	CR0	 	=	 	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such 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;
	 	 	 	 	 
	SP0	 	=	 	the Last Reported Sale Price of the Class A 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 Class A Common Stock.






 






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Any increase made pursuant
to this Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such
dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as
of the date the Board of Directors determines not to make or pay such dividend or distribution, to the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.


 


Notwithstanding
the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in
lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time
and upon the same terms as holders of shares of the Class A Common Stock, the amount of cash that such Holder would have received
if such Holder owned a number of shares of Class A 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 makes a payment in respect of a tender or exchange offer for the Class A Common Stock,
to the extent that the cash and value of any other consideration included in the payment per share of the Class A Common Stock
exceeds the average of the Last Reported Sale Prices of the Class A 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 (such date, the “Expiration Date”), the Conversion Rate shall be increased
based on the following formula:


 


 


 


where,


 


	CR0	 	=	 	the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;
	 	 	 	 	 
	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 Expiration Date;
	 	 	 	 	 
	AC	 	=	 	the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Class A Common Stock purchased in such tender or exchange offer;
	 	 	 	 	 
	OS0	 	=	 	the number of shares of Class A Common Stock outstanding immediately prior to the Expiration Date (prior to giving effect to the purchase of all shares of Class A Common Stock accepted for purchase or exchange in such tender or exchange offer);
	 	 	 	 	 
	OS1	 	=	 	the number of shares of Class A Common Stock outstanding immediately after the Expiration Date (after giving effect to the purchase of all shares of Class A 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 Class A Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.




 






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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 between such Expiration Date and the Conversion Date in determining the Conversion
Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for
any Trading Day that falls within the relevant Observation Period for such conversion and within the 10 Trading Days immediately
following, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to “10”
or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed
between the Expiration Date of such tender or exchange offer and such Trading Day in determining the Conversion Rate as of such
Trading Day. In addition, if the Trading Day next succeeding the Expiration Date is after the 10th Trading Day immediately preceding,
and including, the end of any Observation Period in respect of a conversion of Notes, references to “10” or “10th”
in the preceding paragraph and this paragraph shall be deemed to be replaced, solely in respect of that conversion, with such lesser
number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date of such tender
or exchange offer to, and including, last VWAP Trading Day of such Observation Period.


 


In the event that the
Company or one of its Subsidiaries is obligated to purchase shares of Class A Common Stock pursuant to any such tender or
exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases,
or all such purchases are rescinded, then the Conversion Rate shall again be adjusted 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
effected.


 






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(f)             Notwithstanding
anything to the contrary in this Section 14.04 or any other provision of this Indenture or the Notes, if a Conversion Rate
adjustment becomes effective on any Ex-Dividend Date and a Holder that has converted its Notes on or after such Ex-Dividend Date
and on or prior to the related Record Date would be treated as the record holder of the shares of Class A Common Stock as
of the related Conversion Date as described under Section 14.02(h) 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 Class A Common Stock on an unadjusted basis and participate in the related dividend,
distribution or other event giving rise to such adjustment.


 


(g)            All
calculations and other determinations under this Article 14 shall be made by the Company and all adjustments to the Conversion
Rate shall be made to the nearest one-ten thousandth (1/10,000th) of a share. In no event will the Conversion Rate be adjusted
such that the Conversion Price shall be less than the par value per share of Class A Common Stock. Notwithstanding anything
in this Article 14 to the contrary, the Company shall not be required to adjust the Conversion Rate unless the adjustment
would result in a change of at least 1.0% to the Conversion Rate. However, the Company shall carry forward, and take into account
in any future adjustment, any adjustments that are less than 1.0% of the Conversion Rate and make such carried-forward adjustments,
regardless of whether the aggregate adjustment is less than 1.0%, (i) on the effective date of any Fundamental Change or the
Effective Date of a Make-Whole Fundamental Change, (ii) upon any conversion of the Notes and (iii) on each VWAP Trading
Day of any Observation Period.


