EX-4.2



 Exhibit 4.2 

EXECUTION VERSION 
  

 
 TESLA, INC. 

AND 
 U.S. BANK NATIONAL
ASSOCIATION, 
 as Trustee 

Fourth Supplemental Indenture 

Dated as of March 22, 2017 

to Indenture 
 Dated as of
May 22, 2013 
 2.375% Convertible Senior Notes due 2022 
  

 
  







 TABLE OF CONTENTS 

 

							
	 	 	 	  	Page	 
	 ARTICLE 1 DEFINITIONS
	  	 	2	 
			
	 Section 1.01
	 	 Definitions
	  	 	2	 
	 Section 1.02
	 	 References to Interest
	  	 	11	 
		
	 ARTICLE 2 ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
	  	 	11	 
			
	 Section 2.01
	 	 Scope of Supplemental Indenture
	  	 	11	 
	 Section 2.02
	 	 Designation and Amount
	  	 	11	 
	 Section 2.03
	 	 Form of Notes
	  	 	11	 
	 Section 2.04
	 	 Date and Denomination of Notes; Payments of Interest and Defaulted Amounts
	  	 	12	 
	 Section 2.05
	 	 Exchange and Registration of Transfer of Notes; Depositary
	  	 	13	 
	 Section 2.06
	 	 [Reserved]
	  	 	15	 
	 Section 2.07
	 	 Cancellation of Notes Paid, Converted, Etc
	  	 	15	 
		
	 ARTICLE 3 SATISFACTION AND DISCHARGE
	  	 	16	 
			
	 Section 3.01
	 	 Applicability of Sections 8.01, 8.03 and 8.04 of the Base Indenture
	  	 	16	 
	 Section 3.02
	 	 Satisfaction and Discharge
	  	 	16	 
		
	 ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY
	  	 	16	 
			
	 Section 4.01
	 	 Payment of Principal and Interest
	  	 	16	 
	 Section 4.02
	 	 Conversion Agent
	  	 	17	 
	 Section 4.03
	 	 Provisions as to Paying Agent
	  	 	17	 
	 Section 4.04
	 	 Statements as to Defaults
	  	 	17	 
	 Section 4.05
	 	 Reports
	  	 	17	 
		
	 ARTICLE 5 DEFAULTS AND REMEDIES
	  	 	18	 
			
	 Section 5.01
	 	 Applicability of Article VI of the Base Indenture
	  	 	18	 
	 Section 5.02
	 	 Events of Default
	  	 	18	 
	 Section 5.03
	 	 Acceleration; Rescission and Annulment
	  	 	19	 
	 Section 5.04
	 	 Additional Interest
	  	 	20	 
	 Section 5.05
	 	 Payments of Notes on Default; Suit Therefor
	  	 	21	 
	 Section 5.06
	 	 Application of Monies Collected by Trustee
	  	 	23	 
	 Section 5.07
	 	 Proceedings by Holders
	  	 	23	 
	 Section 5.08
	 	 Proceedings by Trustee
	  	 	24	 
	 Section 5.09
	 	 Remedies Cumulative and Continuing
	  	 	24	 
	 Section 5.10
	 	 Direction of Proceedings and Waiver of Defaults by Majority of Holders
	  	 	25	 
	 Section 5.11
	 	 Notice of Defaults
	  	 	25	 
	 Section 5.12
	 	 Undertaking to Pay Costs
	  	 	25	 


  
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	 ARTICLE 6 CONCERNING THE HOLDERS
	  	 	26	 
			
	 Section 6.01
	 	 Action by Holders
	  	 	26	 
	 Section 6.02
	 	 Proof of Execution by Holders
	  	 	26	 
	 Section 6.03
	 	 Who Are Deemed Absolute Owners
	  	 	26	 
	 Section 6.04
	 	 Company-Owned Notes Disregarded
	  	 	27	 
	 Section 6.05
	 	 Revocation of Consents; Future Holders Bound
	  	 	27	 
		
	 ARTICLE 7 HOLDERS’ MEETINGS
	  	 	27	 
			
	 Section 7.01
	 	 Purpose of Meetings
	  	 	27	 
	 Section 7.02
	 	 Call of Meetings by Trustee
	  	 	28	 
	 Section 7.03
	 	 Call of Meetings by Company or Holders
	  	 	28	 
	 Section 7.04
	 	 Qualifications for Voting
	  	 	28	 
	 Section 7.05
	 	 Regulations
	  	 	28	 
	 Section 7.06
	 	 Voting
	  	 	29	 
	 Section 7.07
	 	 No Delay of Rights by Meeting
	  	 	29	 
	 Section 7.08
	 	 Applicability of Section 10.06 of Base Indenture
	  	 	30	 
		
	 ARTICLE 8 SUPPLEMENTAL INDENTURES
	  	 	30	 
			
	 Section 8.01
	 	 Supplemental Indentures Without Consent of Holders
	  	 	30	 
	 Section 8.02
	 	 Further Limitations
	  	 	30	 
		
	 ARTICLE 9 CONVERSION OF NOTES
	  	 	31	 
			
	 Section 9.01
	 	 Conversion Privilege
	  	 	31	 
	 Section 9.02
	 	 Conversion Procedure; Settlement Upon Conversion
	  	 	34	 
	 Section 9.03
	 	 Increased Conversion Rate Applicable to Certain Notes Surrendered for Conversion in Connection
with Make-Whole Fundamental Changes
	  	 	38	 
	 Section 9.04
	 	 Adjustment of Conversion Rate
	  	 	40	 
	 Section 9.05
	 	 Adjustments of Prices
	  	 	50	 
	 Section 9.06
	 	 Shares To Be Fully Reserved
	  	 	50	 
	 Section 9.07
	 	 Effect of Recapitalizations, Reclassifications and Changes of the Common Stock
	  	 	50	 
	 Section 9.08
	 	 Certain Covenants
	  	 	52	 
	 Section 9.09
	 	 Responsibility of Trustee
	  	 	53	 
	 Section 9.10
	 	 Notice to Holders Prior to Certain Actions
	  	 	54	 
	 Section 9.11
	 	 Stockholder Rights Plans
	  	 	54	 
	 Section 9.12
	 	 No Adjustments
	  	 	54	 
	 Section 9.13
	 	 Exchange in Lieu of Conversion
	  	 	55	 


  
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	 ARTICLE 10 REPURCHASE OF NOTES AT OPTION OF HOLDERS
	  	 	56	 
			
	 Section 10.01
	 	 Purchase at Option of Holders Upon a Fundamental Change
	  	 	56	 
	 Section 10.02
	 	 Withdrawal of Fundamental Change Purchase Notice
	  	 	58	 
	 Section 10.03
	 	 Deposit of Fundamental Change Purchase Price
	  	 	59	 
	 Section 10.04
	 	 Covenant to Comply with Applicable Laws Upon Purchase of Notes
	  	 	60	 
		
	 ARTICLE 11 NO REDEMPTION
	  	 	60	 
			
	 Section 11.01
	 	 Applicability of Articles III and XI of the Base Indenture; No Redemption
	  	 	60	 
		
	 ARTICLE 12 CONSOLIDATION, MERGER AND SALE OF ASSETS
	  	 	60	 
			
	 Section 12.01
	 	 Applicability of Article V of the Base Indenture
	  	 	60	 
	 Section 12.02
	 	 When Company May Merge, Etc
	  	 	60	 
	 Section 12.03
	 	 Successor Person Substituted
	  	 	61	 
		
	 ARTICLE 13 MISCELLANEOUS PROVISIONS
	  	 	61	 
			
	 Section 13.01
	 	 Investments
	  	 	61	 
	 Section 13.02
	 	 Provisions Binding on Company’s Successors
	  	 	61	 
	 Section 13.03
	 	 Official Acts by Successor Corporation
	  	 	61	 
	 Section 13.04
	 	 Governing Law; Jurisdiction
	  	 	61	 
	 Section 13.05
	 	 Legal Holidays
	  	 	62	 
	 Section 13.06
	 	 No Security Interest Created
	  	 	62	 
	 Section 13.07
	 	 Benefits of Indenture
	  	 	62	 
	 Section 13.08
	 	 Table of Contents, Headings, Etc
	  	 	62	 
	 Section 13.09
	 	 Multiple Originals
	  	 	62	 
	 Section 13.10
	 	 Severability
	  	 	63	 
	 Section 13.11
	 	 Calculations
	  	 	63	 
	 Section 13.12
	 	 Miscellaneous Amendments Under Base Indenture; Ratification of Base Indenture
	  	 	63	 
	 Section 13.13
	 	 Trustee’s Disclaimer
	  	 	63	 
	
	EXHIBIT	 
			
	 Exhibit A
	 	 Form of Note
	  	 	A-1	 


  
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 FOURTH SUPPLEMENTAL INDENTURE dated as of March 22, 2017 (this
“Supplemental Indenture”) between Tesla, Inc. (f/k/a/ Tesla Motors, Inc.), a Delaware corporation, as issuer (the “Company”, as more fully set forth in Section 1.01) and U.S. Bank National Association, a
national banking association, as trustee (the “Trustee”, as more fully set forth in Section 1.01), supplementing the Indenture, dated as of May 22, 2013, between the Company and the Trustee (the “Base
Indenture” and the Base Indenture, as amended and supplemented by this Supplemental Indenture, and as it may be further amended or supplemented from time to time with respect to the Notes, the “Indenture”). 

W I T N E S S E T H: 
 WHEREAS,
the Company executed and delivered the Base Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Company’s Securities, in an unlimited aggregate principal amount, in one or more series to be
established by the Company under, and authenticated and delivered as provided in, the Base Indenture; 
 WHEREAS, Sections 2.01 and 2.02 of
the Base Indenture provide for the Company to issue Securities thereunder in the form and on the terms set forth in one or more Board Resolutions, indentures supplemental thereto or Officers’ Certificates; 

WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of a single series of Securities designated as its
2.375% Convertible Senior Notes due 2022 (the “Notes” and each $1,000 principal amount thereof, unless the context otherwise requires, a “Note”), initially in an aggregate principal amount not to exceed $850,000,000
(or $977,500,000 if the Underwriters exercise their option to purchase additional Notes in full in accordance with the Underwriting Agreement), and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture; 
 WHEREAS, the Form of Note, the
Form of Notice of Conversion, the Form of Fundamental Change Purchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; 

WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this Supplemental Indenture have been complied with;
and 
 WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee
or a duly authorized authenticating agent, as in this Supplemental Indenture provided, the valid, binding and legal obligations of the Company, and this Supplemental Indenture a valid agreement according to its terms, have been done and performed,
and the execution of this Supplemental Indenture and the issue hereunder of the Notes have in all respects been duly authorized. 

  
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 NOW, THEREFORE, THIS SUPPLEMENTAL 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 benefit of each other and 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. For all purposes of the Indenture, except as otherwise expressly provided or
unless the context otherwise requires: 
 (a)    the terms defined in this Article 1 shall have the respective
meanings assigned to them in this Article 1 and include the plural as well as the singular and, to the extent applicable, supersede the definitions thereof in the Base Indenture; 

(b)    all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same
meanings as in the Base Indenture; and 
 (c)    the words “herein,” “hereof” and
“hereunder” and other words of similar import (i) when used with regard to any specified Article, Section or sub-division, refer to such Article, Section or sub-division of this Supplemental Indenture and (ii) otherwise, refer to the Indenture as a whole and not to any particular Article, Section or other subdivision. 

“Additional Interest” means all amounts, if any, payable pursuant to Section 5.04. 

“Additional Shares” shall have the meaning specified in Section 9.03(a). 

“Additional Notes” shall have the meaning specified in Section 2.08(a). 

“Base Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture. 

“Bid Solicitation Agent” means the Person appointed by the Company to solicit bids for the Trading Price of the Notes in
accordance with Section 9.01(b)(i). The Company shall initially act as the Bid Solicitation Agent. 
 “Capital
Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, including, without limitation, with respect to partnerships, partnership interests (whether general or limited)
and any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership. 

“Cash Settlement” shall have the meaning specified in Section 9.02(a). 

  
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 “Clause A Distribution” shall have the meaning specified in
Section 9.04(c). 
 “Clause B Distribution” shall have the meaning specified in Section 9.04(c). 

“Clause C Distribution” shall have the meaning specified in Section 9.04(c). 

“close of business” means 5:00 p.m., New York City time, on a Business Day. 

“Combination Settlement” shall have the meaning specified in Section 9.02(a). 

“Common Equity” of any Person means Capital Stock of such Person that are 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, and in
each case, not entitled to any preference in respect of dividends or amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding-up of such Person. 

“Common Stock” means the common stock of the Company, par value $0.001 per share, at the date of this Supplemental Indenture,
subject to Section 9.07. 
 “Company” shall have the meaning specified in the first paragraph of this Supplemental
Indenture, and subject to the provisions of Article 12 hereof, shall include its successors and assigns. 
 “Conversion
Agent” shall have the meaning specified in Section 4.02. 
 “Conversion Date” shall have the meaning
specified in Section 9.02(c). 
 “Conversion Obligation” shall have the meaning specified in Section 9.01(a).

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

“Conversion Rate” shall have the meaning specified in Section 9.01(a). 

“Conversion Settlement Amount” shall have the meaning specified in Section 9.02(a)(3). 

“Daily Conversion Value” means, for each of the 20 consecutive VWAP Trading Days during the Observation Period, 1/20th of the
product of : 
 (a)     the Conversion Rate on such VWAP Trading Day; and 

(b)     the Daily VWAP on such VWAP Trading Day. 

“Daily Measurement Value” means the Specified Dollar Amount divided by 20. 

  
 3 








 “Daily Settlement Amount,” for each of the 20 consecutive VWAP Trading Days
during the applicable Observation Period, shall consist of: 
 (a)     cash equal to the lesser of
(i) the Daily Measurement Value and (ii) the Daily Conversion Value; and 
 (b)     if the
Daily Conversion Value on such VWAP Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the
Daily VWAP on such VWAP Trading Day. 
 “Daily VWAP” means, for each of the 20 consecutive VWAP Trading Days during the
applicable Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “TSLA.Q <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 Common Stock on such VWAP Trading Day reasonably 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. 

“Defaulted Amounts” means any amounts on any Note (including, without limitation, the Fundamental Change Purchase Price,
principal and interest) that are payable but are not paid or duly provided for when due. 
 “Designated Institution” shall
have the meaning specified in Section 9.13(a). 
 “Distributed Property” shall have the meaning specified in
Section 9.04(c). 
 “Effective Date” shall have the meaning specified in Section 9.03(c), except that, as used in
Section 9.04, “Effective Date ” means the first date on which shares of the Common Stock trade on the Relevant Stock Exchange, regular way, reflecting the relevant share split or share combination, as applicable. 

“Event of Default” shall have the meaning specified in Section 5.02, notwithstanding anything to the contrary in the
Base Indenture. 
 “Ex-Dividend Date” means the first date on which the shares of
Common Stock trade on the Relevant Stock Exchange, regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock on the Relevant Stock Exchange (in
the form of due bills or otherwise) as determined by the Relevant Stock Exchange. 
 “Expiration Date” shall have the
meaning specified in Section 9.04(e). 

  
 4 








 “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 Purchase Notice” shall mean the “Form of Fundamental Change Purchase
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. 

A “Fundamental Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the
following occurs: 
 (a)     a “person” or “group” within the meaning of
Section 13(d) of the Exchange Act, other than the Company, its wholly owned Subsidiaries or the employee benefit plans of the Company or its wholly owned Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange
Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing
more than 50% of the voting power of the Company’s Common Equity; 
 (b)     the consummation of
(1) except as set forth in clause (2) below, any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted
into, or exchanged for, cash, securities or other property or assets; (2) any consolidation, merger, combination, statutory or binding share exchange or similar transaction involving the Company pursuant to which the Common Stock will be
converted into cash, securities or other property or assets; or (3) any sale, conveyance, lease or other transfer or similar transaction in one transaction or a series of related transactions of all or substantially all of the consolidated
assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s Subsidiaries; provided, however, that neither (A) a transaction described in clause (1) or (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 Common Equity of the continuing or surviving corporation or transferee or the parent
thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction nor (B) any merger of the Company solely for the purpose of changing its jurisdiction of incorporation that
results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of Common Equity of the surviving entity shall be a Fundamental Change pursuant to this clause (b); 

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

  
 5 








 (d)     the 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 shall not constitute a Fundamental
Change if at least 90% of the consideration received or to be received by holders of the Common Stock (excluding cash payments for fractional shares or pursuant to statutory appraisal rights) in connection with such transaction or transactions
consists of shares of common stock or depositary receipts representing Common Equity interests, in each case, 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 (such securities, “Publicly Traded Securities”) and, as a result of such transaction or
transactions, the Notes become convertible into such Publicly Traded Securities, excluding cash payments for fractional shares or pursuant to statutory appraisal rights (subject to the provisions of Section 9.02(a)). Any transaction or event
that constitutes a Fundamental Change under both clause (a) and clause (b) without giving effect to the proviso in clause (b) above will be deemed to be solely a Fundamental Change under clause (b) of such definition (subject to
the proviso to clause (b)). 
 “Fundamental Change Company Notice” shall have the meaning specified in
Section 10.01(c). 
 “Fundamental Change Purchase Date” shall have the meaning specified in Section 10.01(a).

 “Fundamental Change Purchase Notice” shall have the meaning specified in Section 10.01(b)(i). 

“Fundamental Change Purchase Price” shall have the meaning specified in Section 10.01(a). 

“Global Note” means a Note in the form of a Global Security. 

“Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture. 

“Interest Payment Date” means each March 15 and September 15 of each year, beginning on September 15, 2017.