 


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


 


(i)            Except
as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Class A Common Stock
or any securities convertible into or exchangeable for shares of the Class A Common Stock or the right to purchase shares
of the Class A Common Stock or such convertible or exchangeable securities. In addition, notwithstanding anything to the contrary
in this Article 14, the Conversion Rate shall not be adjusted:


 






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(i)            upon
the issuance of any shares of Class A 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
Class A Common Stock under any plan;


 


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


 


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


 


(iv)          For
share repurchases that are not tender or exchange offers referred to in Section 14.04(e), including structured or derivative
transactions or pursuant to a share repurchase program approved by the Board of Directors;


 


(v)           for
any issuance, recapitalization, repurchase change or similar event with respect to the Class B Common Stock;


 


(vi)          solely
for a change in the par value of the Class A Common Stock; or


 


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


 


(j)             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 Officers’ 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 Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and
shall be entitled to conclusively 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 send such notice of such adjustment
of the Conversion Rate to each Holder at its last address appearing on the Note Register of this Indenture. Failure to deliver
such notice shall not affect the legality or validity of any such adjustment.


 


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


 






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Section 14.05.        Adjustments
of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the
Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation
Period and the period for determining the Stock Price for purposes of a Make-Whole Fundamental Change or Optional Redemption),
the Company shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective,
or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date, effective date or expiration
date 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 Reserved. The Company shall reserve, on or prior to the date of this Indenture, and from time to time
as may be necessary, free from preemptive rights, out of its authorized but unissued shares, sufficient shares of Class A
Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming that
at the time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement
is applicable, and including the maximum number of Additional Shares that could be included in the Conversion Rate for a conversion
in connection with a Make-Whole Fundamental Change or Optional Redemption).


 


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


 


(a)            In
the case of:


 


(i)            any
recapitalization, reclassification or change of the Class A Common Stock (other than changes resulting from a subdivision
or combination and other than changes only in par value, or from par value to no par value or from no par value to par value);


 


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


 


(iii)          any
sale, lease or other transfer or disposition to a third party of all or substantially all of the Company’s and its Subsidiaries’
consolidated assets, taken as a whole; or


 


(iv)          any
statutory share exchange,


 


in
each case, as a result of which the Class A Common Stock would be converted into, or exchanged for stock, other securities,
other property or assets (including cash or any combination thereof) (any such event, a “Share Exchange Event”
and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference
Property” and the amount of Reference Property that a holder of one share of the Class A Common Stock immediately
prior to such Share Exchange Event would have been entitled to receive upon the occurrence of such Share Exchange Event, a “Unit
of Reference Property”), then the Company, or the successor or purchasing corporation, as the case may be, will execute
with the Trustee, without the consent of the Holders, a supplemental indenture providing that, at and after the effective time
of the Share Exchange Event, the right to convert each $1,000 principal amount of Notes will be changed into a right to convert
such principal amount of Notes into the kind and amount of Reference Property that a holder of a number of shares of the Class A
Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would have been entitled to receive upon
such Share Exchange Event; provided, however, that at and after the effective time of such Share Exchange Event:


 






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(A)            the
Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon
conversion of Notes in accordance with Section 14.02; and


 


(B)            (I) any
amount payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash,
(II) any shares of Class A 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 Units of Reference Property that a holder of that number
of shares of Class A Common Stock would have received in such Share Exchange Event and (III) the Daily VWAP shall be
calculated based on the value of a Unit of Reference Property; provided, however, that if the holders of Class A Common
Stock receive only cash in such Share Exchange Event, then for all conversions that occur after the effective date of such Share
Exchange Event (x) 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 Class A Common Stock in such Share Exchange Event
and (y) the Company shall satisfy the Conversion Obligation by paying such cash to the converting Holder on the tenth Business
Day immediately following the Conversion Date.


 


If the Share Exchange
Event causes the Class A 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 the Reference Property into which the Notes
will be convertible shall be deemed to be based on: (A) the weighted average of the types and amounts of consideration received
by the holders of Class A Common Stock that affirmatively make such an election; and (B) if no holders of Class A
Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Class A
Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of
the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively
make such an election as soon as practicable after such determination is made.


 


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. If the Reference Property in respect
of any Share Exchange Event includes shares of stock, other securities or other property or assets (including any combination thereof)
of an entity other than the Company or the successor or purchasing entity, as the case may be, in such Share Exchange Event, then
such other entity, if it is a party to such Share Exchange Event, shall also execute such supplemental indenture, and such supplemental
indenture shall contain such additional provisions to protect the interests of the Holders, including the right of Holders to require
the Company to repurchase their Notes upon a Fundamental Change in accordance with Article 15, as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.