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

  
 6 








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

(i)    a failure by the Relevant Stock Exchange to open for trading during its regular trading session; or

 (ii)    the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled
Trading Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Relevant Stock
Exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock. 

“Maturity Date” means March 15, 2022. 

“Measurement Period” shall have the meaning specified in Section 9.01(b)(i). 

“Note” or “Notes” shall have the meaning specified in the third paragraph of the recitals of this
Supplemental Indenture. 
 “Note Register” shall mean the register maintained, with respect to the Notes, by the Registrar
pursuant to Section 2.04 of the Base Indenture. 
 “Notice of Conversion” shall have the meaning specified in
Section 9.02(b)(1). 
 “Observation Period” with respect to any Note surrendered for conversion means: 

(i)    if the relevant Conversion Date occurs prior to December 15, 2021, the 20 consecutive VWAP
Trading Day period beginning on, and including, the third VWAP Trading Day immediately succeeding such Conversion Date; and 

(ii)    if the relevant Conversion Date occurs on or after December 15, 2021, the 20 consecutive VWAP
Trading Day period beginning on, and including, the 22nd Scheduled Trading Day immediately preceding the Maturity Date (if such Scheduled Trading Day is not a VWAP Trading Day, the immediately following VWAP Trading Day). 

“open of business” means 9:00 a.m., New York City time, on a Business Day. 

  
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 “outstanding” means, with respect to any Note, that such Note is considered
“outstanding” under Section 2.09 of the Base Indenture, subject to Section 6.04; provided that the following Notes shall be deemed to not be “outstanding”: (a) all Notes that have been converted pursuant to
Article 9 of this Supplemental Indenture; and (b) all Notes that have been repurchased by the Company pursuant to Section 2.08(b) (other than pursuant to cash-settled swaps or other derivatives). 

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

“Physical Notes” means permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and
integral multiples thereof. 
 “Physical Settlement” shall have the meaning specified in Section 9.02(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 2.08 of the Base Indenture 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. 
 “Publicly Traded
Securities” shall have the meaning specified in the definition of “Fundamental Change”. 
 “Record Date”
means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or
such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of holders of Common Stock (or such other security) entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors, statute, contract or otherwise). 
 “Reference Property”
shall have the meaning specified in Section 9.07(a). 
 “Regular Record Date,” with respect to any Interest Payment
Date, shall mean the March 1 or September 1 (whether or not such day is a Business Day) immediately preceding the applicable March 15 or September 15 Interest Payment Date, respectively. 

“Relevant Stock Exchange” means The NASDAQ Global Select Market or, if the Common Stock (or other security for which a Last
Reported Sale Price must be determined) is not then listed on The NASDAQ Global Select Market, the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common
Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, the over-the-counter market, as reported by OTC Markets Group Inc.
or similar organization or, if the Common Stock (or such other security) is not then quoted by the OTC Markets Group Inc. or similar organization, the principal other market on which the Common Stock (or such other security) is then traded. 

  
 8 








 “Reporting Obligations” shall have the meaning specified in Section 5.04.

 “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the Relevant Stock Exchange. If the
Common Stock is not listed, quoted or traded on any U.S. securities exchange or other market, “ Scheduled Trading Day ” means a Business Day. 

“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. 
 “Share Exchange Event” shall have the meaning
specified in Section 9.07(a). 
 “Significant Subsidiary” means, with respect to any Person, a Subsidiary of such
Person that is a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X promulgated by the SEC; provided that, in the
case of a Subsidiary that meets the criteria of clause (3) of the definition thereof but not clause (1) or (2) thereof, such Subsidiary shall not be deemed to be a Significant Subsidiary unless the Subsidiary’s income from
continuing operations before income taxes, extraordinary items and cumulative effect of changes in accounting principles exclusive of amounts attributable to any non-controlling interests for the last
completed fiscal year prior to the date of such determination exceeds $150 million. 
 “Specified Dollar Amount” means
the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified in the notice specifying the Company’s chosen Settlement Method or otherwise deemed specified. 

“Spin-Off” shall have the meaning specified in Section 9.04(c). 

“Stock Price” shall have the meaning specified in Section 9.03(c). 

“Successor Person” shall have the meaning specified in Section 12.02. 

“Supplemental Indenture” has the meaning specified in the first paragraph of this Supplemental Indenture. 

“Trading Day” means a day on which: 
  

	 	(a)	trading in the Common Stock (or any other security for which a Last Reported Sale Price must be determined) generally occurs on the Relevant Stock Exchange; and 


 

	 	(b)	a Last Reported Sale Price for the Common Stock (or Last Reported Sale Price for such other security) is available on the Relevant Stock Exchange, 


  
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 provided, however, that if the Common Stock (or such other security) is not then listed, quoted or traded
on any U.S. securities exchange or any other market, “Trading Day” means a Business Day. 
 “Trading
Price” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time,
on such determination date from three independent nationally recognized securities dealers the Company selects; 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 $5,000,000
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 Common Stock and the
Conversion Rate. 
 “Trigger Event” shall have the meaning specified in Section 9.04(c). 

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

“Underwriters” means the several underwriters named in Schedule I to the Underwriting Agreement. 

“Underwriting Agreement” means the Underwriting Agreement, dated as of March 16, 2017, among the Company and Goldman,
Sachs & Co., Deutsche Bank Securities Inc., Citigroup Global Markets Inc. and Morgan Stanley & Co. LLC, as representatives of the several underwriters related to the Notes. 

“unit of Reference Property” shall have the meaning specified in Section 9.07(a). 

“Valuation Period” shall have the meaning specified in Section 9.04(c). 

“VWAP Trading Day” means any day on which: 

(i)    there is no Marketing Disruption Event; and 

(ii)    trading in the Common Stock generally occurs on the Relevant Stock Exchange; 

If the Common Stock is not so listed or admitted for trading on any Relevant Stock Exchange, “VWAP Trading Day” means a Business Day. 

  
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 Section 1.02    References to Interest. Unless the context
otherwise requires, any reference to interest on, or in respect of, any Note in the Indenture shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to Section 5.04. Unless
the context otherwise requires, any express mention of Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made. 

ARTICLE 2 
 ISSUE, DESCRIPTION,
EXECUTION, REGISTRATION AND EXCHANGE OF NOTES 
 Section 2.01    Scope of Supplemental Indenture. This
Supplemental Indenture amends and supplements the provisions of the Base Indenture, to which provisions reference is hereby made. The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be
applicable only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time in accordance herewith, and shall not apply to any other Securities that may be issued under the Base Indenture unless a
supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. For all purposes under the Base Indenture, the Notes shall constitute a single series of Securities, and with regard
to any matter requiring the consent under the Base Indenture of Holders of multiple series of Securities voting together as a single class, the consent of Holders of the Notes voting as a separate class shall also be required and the same threshold
shall apply. The provisions of this Supplemental Indenture shall supersede any conflicting provisions in the Base Indenture. 

Section 2.02    Designation and Amount. The Notes are hereby created and authorized as a single series of
Securities under the Base Indenture. The Notes shall be designated as the “2.375% Convertible Senior Notes due 2022.” The aggregate principal amount of Notes that may be authenticated and delivered under the Indenture is initially limited
to $850,000,000 (or $977,500,000 if the Underwriters exercise their option to purchase additional Notes in full in accordance with the Underwriting Agreement), subject to Section 2.08 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 9.02(d) or Section 10.03(c) hereof or Section 2.07, 2.08, 2.11 or 9.06 of the Base Indenture. 

Section 2.03    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 the Indenture. 

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 the Indenture as may be required by the Depositary or the Trustee as custodian for Cede & Co., 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, quoted, 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. 

  
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 Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the Officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of the 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, quoted or traded, or to conform to usage or to indicate
any special limitations or restrictions to which any particular Notes are subject. 
 Section 2.04    Date and
Denomination of Notes; Payments of 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 bear interest from the date specified on the face of such Note. 

(b)    The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of
business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The Company shall pay interest (i) on any Physical Notes (A) to Holders
holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their addresses as they appear in the Note Register and (B) to Holders holding Physical Notes having an
aggregate principal amount of more than $5,000,000, either by check mailed to each such Holder at their addresses as they appear in the Note Register or, upon application by such a Holder to the Registrar not later than the relevant Regular 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 Registrar to the contrary or (ii) on any Global
Note by wire transfer of immediately available funds to the account of the Depositary or its nominee, as the case may be, as the registered Holder of such Global Note. 

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

(i)    The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the 

  
 12 








 
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 prepared by the Company of the proposed
payment of such Defaulted Amounts and the special record date therefor to be mailed, first-class postage prepaid, or if the Holder is DTC or a nominee of DTC pursuant to the Applicable Procedures, 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 so mailed or given, 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 2.04(c). 

(ii)    The Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent
with the requirements of any securities exchange or automated quotation system on which the Notes may be listed, quoted or traded, and upon such notice as may be required by such exchange or automated quotation system. 

Section 2.13 of the Base Indenture shall be superseded in its entirety by this Section 2.04(c), and any reference in the Base
Indenture to such Section 2.13 shall be deemed to refer instead to this Section 2.04(c). 

Section 2.05    Exchange and Registration of Transfer of Notes; Depositary.

(a)    Notwithstanding anything in the Base Indenture to the contrary, none of the Company, the Trustee or the 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 10. 
 All Notes issued upon any registration of
transfer or exchange of Notes in accordance with the Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under the Indenture as the Notes surrendered upon such registration of transfer
or exchange. 
 (b)    The Notes shall initially be issued in the form of one or more Global Notes in the aggregate
principal amount of $850,000,000 (or $977,500,000 if the Underwriters exercise their option to purchase additional Notes in full in accordance with the Underwriting Agreement). 

(c)    The Company initially appoints DTC to act as Depositary with respect to each Global Note. Initially, each
Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co. 

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

Neither the Company, the Trustee (including in its capacity as Paying Agent) 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 in a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership
interests. 
 (d)    Section 2.14(b) of the Base Indenture shall be superseded by this Section 2.05(d),
and any reference in the Base Indenture to Section 2.14(b) thereof shall be deemed to refer instead to this Section 2.05(d). 
  

Physical Notes shall be issued and delivered by the Company: 

(i)    to each Person that the Depositary identifies as a beneficial owner of the related Global Notes only
if (x) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed within 90 days, or (y) the Depositary ceases to be
registered as a clearing agency under the Exchange Act and a successor depositary is not appointed within 90 days; or 

(ii)    if an Event of Default with respect to the Notes has occurred and is continuing, to each beneficial
owner of any Global Note who requests that its beneficial interests therein be issued as a Physical Note. 
 The Company shall execute, and
the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (ii) above, a Physical Note to such beneficial owner in a
principal amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i)(a) or (i)(b) above, Physical Notes to each beneficial owner of the related
Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be
canceled. 
 Physical Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(d) shall be
registered in such names and in such authorized denominations as the 

  
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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
Physical Notes to the Persons in whose names such Physical Notes are so registered. 
 Notwithstanding anything to the contrary in the
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 Physical Note in accordance with the provisions of the Indenture. 

Section 2.06    [Reserved].

Section 2.07    Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes
surrendered for the purpose of payment, repurchase (including pursuant to Section 2.08(b), but not including Notes repurchased pursuant to cash-settled swaps or other derivatives), registration of transfer or exchange or conversion, if
surrendered to any of the Company’s agents, Subsidiaries or Affiliates, to be delivered to the Trustee for cancellation pursuant to Section 2.12 of the Base Indenture. All Notes delivered to the Trustee shall be canceled promptly by
the Trustee and will no longer be considered outstanding, and no Notes shall be issued to replace any such Notes cancelled hereunder or under the Base Indenture. Section 2.12 of the Base Indenture is hereby amended with respect to the
Notes by replacing the word “may” in the first sentence thereof with the word “shall.” 

Section 2.08. Additional Notes; Repurchases. (a) The Company may, without the consent of the Holders and
notwithstanding Section 2.02, reopen the Indenture and issue Additional Notes under the Indenture with the same terms as the Notes initially issued hereunder (except for any differences in the issue price and interest accrued prior to the issue
date) in an unlimited aggregate principal amount (the “Additional Notes”); provided that if any such Additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes, such
Additional Notes shall have one or more separate CUSIP numbers. Prior to the issuance of any such Additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, such
Officers’ Certificate and Opinion of Counsel to cover such matters, in addition to those required by Sections 10.04 and 10.05 of the Base Indenture, as the Trustee shall reasonably request. 

(b)    The Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are
surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private agreements, including by
cash-settled swaps or other derivatives. 

  
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 ARTICLE 3 

SATISFACTION AND DISCHARGE 

Section 3.01    Applicability of Sections 8.01, 8.03 and 8.04 of the Base Indenture. 

(a)    Section 8.01 of the Base Indenture shall be superseded by Section 3.02 hereof, and any reference in the
Base Indenture to Section 8.01 thereof or any provision contained therein shall be deemed to refer to Section 3.02 hereof or the applicable provision contained in Section 3.02 hereof. 

(b)    Sections 8.03 and 8.04 of the Base Indenture and any reference in the Base Indenture to any such Section or
the provisions contained therein shall be deemed deleted with respect to the Notes. 

Section 3.02    Satisfaction and Discharge. The Indenture shall upon request of the Company contained in
an Officers’ Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of the Indenture, when: 

(a)    (i) 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 2.08 of the Base Indenture) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable,
after the Notes have become due and payable, whether on the Maturity Date or on any Fundamental Change Purchase Date, and/or have been converted (and the related Conversion Settlement Amounts have been determined), cash or, solely to satisfy the
Company’s Conversion Obligation, cash, and if applicable, shares of Common Stock sufficient to pay all of the outstanding Notes and/or satisfy all outstanding conversions, as the case may be, and pay all other sums due and payable under the
Indenture and the Notes by the Company; and 
 (b)    the Company has delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the Indenture have been complied with.

Notwithstanding the satisfaction and discharge of the Indenture, the obligations of the Company to the Trustee under Section 7.07 of the Base Indenture
shall survive. 
 ARTICLE 4 

PARTICULAR COVENANTS OF THE COMPANY 

Section 4.01    Payment of Principal and Interest. This Section 4.01 shall supersede
Section 4.01 of the Base Indenture and all references in the Base Indenture to Section 4.01 thereof shall be deemed, for the purposes of the Notes, to be references to this Section 4.01. The Company covenants and agrees that it will
cause to be paid the principal (including the Fundamental Change Purchase Price, if applicable) of, and accrued and unpaid interest and the Conversion Settlement Amount, if any, on, each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes. 

  
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 Section 4.02    Conversion Agent. The Paying Agent and
Registrar for the Notes shall be located in the continental United States of America. The Company will also maintain in the continental United States of America an office or agency where the Notes may be surrendered for conversion
(“Conversion Agent”). The Company will give prompt written notice to the Trustee of the location, and any change in the location, of the Conversion Agent. The Conversion Agent shall be considered an “Agent” under
the Base Indenture. 
 The Company may also from time to time designate additional offices or agencies where the Notes may be surrendered
for conversion and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain a Conversion Agent in the continental United States of
America. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The term “Conversion Agent” includes any such
additional or other offices or agencies, as applicable. 
 The Company hereby initially designates the Trustee as the Conversion Agent, and
hereby initially designates the Corporate Trust Office as the location of the Paying Agent, Registrar and Conversion Agent for the Notes. 

Section 4.03    Provisions as to Paying Agent. (a) The Company shall, on or before each due date of the
principal (including the Fundamental Change Purchase Price, if applicable) of, or accrued and unpaid interest on or cash due upon conversion of, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the
Fundamental Change Purchase Price, if applicable), accrued and unpaid interest or cash due upon conversion of the Notes, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such
action; provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date. 

(b)    Section 8.05 of the Base Indenture is hereby amended with respect to the Notes by adding the following proviso
to the end of the sentence: “; provided, however, that the Trustee or the Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general circulation in The Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.” 

Section 4.04    Statements as to Defaults. Any notice delivered by the Company pursuant to
Section 4.03 of the Base Indenture shall be delivered to the Corporate Trust Office of the Trustee in accordance with Section 10.02 of the Base Indenture, and shall make specific reference to the Indenture, the Company and the Notes. 

Section 4.05    Reports. The Company shall file with the Trustee and the Holders copies of any documents
or reports that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or reports, or portions thereof, subject to confidential treatment and any
correspondence with the SEC) 

  
 17 








 
within 15 days after the same are required to be filed with the SEC (giving effect to any grace period provided by Rule 12b-25 or any successor rule
under the Exchange Act). Any such document or report that the Company files with the SEC via the SEC’s EDGAR system (or any successor thereto) shall be deemed to be filed with the Trustee and the Holders for purposes of this
Section 4.05 at the time such document or report is filed via the EDGAR system (or such successor thereto). The Trustee shall have no obligation to determine whether or not such documents or reports have been filed through the EDGAR filing
system (or such successor thereto). Delivery of the reports and documents described in this Section 4.05 to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officers’
Certificate). 
  
 ARTICLE 5 

DEFAULTS AND REMEDIES 

Section 5.01    Applicability of Article VI of the Base Indenture. Article VI of the
Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 5 shall, with respect to the Notes, supersede in its entirety Article VI of the Base Indenture, and all references in the Base Indenture to
Article VI thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 5 and the applicable provisions set forth in this Article 5, respectively. Without
limiting the forgoing, all references in Section 7.07 of the Base Indenture to Section 6.01(d) or (e) of the Base Indenture shall, with respect to the Notes, be deemed to be references to Section 5.02(h) or
Section 5.02(i) hereof, respectively. In addition, the second sentence of Section 9.02 of the Base Indenture and any reference to waivers in such Section 9.02 shall be deemed deleted with respect to the Notes. 