 






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(b)            In
the event the Company shall execute a supplemental indenture pursuant to Section 14.07(a), the Company shall promptly file
with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or
other assets (including any combination thereof) that will comprise the Reference Property after any such Share Exchange Event,
any adjustment to be made with respect thereto and certifying that all conditions precedent have been complied with, and shall
promptly send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to
be sent to each Holder, at its address appearing on the Note Register provided for in this Indenture, within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.


 


(c)            If
the Notes become convertible into Reference Property, the Company shall notify the Trustee in writing and issue a press release
containing the relevant information.


 


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


 


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


 


Section 14.08.        Certain
Covenants.


 


(a)            The
Company covenants that all shares of Class A Common Stock issued upon conversion of Notes shall be duly authorized, fully
paid and non-assessable and free from all preemptive or similar rights of any securityholder of the Company and, except for any
transfer taxes payable by the Company or a Holder, as the case may be, pursuant to Sections 14.02(d) and 14.02(e), free from
all transfer or similar taxes, liens, charges and adverse claims as the result of any action by the Company.


 


(b)            The
Company shall comply with all federal and state securities laws regulating the offer and delivery of shares of Class A Common
Stock upon conversion of the Notes, including that if any shares of Class A Common Stock to be provided for the purpose of
conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law
before such shares may be validly issued upon conversion, the Company shall, to the extent then permitted by the rules and
interpretations of the Commission, secure such registration or approval, as the case may be.


 






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


 


Section 14.09.        Responsibility
of Trustee and Conversion Agent. 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 Class A 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 Class A 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 Officers’
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 shall be entitled
to 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). The parties hereto agree
that all notices to the Trustee or the Conversion Agent under this Article 14 shall be in writing.


 


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;


 






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(b)            Share
Exchange Event or any consolidation, merger, sale, assignment, lease, conveyance or other transfer or disposition of all or substantially
all assets in accordance with Article 11; or


 


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


 


then,
in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall
cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be sent to each Holder at its address
appearing on the Note Register, as promptly as possible but in any event at least 20 days prior to the applicable date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or
one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Class A 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 Share Exchange Event, any consolidation, merger, sale, assignment, lease, conveyance or other transfer or disposition
of all or substantially all assets in accordance with, or any dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that holders of Class A Common Stock of record shall be entitled to exchange
their Class A Common Stock for securities or other property deliverable upon such Share Exchange Event, consolidation, merger,
sale, assignment, lease, conveyance or other transfer or disposition of all or substantially all assets in accordance with Article 11,
dissolution, liquidation or winding-up; provided, however, that if on such date, the Company does not have knowledge
of such event, the Company shall deliver such notice as promptly as practicable upon obtaining knowledge of such event and in no
event later than the effective date of such adjustment. 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, Share Exchange Event, or any consolidation, merger,
sale, assignment, lease, conveyance or other transfer or disposition of all or substantially all assets in accordance with Article 11,
dissolution, liquidation or winding-up.


 


Section 14.11.        Stockholder
Rights Plans.     If the Company has a
rights plan in effect upon conversion of the Notes into Class A Common Stock, Holders that convert their Notes shall receive,
in addition to any shares of Class A Common Stock received in connection with such conversion, the appropriate number of rights
under the rights plan, if any, and any certificate representing the shares of Class A 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 rights plan, as the same may be amended
from time to time, unless prior to any conversion, the rights have separated from the shares of Class A Common Stock in accordance
with the provisions of the applicable rights plan, in which case, and only in such case, the Conversion Rate shall be adjusted
at the time of separation as if the Company distributed to all or substantially all holders of shares of Class A Common Stock,
Distributed Property pursuant to Section 14.04(c), subject to readjustment in the event of the expiration, termination or
redemption of such rights.


 






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Article 15


 


PURCHASE
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 thereof that is
equal to $1,000 or an integral multiple of $1,000 thereof, on the date (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 nor more than 35 calendar days following the date of the Fundamental Change Company
Notice (subject to extension as required to comply with law), at a repurchase price equal to 100% of the principal amount thereof,
plus any accrued and unpaid Special Interest thereon to, but not including, the Fundamental Change Repurchase Date (the
 “Fundamental Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Special
Interest Record Date but on or prior to the Special Interest Payment Date to which such Special Interest Record Date relates, in
which case the Company shall instead pay the full amount of accrued and unpaid Special Interest to Holders of record as of such
Special Interest Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes
to be purchased 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 Certificated Notes,
or in compliance with the 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 Certificated Notes, to the Paying Agent on or before the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date (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, in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 






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


 


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


 


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


 


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


 


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


 


If a Holder has already
delivered a Fundamental Change Repurchase Notice with respect to a Note, such Holder may not surrender such Note for conversion
until such Holder has validly withdrawn such Fundamental Change Repurchase Notice (or, in the case of a Global Note, has complied
with the Applicable Procedures with respect to such a withdrawal) in accordance with the terms of Section 15.03.