Section 5.02    Events of Default. Each of the following events shall be an “Event of
Default” with respect to the Notes: 
 (a)    default in any payment of interest on any Note when due and
payable and the default continues for a period of 30 days; 
 (b)    default in the payment of principal of any Note
when due and payable on the Maturity Date, 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 the Indenture upon
exercise of a Holder’s conversion right for a period of five Business Days; 
 (d)    failure by the Company to
comply with its obligations under Article 12 hereof; 
 (e)    failure by the Company to provide a Fundamental
Change Company Notice after the occurrence of a Fundamental Change within the time period required by Section 10.01(c); 

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

  
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 (g)    default by the Company or any Significant Subsidiary of the Company
with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $150 million (or its foreign currency equivalent)
in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness now exists or shall hereafter be created, constituting a failure to pay the principal of any such indebtedness when due and payable at its stated
maturity, upon required purchase, upon declaration of acceleration or otherwise, unless such principal is paid (or the indebtedness with respect thereto is discharged) or such payment of such principal is waived or is otherwise no longer due and
payable or such acceleration is rescinded or annulled, prior to a date that is 30 days after written notice of such failure to pay has been received by the Company or such Significant Subsidiary from the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding (provided, however, that if such principal is paid (or the indebtedness with respect thereto is discharged) or such payment of such principal is waived or is otherwise no longer due and
payable or such acceleration is rescinded or annulled, then the Event of Default by reason of the failure to pay such principal when due shall be deemed not to have occurred); 

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

(i)    an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary of the
Company seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60
consecutive calendar days. 
 Section 5.03    Acceleration; Rescission and Annulment. If one or more
Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default specified in Section 5.02(h) or Section 5.02(i) with respect to the Company
(and not solely with respect to a Significant Subsidiary of the Company)), 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 declare 100% of the 

  
 19 








 
principal amount of and accrued and unpaid interest, if any, on all the Notes to be immediately due and payable, and upon any such declaration such principal and accrued and unpaid interest, if
any, shall be due and payable immediately. If an Event of Default specified in Section 5.02(h) or Section 5.02(i) occurs with respect to the Company (and not solely with respect to a Significant Subsidiary of the Company), 100% of the
principal amount of and accrued and unpaid interest, if any, on the Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

The Holders of a majority in aggregate principal amount of the Notes then outstanding by written notice to the Company and the Trustee, may
rescind and annul any such acceleration with respect to the Notes (except with respect to nonpayment of the principal of and accrued and unpaid interest, if any, on the Notes; with respect to a Default in respect of a provision that under
Section 9.03 of the Base Indenture and Section 8.02 cannot be amended without the consent of each affected Holder; and with respect to the failure to deliver the consideration due upon conversion of the Notes) and its consequences if: 

(a)    rescission would not conflict with any judgment or decree of a court of competent jurisdiction; and 

(b)    any and all Events of Default under the Indenture with respect to the Notes, other than the nonpayment of the
principal of and interest on the Notes that have become due solely by such declaration of acceleration, shall have been cured or waived as described herein. 

No such rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right
consequent thereon. 
 Section 5.04    Additional Interest. Notwithstanding anything in the Indenture
or in the Notes to the contrary, to the extent elected by the Company, the sole remedy for an Event of Default relating to (i) the failure by the Company to file with the Trustee pursuant to Section 314(a)(1) of the TIA any documents
or reports that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or (ii) the failure by the Company to comply with its reporting obligations under Section 4.05 (the obligations
described in clauses (i) and (ii), the “Reporting Obligations”) shall for the first 270 calendar days after the occurrence of such an Event of Default consist exclusively of the right to receive additional interest
(“Additional Interest”) on the Notes at a rate equal to (x) 0.25% per annum of the principal amount of the Notes outstanding for the first 180 days beginning on, and including, the date on which such Event of Default first
occurs and (y) 0.50% per annum of the principal amount of the Notes outstanding for the last 90 days of such 270-day period, in each case, as long as such Event of Default is continuing. 

If the Company so elects to pay Additional Interest, any such Additional Interest shall be payable in the same manner and on the same dates as
the stated interest payable on the Notes. On the 271st calendar day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with the Reporting Obligations is not cured or waived prior to such 271st
calendar day), the Notes shall be subject to acceleration under Section 5.03. The provisions of this Section 5.04 shall not affect the rights of Holders of the Notes in the event of the occurrence of any other Event of Default. In the
event the Company does not elect to pay the 

  
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Additional Interest following an Event of Default relating to the Reporting Obligations in accordance with this Section 5.04 or the Company elected to make such payment but does not pay the
Additional Interest when due, the Notes shall be immediately subject to acceleration under Section 5.03. 
 In order to elect to pay
the Additional Interest as the sole remedy during the first 270 days after the occurrence of an Event of Default relating to the failure by the Company to comply with the Reporting Obligations in accordance with this Section 5.04, the Company
must notify all Holders of the Notes, the Trustee and the Paying Agent of such election on or prior to 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 under Section 5.03. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee such a notice, the Trustee may assume without inquiry that no
Additional Interest is payable. 
 Section 5.05    Payments of Notes on Default; Suit Therefor. If an
Event of Default described in clause (a) or (b) of Section 5.02 shall have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable
on the Notes for principal (including the Fundamental Change Purchase Price, if applicable), and interest, if any, with interest on any overdue principal, and interest, if any, at the rate borne by the Notes at such time, and, in addition thereto,
such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.07 of the Base Indenture. If the Company shall fail to first pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated. 

In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes
under any insolvency, bankruptcy or similar 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 or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company
or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to
the provisions of this Section 5.05, 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 (including the Fundamental Change Purchase Price, if
applicable), and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable
in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings


  
 21 








 
relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any
such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.07 of the Base Indenture, and to take any other action with respect to such claims, including participating as a member of any
official committee of creditors, as it reasonably deems necessary or advisable, unless prohibited by law or applicable regulations, and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due
it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.07 of the Base Indenture, incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement
or otherwise. 
 Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. 

All rights of action and of asserting claims under the 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 the 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 the Indenture and such proceedings shall have been discontinued or
abandoned because of any waiver pursuant to Section 5.10 or any rescission and annulment pursuant to Section 5.03 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. 

  
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 Section 5.06    Application of Monies Collected by
Trustee. Any monies collected by the Trustee pursuant to this Article 5 with respect to the Notes and any other monies or property distributable in respect of the Company’s obligations under the Indenture following an Event of
Default specified in Section 5.02(h) or Section 5.02(i) with respect to the Company 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 (or in accordance with Applicable Procedures, with respect to Global Notes): 

First, to the payment of all amounts due the Trustee under Section 7.07 of the Base Indenture; 

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

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

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

Section 5.07    Proceedings by Holders. Except to enforce the right to receive payment of principal
(including, if applicable, the Fundamental Change Purchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note may pursue any remedy with respect to the Indenture
or the Notes, unless: 
 (a)    such Holder has previously given to the Trustee notice that an Event of Default is
continuing; 
 (b)    Holders of at least 25% in principal amount of the outstanding Notes have requested the Trustee to
pursue such remedy; 

  
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 (c)    such Holders shall have offered the Trustee security or indemnity
reasonably satisfactory to it against any loss, liability or expense; 
 (d)    the Trustee has not complied with such
request within 60 days after its receipt of the request and the offer of such security or indemnity; and 
 (e)    the
Holders of a majority in principal amount of the outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period, 

it being understood and intended, and being expressly covenanted by the Holder of every Note with every Holder and the Trustee that no one or more Holders
shall have any right in any manner whatever by virtue of or by availing of any provision of the Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under the Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and enforcement of this
Section 5.07, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity. 

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

Section 5.08    Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by the 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 the Indenture or in aid of the exercise of any power granted in the Indenture, or to enforce any other legal or equitable right vested in the Trustee by the
Indenture or by law. 
 Section 5.09    Remedies Cumulative and Continuing. Except as provided in the
last sentence of Section 2.08(b) of the Base Indenture, all powers and remedies given by this Article 5 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 the 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 5.07, every power and remedy given by this Article 5 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. 

  
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 Section 5.10    Direction of Proceedings and Waiver of Defaults by
Majority of Holders. Subject to Section 7.02(f) of the Base Indenture, the Holders of a majority in 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 (a) such direction shall not be in conflict with any
rule of law or with the Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is unduly
prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes
waive an existing Default or Event of Default hereunder (except (w) with respect to nonpayment of the principal of and accrued and unpaid interest, if any, on the Notes; (x) with respect to the Company’s failure to repurchase the
Notes when required under this Supplemental Indenture; (y) with respect to a Default in respect of a provision that under Section 8.02 hereof or Section 9.03 of the Base Indenture cannot be amended without the consent of each affected
Holder; or (z) with respect to the failure to deliver the consideration due upon conversion of the Notes). The Indenture shall not be deemed to contain the provision set forth in clause (B) of Section 316(a)(1) of the TIA.
Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 5.10, said Default or Event of Default shall for all purposes of the Notes and the 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. Prior to taking any action under the Indenture at the Holders’ instruction, the
Trustee shall be entitled to security from or indemnification by the Holders satisfactory to it against all losses, liabilities and expenses. 

Section 5.11    Notice of Defaults. If a Default has occurred and is continuing and is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each Holder of the Notes, at the address of such Holder included in the Note Register, notice of such Default within 90 days after it occurs; provided that, except in the case of a
Default in the payment of the principal of, or interest on, any of the Notes (including a Default in the payment of the Fundamental Change Purchase Price) 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 withholding the notice is in the interests of the Holders of the Notes. This Section 5.11 shall supersede Section 7.05 of the
Base Indenture, and any reference in the Base Indenture to such Section 7.05 thereof shall be deemed to refer instead to this Section 5.11. The proviso set forth in Section 315(b) of the TIA shall not apply with respect to
the Notes. 
 Section 5.12    Undertaking to Pay Costs. All parties to the Indenture agree, and each
Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, 

  
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in its discretion, require, in any suit for the enforcement of any right or remedy under the 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 5.12 (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 (including the Fundamental Change Purchase Price, if applicable) of, accrued and unpaid 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 right to
convert any Note in accordance with the provisions of Article 9. 
 ARTICLE 6 

CONCERNING THE HOLDERS 

Section 6.01    Action by Holders. Whenever in the Indenture it is provided that the Holders of a
specified percentage of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing,
or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article 7, or (c) by a combination of such instrument or instruments and any such record
of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix, in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record date if one is selected shall be not more than 15 days prior to the date of commencement of solicitation of such action. 

Section 6.02    Proof of Execution by Holders. Subject to the provisions of Section 7.01 of the Base
Indenture, Section 7.02 of the Base Indenture and Section 7.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or by a certificate of the Registrar. The record of any Holders’ meeting shall be proved in
the manner provided in Section 7.06. 
 Section 6.03    Who Are Deemed Absolute Owners. The
Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any 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 Registrar) for the purpose of receiving payment of or on account of the principal of
and (subject to Section 2.04) accrued and unpaid interest on such Note, for 

  
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conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any authenticating agent nor any Paying Agent nor any Conversion Agent nor any Registrar shall be
affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to
satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. 

Section 6.04    Company-Owned Notes Disregarded. This Section 6.04 shall supersede Section 2.10
of the Base Indenture, and any reference in the Base Indenture to Section 2.10 thereof shall be deemed to refer instead to this Section 6.04. In determining whether the Holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under the Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are so owned shall be so disregarded. 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 of the Base Indenture, 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 6.05    Revocation of Consents; Future Holders Bound. Notwithstanding anything to the contrary in
Section 9.05 of the Base Indenture, at any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the
Notes specified in the 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 6.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any
Note issued in exchange or substitution therefor or upon registration of transfer thereof. 
 ARTICLE 7 

HOLDERS’ MEETINGS 

Section 7.01    Purpose of Meetings. A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article 7 for any of the following purposes: 
 (a)    to give any notice to the
Company or to the Trustee or to give any directions to the Trustee permitted under the Indenture, or to consent to the waiving of any Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article 5; 

  
 27 








 (b)    to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article VII of the Base Indenture; 
 (c)    to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section 9.02 of the Base Indenture, subject to Section 8.02; or 

(d)    to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal
amount of the Notes under any other provision of the Indenture or under applicable law. 
 Section 7.02    Call
of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section 7.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the
Holders, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 6.01, shall be mailed to Holders at their addresses
as they shall appear on the Note Register. Such notice shall also be mailed to the Company. Such notices shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting. 

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

Section 7.03    Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 7.01, by mailing notice thereof as provided in Section 7.02. 

Section 7.04    Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person
shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining to such
meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel. 
 Section 7.05    Regulations. Notwithstanding any
other provisions of the Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in


  
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regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. 
 The Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders as provided in Section 7.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount of the Notes represented at the meeting and entitled to vote at the meeting. 

Subject to the provisions of Section 6.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting
to be not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting
of Holders duly called pursuant to the provisions of Section 7.02 or Section 7.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without further notice. 

Section 7.06    Voting. The vote upon any resolution submitted to any meeting of Holders shall be by
written ballot on which shall be subscribed the signatures of the Holders or of their representatives by proxy and the outstanding principal amount of the Notes held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 7.02. The record shall show the principal amount of the Notes
voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. 
 Any record so signed and
verified shall be conclusive evidence of the matters therein stated. 
 Section 7.07    No Delay of Rights by
Meeting. Nothing contained in this Article 7 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance
or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of the Indenture or of the Notes. 

  
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 Section 7.08    Applicability of Section 10.06 of Base
Indenture. Section 10.06 of the Base Indenture shall be superseded by this Article 7, and any reference in the Base Indenture to Section 10.06 thereof shall be deemed to refer instead to this Article 7. 

ARTICLE 8 
 SUPPLEMENTAL INDENTURES

 Section 8.01    Supplemental Indentures Without Consent of Holders. This Section 8.01 shall
supersede Section 9.01 of the Base Indenture, and any reference in the Base Indenture to Section 9.01 thereof shall be deemed to refer instead to this Section 8.01. The Company and the Trustee may amend or supplement the Indenture or
the Notes without notice to, or the consent of, any Holder: 
 (a)    to cure any ambiguity, omission, defect or
inconsistency in the Indenture or in the Notes in a manner that does not adversely affect the rights of any Holders of the Notes; 

(b)    to provide for the assumption by a Successor Person of the Company’s obligations under the Indenture and the
Notes, in accordance with the provisions of Article 12 hereof; 
 (c)    to make provisions with respect to
conversion rights of the Holders of Notes in accordance with Section 9.07; 
 (d)    to appoint a successor trustee
with respect to the Notes; 
 (e)    to add guarantees with respect to the Notes; 

(f)    to secure the Notes; 

(g)    to add to the Company’s covenants for the benefit of the Holders or surrender any right or power conferred
upon the Company; 
 (h)    to make any change that does not adversely affect the rights of any Holder; 

(i)    to comply with any requirement of the SEC in connection with the qualification of the Indenture under the TIA; or

 (j)    to conform the provisions of the Indenture to the “Description of Notes” section of the preliminary
prospectus supplement, dated March 15, 2017, as further supplemented and/or amended by the related pricing term sheet. 

Section 8.02    Further Limitations. This Section 8.02 shall supersede Section 9.03 of the Base
Indenture, and any reference in the Base Indenture to Section 9.03 thereof shall be deemed to refer instead to this Section 8.02. Without the consent of each Holder of an outstanding Note affected thereby, no amendment, supplement or
waiver under the Indenture or the Notes may: 
 (a)    change the Stated Maturity of the principal of or any interest on
the Notes; 

  
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 (b)    reduce the principal amount of or interest on the Notes; 

(c)    reduce the Fundamental Change Purchase Price of any Note or amend or modify the provisions with respect to the
purchase rights of the Holders in accordance with Article 10 in any manner adverse to the Holders of Notes; 

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

(e)    change the currency of payment of principal of (including the Fundamental Change Purchase Price) or interest on the
Notes, or change any Note’s place of payment; 
 (f)    impair the right of any Holder of Notes to receive payment
of principal and interest on such Holder’s Notes, or consideration due upon conversion, on or after the due dates therefor or to institute suit for the enforcement of any payment on, or with respect to, the Notes or the consideration due upon
conversion; 
 (g)    change the ranking of the Notes; 

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

(i)    modify any provision of Sections 6.08 and 6.13 of the Base Indenture, or Section 5.10 or this
Section 8.02 hereof; except to increase the percentage required for modification, amendment or waiver or to provide for consent of each affected Holder of Notes. 

ARTICLE 9 
 CONVERSION OF NOTES

 Section 9.01    Conversion Privilege. (a) Subject to and upon compliance with the provisions of this
Article 9, 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 in principal amount or an integral multiple thereof) of such Note (i) subject to
satisfaction of one or more of the conditions described in Section 9.01(b), at any time prior to the close of business on the Business Day immediately preceding December 15, 2021 under the circumstances and during the periods set forth in
Section 9.01(b), and (ii) on or after December 15, 2021 until the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial conversion rate of 3.0534 shares of Common
Stock (subject to adjustment as provided in this Article 9, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to the settlement provisions of Section 9.02, the “Conversion Obligation”).