 


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


 


(c)            On
or before the 20th calendar day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of Notes
and the Trustee and the Paying Agent (if other than the Trustee) a written notice (the “Fundamental Change Company Notice”)
of the occurrence of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof.
Each Fundamental Change Company Notice shall specify:


 


(i)            the
events causing the Fundamental Change;


 


(ii)           the
date of the Fundamental Change;


 


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


 


(iv)          the
Fundamental Change Repurchase Price;


 


(v)           the
Fundamental Change Repurchase Date;


 


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


 






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(vii)         the
Conversion Rate and any adjustments to the Conversion Rate;


 


(viii)        that
the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if
the Holder withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture (or, in the case of
a Global Note, complies with the Applicable Procedures with respect to such a withdrawal); and


 


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


 


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. In such
a case, the Company shall deliver such notice to the Trustee at least three Business Days prior to the date that the notice is
required to be given to the Holders (unless a shorter notice period shall be agreed to by the Trustee), together with Officers’
Certificate requesting that the Trustee give such notice.


 


Such notice shall be
delivered to the Trustee, to the Paying Agent (if other than the Trustee) and to each Holder at its address shown in the Note Register
(and to the beneficial owner as required by applicable law) or, in the case of Global Notes, in accordance with the Applicable
Procedures.


 


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.


 


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


 


(e)            Notwithstanding
the foregoing, the Company shall not be required to make an offer to repurchase Notes upon a Fundamental Change if a third party
makes such an offer in the manner and at the times required and otherwise in compliance with the requirements for an offer made
by the Company pursuant to this Article 15 and such third party purchases all Notes validly surrendered and not validly withdrawn
under its offer on the Fundamental Change Repurchase Date.


 






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


 


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


 


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


 


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


 


provided,
however, that if the Notes are Global Notes, the withdrawal notice must comply with the Applicable Procedures.


 


Section 15.04.        Deposit
of Fundamental Change Repurchase Price.


 


(a)            The
Company shall irrevocably 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 10:00 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 purchased
at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds 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 with respect to such Note (provided the Holder has satisfied the conditions in Section 15.02)
and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the
Company) by the Holder thereof in the manner required by Section 15.02, by mailing checks for the amount payable to the Holders
of such Notes entitled thereto as they shall appear in the Note Register; provided, however, that payments to the
Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Trustee
shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental
Change Repurchase Price.


 


(b)            If
by 10:00 a.m. New York City time, on the Fundamental Change Repurchase Date, money sufficient to make payment on all the Notes
or portions thereof that are to be purchased on such Fundamental Change Repurchase Date has been irrevocably deposited with the
Trustee (or other Paying Agent appointed by the Company), then, with respect to Notes that have been properly surrendered for repurchase
and not validly withdrawn:


 






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(i)            such
Notes shall cease to be outstanding and any Special Interest shall cease to accrue on such Notes (whether or not book-entry transfer
of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) on such Fundamental Change Repurchase
Date; and


 


(ii)           all
other rights of the Holders of such Notes will terminate other than the right to receive the Fundamental Change Repurchase Price.


 


(c)            Upon
surrender of a Note that is to be purchased 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 unpurchased portion
of the Note surrendered, without payment of any service charge.


 


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


 


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


 


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


 


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


 


in each case, so as to permit the rights
and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15. To
the extent that any securities laws and regulations conflict with the provisions of this Indenture with respect to the repurchase
of Notes, the Company shall not be deemed to be in breach of this Indenture as a result of compliance therewith.