 (b)    (i) Prior to the close of business on the Business Day immediately preceding December 15, 2021, a Holder
of Notes may surrender its Notes for conversion during the five Business Day period immediately after any five consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of
Notes, as determined following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than 98% of the product of the Last 

  
 31 








 
Reported Sale Price of the Common Stock and the Conversion Rate on such Trading Day, subject to compliance with the procedures and conditions described in this subsection (b)(i). The Company
shall provide written notice to the Bid Solicitation Agent of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading Price, along with appropriate contact information for
each. The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company shall have no
obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to determine the Trading Price) unless a Holder 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 Common Stock and the Conversion Rate. At such time, the Company shall instruct the Bid Solicitation Agent to (or, if the Company is acting
as Bid Solicitation Agent, the Company shall) determine the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is
greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If the Trading Price condition set forth above has been met on any Trading Day, the Company shall so notify the Holders,
the Trustee and the Conversion Agent (if other than the Trustee) in writing on such Trading Day, in accordance with Section 10.02 of the Base Indenture. If, at any time after the Trading Price condition set forth above has been met, the
Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such Trading Day, the Company shall promptly so notify the Holders of
the Notes, the Trustee and the Conversion Agent (if other than the Trustee), in accordance with Section 10.02 of the Base Indenture. If the Company does not, when it is required to, instruct the Bid Solicitation Agent to (or, if the Company is
acting as Bid Solicitation Agent, the Company does not) obtain bids, or if the Company instructs the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in the preceding sentence and
the Bid Solicitation Agent fails to make such determination, then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the
Conversion Rate on each Trading Day of such failure.
 (ii)    If, prior to the close of business on the
Business Day immediately preceding December 15, 2021, the Company elects to: 
 (A)    distribute to
all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder rights plan) entitling them, for a period of not more than 45 calendar days from the declaration date for such
distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the declaration date for such distribution; or 
 (B)    distribute to all or
substantially all holders of the Common Stock the Company’s assets, debt securities or rights to purchase securities of the 

  
 32 








 
Company, which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day
immediately preceding the declaration date for such distribution, 
 then, in either case, the Company shall notify all Holders of the Notes at least 30
Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution, in accordance with Section 10.02 of the Base Indenture. Once the Company has given such notice, Holders may
surrender their Notes for conversion at any time until the earlier of: 
  

	 	(1)	the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or distribution; and 


 

	 	(2)	the Company’s declaration that such issuance or distribution will not take place. 


(iii)    Prior to the close of business on the Business Day immediately preceding December 15, 2021,
if: 
 (A)    a transaction or event that constitutes a Fundamental Change occurs; or 

(B)    a transaction or event that constitutes a Make-Whole Fundamental Change occurs; or 

(C)    if the Company is a party to a consolidation, merger, combination, statutory or binding share
exchange or similar transaction involving the Company, pursuant to which the Common Stock would be converted into, or exchanged for, cash, securities or other property or assets, or any sale, conveyance, lease or other transfer or similar
transaction in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, 

the Notes may be surrendered by a Holder for conversion at any time from or after the date that is 30 Scheduled Trading Days prior to the anticipated
effective date of the transaction (or, if later, the Business Day after the Company gives notice of such transaction) until the close of business on the 35th Trading Day after the actual effective date of such transaction or, if such transaction
also constitutes a Fundamental Change, until the close of business on the Business Day immediately preceding the relevant Fundamental Change Purchase Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than
the Trustee) as promptly as practicable following the date the Company publicly announces such transaction; provided that the Company shall deliver such notice in no event later than the actual effective date. 

(iv)    Prior to the close of business on the Business Day immediately preceding December 15, 2021, a
Holder may surrender its Notes for conversion during any calendar quarter commencing after the calendar quarter ending on June 30, 2017 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least


  
 33 








 
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 at the beginning of each calendar quarter commencing after June 30, 2017 whether the Notes may be surrendered for conversion in accordance with
this clause (iv) and shall notify the Holders if the Notes become convertible in accordance with this clause (iv), within five Business Days of the Notes so becoming convertible, in accordance with Section 10.02 of the Base Indenture. 

Section 9.02    Conversion Procedure; Settlement Upon Conversion. 

(a)    Subject to this Section 9.02, Section 9.03(b) and Section 9.07(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 Common Stock (“Physical
Settlement”) or a combination of cash and shares of Common Stock (“Combination Settlement”), as set forth in this Section 9.02. 

(1)     All conversions occurring on or after December 15, 2021 shall be settled using the same
Settlement Method and the same relative proportion of cash and/or shares of Common Stock as all other conversions occurring on or after December 15, 2021. If the Company elects a Settlement Method for any conversions occurring on or after
December 15, 2021, the Company shall deliver notice to Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such Settlement Method the Company has selected no later than December 15, 2021. If the Company does not
timely elect a Settlement Method, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the
Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company has timely elected Combination Settlement in respect of any conversion, but fails to notify converting Holders through the Trustee of the Specified
Dollar Amount per $1,000 principal amount of Notes, the Specified Dollar Amount shall be deemed to be $1,000. 

(2)     Except for any conversions that occur on or after December 15, 2021, the Company shall use the
same Settlement Method (including the same relative proportion of cash and/or shares of Common Stock) for all conversions occurring on the same Conversion Date. Except for any conversions that occur on or after December 15, 2021, the Company
shall not have any obligation to use the same Settlement Method with respect to conversions that occur on different Conversion Dates. Prior to December 15, 2021, if the Company elects a Settlement Method, the Company shall deliver notice to
converting Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such Settlement Method the Company has selected no later than the close of business on the second Trading Day immediately following the relevant Conversion Date.
If the Company does not timely elect a Settlement Method in respect of a particular Conversion Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement with respect to that Conversion Date and the Company
shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. If the Company has


  
 34 








 
timely elected Combination Settlement in respect of any such conversion, but fails to notify the Conversion Agent of the Specified Dollar Amount per $1,000 principal amount of Notes, the
Specified Dollar Amount per $1,000 principal amount shall be deemed to be $1,000. 
 (3)     The cash,
shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of any conversion of Notes (the “Conversion 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 Common Stock equal to the Conversion Rate on the Conversion Date (plus cash in lieu of
any fractional share of 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 20 consecutive VWAP Trading Days during the applicable 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, if applicable, to the converting Holder in respect of each $1,000 principal amount of Notes being converted a Conversion Settlement Amount equal to the sum of
the Daily Settlement Amounts for each of the 20 consecutive VWAP Trading Days during the applicable Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion). 

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. 

(4)    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 applicable 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, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and, if
applicable, the amount of cash payable in lieu of fractional shares of Common Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination. 

  
 35 








 (b)    Subject to Section 9.02(e), to convert a Note as set forth above,
(i) in the case of a Global Note, the beneficial owner thereof shall comply with the Applicable Procedures for converting a beneficial interest in a Global Note and, if required, pay funds equal to interest payable on the next Interest Payment
Date to which such Holder is not entitled as set forth in Section 9.02(g) and (ii) in the case of a Physical Note, the Holder thereof shall: 

(1)    complete, manually sign and deliver an irrevocable notice or facsimile thereof to the Conversion
Agent and to the Trustee, if not the Conversion Agent, as set forth in the Form of Notice of Conversion (a “Notice of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes
to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered; 

(2)    surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate
endorsement and transfer documents), at the office of the Conversion Agent; 
 (3)    if required,
furnish appropriate endorsements and transfer documents; and 
 (4)    if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 9.02(g).
 The
Conversion Agent shall notify the Company of any conversion pursuant to this Article 9 on the Conversion Date for such conversion.
 No
Holder may surrender Notes for conversion if such Holder has also delivered a Fundamental Change Purchase Notice to the Company in respect of such Notes and not validly withdrawn such Fundamental Change Purchase Notice in accordance with
Section 10.02 (or, in the case of a Global Note, if such Holder has requested a repurchase of Notes pursuant to Section 10.01 but has not withdrawn such request pursuant to Section 10.02, in each case, in compliance with Applicable
Procedures). 
 If more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Settlement Amount
with respect to such Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. 

(c)    A Note shall be deemed to have been converted immediately prior to the close of business on the date (the
“Conversion Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Subject to Section 9.03(b) and Section 9.07(a), 

  
 36 








 
the Company shall pay or deliver, as the case may be, the Conversion Settlement Amount due in respect of the Conversion Obligation on: 

(1)    if the Company elects Physical Settlement, on the third Business Day immediately following the relevant Conversion
Date for any conversion occurring prior to the Regular Record Date immediately preceding the Maturity Date or on the Maturity Date, for any conversion occurring on or after the Regular Record Date immediately preceding the Maturity Date; or 

(2)    the third Business Day immediately following the last VWAP Trading Day of the applicable Observation Period, if the
Company elects Cash Settlement or if the Company elects or is deemed to elect Combination Settlement. 
 If any shares of 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 make a book-entry transfer through the Depositary to such Holder or such Holder’s nominee or
nominees, for the full number of shares of Common Stock to which such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. 