 


Article 16


 


OPTIONAL
REDEMPTION


 


Section 16.01.        Optional
Redemption Section 1.02. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the
Company prior to March 15, 2025. On or after March 15, 2025, the Company may redeem (an “Optional
Redemption”) for cash all or any portion of the Notes, at the Redemption Price, if the Last Reported Sale Price of
the Class A Common Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days
(whether or not consecutive) during any 30 consecutive Trading Day period (including the last Trading Day of such period)
ending on, and including, the Trading Day immediately preceding the date on which the Company provides the Redemption Notice
in accordance with ‎Section 16.02.


 


Section 16.02.        Notice
of Optional Redemption; Selection of Notes. In case the Company exercises its Optional Redemption right to redeem all or,
as the case may be, any part of the Notes pursuant to Section 16.01, it shall fix a date for redemption (each, a “Redemption
Date”) and it or, not less than 45 Scheduled Trading Days prior to the Redemption Date, the Trustee, upon request and
in the name of and at the expense of the Company, shall deliver or cause to be delivered a notice of such Optional Redemption (a
 “Redemption Notice”) not less than 45 nor more than 60 Scheduled Trading Days prior to the Redemption Date to
each Holder of Notes so to be redeemed as a whole or in part; provided, however, that, the Company shall give written notice of
any redemption to the trustee and paying agent no later than five (5) business days prior to when notice is sent to holders
of Notes or such shorter period of time as may be acceptable to the Trustee). The Redemption Date must be a Business Day, and the
Company shall not specify a Redemption Date that falls on or after the 41st Scheduled Trading Day immediately preceding the Maturity
Date.


 






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


 


(b)            Each
Redemption Notice shall specify:


 


(v)           the
Redemption Date;


 


(vi)          the
Redemption Price;


 


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


 


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


 


(ix)           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;


 


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


 


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


 


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


 


(xiii)         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.


 






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(c)            A
Redemption Notice shall be irrevocable.


 


(d)            If
fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select the Notes or portions thereof of a Global
Note or the Notes in certificated form to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot, on a pro
rata basis or by another method the Trustee considers to be fair and appropriate or in accordance with the procedures of the
Depositary. 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.


 


Section 16.03.        Payment
of Notes Called for Redemption.


 


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


 


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


 


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


 


Article 17


 


MISCELLANEOUS
PROVISIONS


 


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


 


Section 17.02.        Official
Acts by Successor Entity. Any act or proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or Officer of the Company 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 in writing (including facsimile and electronic mail in PDF format,
however such notice or demand shall not be deemed to have been sufficiently given or made, for all purposes, unless delivered in
person or mailed by first class mail (registered or certified, return receipt requested), telecopies or overnight air courier guaranteeing
next day delivery to: DraftKings Inc., 222 Berkeley Street, 5th Floor, Boston, Massachusetts 02116, Attention Chief Legal Officer,
with a copy to Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Scott D. Miller.


 


Any notice, direction,
request or demand hereunder to or upon the Trustee shall be in writing (including facsimile and electronic mail in PDF format)
and shall be deemed to have been sufficiently given or made, for all purposes, if delivered in person or mailed by first class
mail (registered or certified, return receipt requested), telecopies or overnight air courier guaranteeing next day delivery to:
Computershare Trust Company, N.A. at 6200 S. Quebec Street, Greenwood Village, Colorado 80111; Attention: Corporate Trust.


 


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


 


All notices and communications
(other than those sent to Holders of Notes) shall be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telecopied
or sent by electronic mail; the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery; and via email in PDF format, when actually received.


 


Any notice or communication
sent to a Holder shall be mailed to it by first class mail (or electronic transmission in accordance with the Applicable Procedures
in the case of Notes held in book-entry form), postage prepaid, at its address as it appears on the Note Register and shall be
sufficiently given to it if so mailed or sent within the time prescribed.


 


Failure to send 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 sent 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 practicable shall constitute a sufficient notification for every purpose hereunder.


 


In addition to the
foregoing, the Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured
e-mail, facsimile transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or
facsimile instructions (or instructions by a similar electronic method) and the Trustee elects to act upon such instructions, the
Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses,
costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding
such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee,
including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse
by third parties and when actually received by the Trustee.


 






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Section 17.04.        Governing
Law. 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 (WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF).


 


Section 17.05.        Intentionally
Omitted.


 


Section 17.06.        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 Officers’ Certificate and Opinion of Counsel stating that in the opinion of the signors, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied.


 


Each Officers’
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 Officers’ Certificates provided for in Section 4.08)
shall include (i) a statement that the Person making such certificate or opinion has read such covenant or condition; (ii) a
brief statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate
or opinion is based; (iii) 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 covenant or condition has been satisfied;
and (iv) a statement as to whether or not, in the judgment of such Person, such covenant or condition has been satisfied.


 


Notwithstanding anything
to the contrary in this Section 17.06, 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 17.07.        Legal
Holidays. If any Special Interest Payment Date, Redemption Date, Fundamental Change Repurchase Date, Conversion
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 Special Interest,
if and to the extent any Special Interest is otherwise payable on such date, shall accrue in respect of the delay.


 






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Section 17.08.        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 17.09.        Benefits
of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Custodian, any Bid Solicitation Agent, any Conversion Agent, any authenticating agent,
any Note Registrar and their successors hereunder or the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.


 


Section 17.10.        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 17.11.        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 7.07.


 


Any corporation or
other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation
or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any
corporation or other entity succeeding to all or substantially all 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 17.11, 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 mail notice of such appointment to all Holders
as the names and addresses of such Holders appear on the Note Register.


 






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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 7.06, Section 8.03 and this Section 17.11 shall be applicable to any
authenticating agent.


 


If an authenticating
agent is appointed pursuant to this Section 17.11, the Notes may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:


 


________________________________,

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

in the within-named Indenture.


 


By: _____________________________

Authorized Officer.


 


Section 17.12.        Counterpart
Original and Electronic Execution.


 


The parties may sign
any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
The exchange of copies of this Indenture and of signature pages by facsimile or other electronic format (including, without
limitation, “pdf,” “tif” or “jpg”) 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. The words “execution,”
 “signed,” “signature,” and words of like import in this Indenture or in any other certificate, agreement
or document related to this Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic
format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures
(including, without limitation, DocuSign and AdobeSign) and such signatures shall be deemed to be original signatures for all purposes.
The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated,
sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as
a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act
or the Uniform Commercial Code.


 


Section 17.13.        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 17.14.        Waiver
of Jury Trial; Submission of Jurisdiction. EACH OF THE COMPANY AND THE TRUSTEE, AND EACH HOLDER OF THE NOTES BY
ITS ACCEPTANCE THEREOF, 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.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE NOTES, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.


 






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Section 17.15.        Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, pandemics, epidemics, recognized public emergencies, quarantine restrictions,
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 17.16.        Calculations.
Except as otherwise provided herein, the Company shall be responsible for making all calculations called for under the Notes or
this Indenture. These calculations include, but are not limited to, determinations of the Stock Price or Trading Price, the Last
Reported Sale Prices of the Class A Common Stock, the Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts,
accrued Special Interest, if any, payable on the Notes and the Conversion Rate of the Notes. The Company shall make all these calculations
in good faith and, absent manifest error, such 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 such calculations without independent verification. The Trustee will forward
the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense of
the Company. In no event shall the Trustee or the Conversion Agent be charged with knowledge of or have any duty to monitor the
Stock Price or any Measurement Period. Neither the Trustee nor the Conversion Agent shall have any responsibility for calculations
or determinations of amounts (other than as expressly provided with respect to its role as Bid Solicitation Agent), determining
whether events requiring or permitting conversion have occurred, determining whether any adjustment is required to be made with
respect to conversion rights and, if so, how much, or for the delivery of shares of Class A Common Stock.


 


Section 17.17.        U.S.A.
Patriot Act.     The parties hereto acknowledge
that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies
each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture
agree that they will provide the Trustee with such information as is required to satisfy the requirements of the U.S.A. Patriot
Act.


 






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Section 17.18.        Tax
Withholding. Except as otherwise provided in this Indenture, the Company or the Trustee, as the case may be, shall
be entitled to make a deduction or withholding from any payment which it makes under this Indenture for or on account of any present
or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations
or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by
virtue of the relevant Holder failing to satisfy any certification or other requirements in respect of the Notes, in which event
the Company or the Trustee, as the case may be, shall make such payment after such withholding or deduction has been made and shall
account to the relevant authorities for the amount so withheld or deducted and shall have no obligation to gross up any payment
hereunder or pay any additional amount as a result of such withholding tax.


 


[Remainder of page intentionally left
blank]


 






    95


     


    

 


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


 


	 	ISSUER:
	 	 
	 	DRAFTKINGS INC.
	 	 
	 	By:	/s/ Jason Park
	 	 	Name: Jason Park
	 	 	Title: Chief Financial Officer
	 	 
	 	TRUSTEE:
	 	 
	 	COMPUTERSHARE TRUST COMPANY, N.A., as Trustee
	 	 
	 	By:	/s/ Jerry Urbanek
	 	 	Name: Jerry Urbanek
	 	 	Title: Trust Officer




 


[Signature Page
to Indenture]


 






    


     


    

 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]


 


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


 


[INCLUDE FOLLOWING LEGEND IF A RESTRICTED
SECURITY:


 


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


 


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


 


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


 


(A)            TO
THE COMPANY OR ANY SUBSIDIARY THEREOF;


 






    Exhibit A-1


     


    

 


(B)            PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT OF THE COMPANY THAT COVERS THE RESALE OF THIS SECURITY OR SUCH CLASS A COMMON STOCK;


 


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


 


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


 


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


 






    Exhibit A-2


     


    

 


DRAFTKINGS INC.


 


0% Convertible Senior Note due 2028


 


	No. [ ]	[Initially]1 $[ ]




 


CUSIP No. [ ]


 


DraftKings 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.]2 [_______]3, or registered assigns, the principal amount
[as set forth in the “Schedule of Exchanges of Notes” attached hereto]4 [of $[_______]]5, which
amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture,
exceed $1,265,000,000 in aggregate at any time, in accordance with the rules and procedures of the Depositary, on March 15,
2028 and Special Interest thereon as set forth below.


 


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


 


Any Defaulted Amounts
shall forthwith cease to be payable to the Holder on the relevant payment date and shall not accrue interest unless Special Interest
is payable pursuant to the Indenture on the relevant payment date, in which case such payments shall accrue interest per annum
at the then-applicable Special Interest rate, to the extent that such Special Interest remains payable pursuant to this Indenture
and subject to the enforceability of such interest pursuant to applicable law, from, and including, the relevant payment date to,
but excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election in accordance with
Section 2.03(c) of the Indenture.


 


The Company shall pay
or cause the Paying Agent (as defined below) to pay the principal of and Special Interest, if any, on this Note, so long as such
Note is a Global Note, in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder
of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay the principal of any Notes (other
than Notes that are Global Notes) upon presentation thereof 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 Greenwood Village, Colorado as a place where Notes may be presented for payment or for registration of transfer.


 





 






1 Include if a global note.


2 Include if a global note.


3 Include if a physical note.


4 Include if a global note.


5 Include if a physical note.


 






    Exhibit A-3


     


    

 


Reference is made to
the further provisions of this Note set forth on the reverse hereof.


 


Such further provisions
shall for all purposes have the same effect as though fully set forth at this place.


 


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


 


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


 


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


 


[Remainder of page intentionally left
blank]


 






    Exhibit A-4


     


    

 


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


 


	 	DRAFTKINGS INC.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:




 


Dated:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


This is one of the Notes described in the within-named Indenture.


 


COMPUTERSHARE TRUST COMPANY, N.A., as Trustee.


 


 By:________________________________________


Authorized Signatory




 






    Exhibit A-5


     


    

 


[FORM OF REVERSE OF NOTE]


 


DRAFTKINGS INC.

0% Convertible Senior Note due 2028


 


This
Note is one of a duly authorized issue of Notes of the Company, designated as its 0% Convertible Senior Notes due 2028 (the “Notes”),
limited to the aggregate principal amount of $1,265,000,000, all issued under and pursuant to an Indenture dated as of March 18,
2021 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (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 Conversion Agent, 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. The Notes represent
that aggregate principal amount of outstanding Notes from time to time endorsed hereon and the aggregate principal amount of outstanding
Notes represented hereby may from time to time be increased or reduced to reflect purchases, cancellations, conversions or transfers
permitted by the Indenture.


 


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


 


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


 


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


 


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


 






    Exhibit A-6


     


    

 


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


 


The Notes shall be
redeemable at the Company’s option on or after March 15, 2025 in accordance with the terms and subject to the conditions
specified in the Indenture. No sinking fund is provided for the Notes. Upon the occurrence of a Fundamental Change, 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, at the Conversion Rate specified
in the Indenture, as adjusted from time to time as provided in the Indenture.


 


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


 






    Exhibit A-7


     


    

 


ABBREVIATIONS


 


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


 


TEN COM = as tenants in common


 


UNIF GIFT MIN ACT = Uniform Gifts to Minors
Act CUST = Custodian


 


TEN ENT = as tenants by the entireties


 


JT TEN = joint tenants with right of survivorship
and not as tenants in common Additional abbreviations may also be used though not in the above list.


 






    Exhibit A-8


     


    

 


SCHEDULE A6


 


SCHEDULE OF EXCHANGES OF NOTES


 


DRAFTKINGS
INC.

0% Convertible Senior Notes due 2028


 


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


 


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




 





 






6 Include if a global note.


 






    Exhibit A-9


     


    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


		To:	DraftKings Inc.

222 Berkeley Street, 5th Floor

Boston, MA 02116



 


The undersigned registered
owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount or
an integral multiple thereof) below designated, into cash, shares of Class A Common Stock or a combination of cash and shares
of Class A Common Stock, at the Company’s election, in accordance with the terms of the Indenture referred to in this
Note, and directs that any cash payable and any shares of Class A 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 Class A 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.


 


In
the case of Certificated Notes, the certificate numbers of the Notes to be converted are as set forth here:_________________________________


 


Dated:______________________________


 


	 	 
	 	 
	 	Signature(s)




 


Signature Guarantee


 


Signature(s) must be guaranteed by an eligible


Guarantor
Institution (banks, stock brokers,


savings and


loan associations and credit unions) with


membership in an approved
signature guarantee


medallion program pursuant to Securities and


Exchange Commission Rule 17Ad-15 if shares of


Class A
Common Stock are to be issued, or


Notes are to be delivered, other than


to and in the name of the registered holder.


 






    Exhibit A-10


     


    

 


	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




 






    Exhibit A-11


     


    

 


ATTACHMENT 2


  


[FORM OF FUNDAMENTAL CHANGE REPURCHASE
NOTICE]


 


		To:	DraftKings Inc.

222 Berkeley Street, 5th Floor

Boston, MA 02116



 


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


 


In the case of Certificated
Notes, the certificate numbers of the Notes to be repurchased are as set forth here:________________________________


 


Dated:_________________________


 


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


 






    Exhibit A-12


     


    

 


ATTACHMENT 3


  


[FORM OF ASSIGNMENT AND TRANSFER]


 


For
value received__________________________________________hereby sell(s), assign(s) and
transfer(s) unto______________________(Please insert social security or Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints


 


__________________________________________attorney to transfer
the said Note on the books of the Company, with full power of substitution in the premises.


 


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


 


•     To
DraftKings 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.


 


	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.  





 






    Exhibit A-13


     


    

 


EXHIBIT B


 


[FORM OF FREE TRANSFERABILITY CERTIFICATE]


 


[Date]


 


DraftKings Inc.

222 Berkeley Street, 5th Floor

Boston, MA 02116


Attention: Chief Legal Officer


 


Computershare Trust Company, N.A., as Trustee


6200 S. Quebec Street,


Greenwood Village, Colorado 80111


Attention:
Corporate Trust


 


Re:     0%
Convertible Senior Notes due 2028


 


Reference is hereby
made to the Indenture, dated as of March 18, 2021 (the “Indenture”), between DraftKings Inc. and the Trustee.
Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.


 


Whereas the 0% Convertible
Senior Notes due 2028 represented by Global Note CUSIP number 26142R AA2 and ISIN number US26142RAA23 (the “Notes”)
have become freely tradable without restrictions by non-affiliates of the Company pursuant to Rule 144(b)(1) under the
Securities Act, in accordance with Section 2.05(c) of the Indenture, pursuant to which the Notes were issued, the Company
hereby instructs you that:


 


(i)             the
restrictive legend required by Section 2.05(c) of the Indenture and set forth on the Notes shall be deemed removed from
the Notes, in accordance with the terms and conditions of the Notes and as provided in the Indenture, without further action on
the part of Holders; and


 


(ii)            the
Company shall instruct DTC to change the CUSIP number and ISIN number for the Notes to the unrestricted CUSIP number ([26142R AB0])
and unrestricted ISIN number ([US26142RAB06]), respectively, without further action on the part of Holders.


 


[Remainder of page intentionally left
blank]


 






    Exhibit B-1


     


    

 


	 	DRAFTKINGS INC.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:




 






    Exhibit B-2