(d)    In case any 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 of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder of the Notes 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 of the Notes submits a Note for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on any issuance of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests any such shares of Common Stock to be issued in a name other than such Holder’s name, in which
case such Holder must pay that tax. The stock transfer agent or the Company, as the case may be, may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than such Holder’s name until the
Company 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 for the Depositary or its
nominee (if other than the Trustee) at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversion of
Notes effected through any Conversion Agent other than the Trustee. 
 (g)    Upon conversion, a Holder shall not
receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s delivery of the Conversion Settlement Amount with respect to any converted Note shall be deemed to satisfy in full its
obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued and unpaid interest, if 

  
 37 








 
any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are
converted after the close of business on a Regular Record Date, but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business on such Regular Record Date shall receive the
full amount of interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of
business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted (regardless of whether the converting Holder was a Holder of such Notes on the Regular Record
Date); provided that no such payment shall be required (1) for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Purchase Date that is after
a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (3) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note. For the avoidance of doubt, all
Holders of Notes on the Regular Record Date immediately preceding the Maturity Date shall receive and retain the full interest payment due on the Maturity Date regardless of whether such Holders’ Notes are converted following such Regular
Record Date. 
 (h)    The Person in whose name any shares of Common Stock shall be issuable upon conversion shall be
treated as 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 applicable Observation Period if the Company
elects or is deemed to elect 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 Conversion Settlement Amount due upon conversion and (b) in the case of a conversion between a Regular Record Date and the corresponding Interest Payment Date, the Holder of record as of the close of business on such Regular Record
Date shall have the right to receive the full amount of interest payable on such Interest Payment Date, in accordance with Section 9.02(g). 

(i)    The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay
cash in lieu of any fractional share of Common Stock issuable upon conversion 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
applicable Observation Period if the Company elects or is deemed to elect Combination Settlement. 

Section 9.03    Increased Conversion Rate Applicable to Certain Notes Surrendered for Conversion in Connection
with Make-Whole Fundamental Changes. (a) If the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder of the Notes elects to convert its Notes in connection with such Make-Whole Fundamental Change,
the Company shall, under the circumstances described below, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”), as described
below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion (or, with respect to Global Notes, the relevant notice of conversion in


  
 38 








 
accordance with Applicable Procedures) is received by the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to the close of business on the Business
Day immediately preceding the related Fundamental Change Purchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for subclause (A) of the proviso in clause (b) of the definition
thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change). 

(b)    Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change, the Company shall
satisfy the related Conversion Obligation in accordance with Section 9.02; provided, however, that if the consideration received by holders of the Common Stock in exchange for such 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 the Conversion Rate (including any adjustment for Additional Shares), multiplied by such Stock
Price. In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the third Business Day following the Conversion Date. 

The Company shall notify the Holders of Notes, the Trustee and the Conversion Agent (if other than the Trustee) in accordance with
Section 10.02 of the Base Indenture, of the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such Effective Date or publish the information on its website or through such other public medium as the
Company may use at that time no later than five Business Days after such Effective Date. 
 (c)    The number of
Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table in Section 9.03(e), based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the
“Effective Date”) and the price (the “Stock Price”) paid (or deemed to be paid) per share of Common Stock in the Make-Whole Fundamental Change. If the holders of Common Stock receive in exchange for their
Common Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the Stock Price shall be the average of the Last
Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change. 

(d)    The Stock Prices set forth in the column headings of the table in Section 9.03(e) shall be adjusted as of
any date on which the Conversion Rate is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately
prior to the adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares set forth in the table in Section 9.03(e) shall be adjusted in the
same manner and at the same time as the Conversion Rate as set forth in Section 9.04. 

  
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 (e)    The following table sets forth the number of Additional Shares to be
added to the Conversion Rate per $1,000 principal amount of Notes pursuant to this Section 9.03: 
  

																																													
	 	  	Stock Price	 
	 Effective Date
	  	$262.00	 	  	$275.00	 	  	$300.00	 	  	$327.50	 	  	$350.00	 	  	$400.00	 	  	$450.00	 	  	$500.00	 	  	$550.00	 	  	$600.00	 	  	$650.00	 
	 March 22, 2017
	  	 	0.7633	 	  	 	0.7464	 	  	 	0.5875	 	  	 	0.4507	 	  	 	0.3615	 	  	 	0.2162	 	  	 	0.1221	 	  	 	0.0621	 	  	 	0.0255	 	  	 	0.0055	 	  	 	0.0000	 
	 March 15, 2018
	  	 	0.7633	 	  	 	0.7430	 	  	 	0.5801	 	  	 	0.4407	 	  	 	0.3505	 	  	 	0.2050	 	  	 	0.1122	 	  	 	0.0542	 	  	 	0.0200	 	  	 	0.0028	 	  	 	0.0000	 
	 March 15, 2019
	  	 	0.7633	 	  	 	0.7415	 	  	 	0.5721	 	  	 	0.4286	 	  	 	0.3366	 	  	 	0.1904	 	  	 	0.0995	 	  	 	0.0443	 	  	 	0.0133	 	  	 	0.0002	 	  	 	0.0000	 
	 March 15, 2020
	  	 	0.7633	 	  	 	0.7322	 	  	 	0.5535	 	  	 	0.4043	 	  	 	0.3103	 	  	 	0.1650	 	  	 	0.0788	 	  	 	0.0297	 	  	 	0.0052	 	  	 	0.0000	 	  	 	0.0000	 
	 March 15, 2021
	  	 	0.7633	 	  	 	0.6937	 	  	 	0.4998	 	  	 	0.3431	 	  	 	0.2481	 	  	 	0.1113	 	  	 	0.0401	 	  	 	0.0073	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 
	 March 15, 2022
	  	 	0.7633	 	  	 	0.5829	 	  	 	0.2799	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 	  	 	0.0000	 

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

(i)    If the Stock Price is between two Stock Prices in the table or the Effective Date is between two
Effective Dates in the table, the number of Additional Shares 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
based on a 365-day year, as applicable. 
 (ii)    If the Stock
Price is greater than $650.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column headings of the table above pursuant to Section 9.03(d)), no Additional Shares shall be added to the Conversion Rate. 

(iii)    If the Stock Price is less than $262.00 per share (subject to adjustment in the same manner as the
Stock Prices set forth in the column headings of the table above pursuant to Section 9.03(d)), 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 3.8167 shares of Common Stock, subject to
adjustment in the same manner as the Conversion Rate pursuant to Section 9.04. 
 (f)    Nothing in this
Section 9.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 9.04 in respect of a Make-Whole Fundamental Change. 

Section 9.04    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), as a result of
holding the Notes, and contemporaneously with the holders of the Common Stock, in any of the transactions described in this Section 9.04, as if such Holder of Notes held a number of shares of Common Stock equal to the Conversion Rate,
multiplied by the principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes. 

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

 

													
		 	CR1	 	=	 	CR0	 	 × 	 	OS1	 	
		 	 	 	 	 	OS0	 	

 where, 
  

					
	CR0	  	=	  	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective
Date of such share split or share combination, as applicable;
			
	CR1	  	=	  	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date, as applicable;
			
	OS0	  	=	  	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date, as applicable; and
			
	OS1	  	=	  	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

 Any adjustment made under this Section 9.04(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 9.04(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not so split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as
of the date the Board of Directors determines not to pay such dividend or distribution or to effect such share split or share combination, to the Conversion Rate that would then be in effect if such dividend or distribution or share split or share
combination had not been declared. 
 (b)    If the Company distributes to all or substantially all holders of its
Common Stock any rights, options or warrants (other than pursuant to a stockholder rights plan, so long as such rights have not separated from the shares of Common Stock) entitling them, for a period of not more than 45 calendar days after the
declaration date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the declaration date of such distribution, the Conversion Rate shall be increased based on the following formula: 
  

													
		 	CR1	 	=	 	CR0	 	 × 	 	(OS0 + X)	 	
		 	 	 	 	 	(OS0 + Y)	 	


  
 41 








 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;
			
	OS0	  	=	  	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
			
	X	  	=	  	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
			
	Y	  	=	  	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive
Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution of such rights, options or warrants.

 Any increase made under this Section 9.04(b) shall be made successively whenever any such rights, options or
warrants are distributed and shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. To the extent that shares of Common Stock are not delivered after
the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, or if no such rights, options or warrants are exercised prior to their expiration, the Conversion
Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not occurred. 
 For the purpose of this
Section 9.04(b) and for the purpose of Section 9.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Last
Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash,
to be determined by the 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 Common Stock, excluding: 

(i)    dividends or distributions as to which an adjustment was effected pursuant to
Section 9.04(a) or Section 9.04(b); 

  
 42 








 (ii)    dividends or distributions paid exclusively in cash
as to which an adjustment was effected pursuant to Section 9.04(d);
 (iii)    distributions of
Reference Property in a transaction described in Section 9.07; 
 (iv)    except as described below,
rights issued pursuant to a stockholder rights plan of the Company; and 
 (v)    Spin-Offs as to which
the provisions set forth below in this Section 9.04(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 of the Company, the “Distributed Property”), then the Conversion Rate shall be increased based on the following
formula: 
  

													
		 	CR1	 	=	 	CR0	 	 × 	 	SP0	 	
		 	 	 	 	 	(SP0 – FMV)	 	

 where, 
  

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

 Any increase made under the portion of this Section 9.04(c) above shall become effective immediately after the open
of business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such
distribution had not been declared.
 Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as
holders of the Common Stock, without having to convert its Notes, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution.

  
 43 








 If the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of
this Section 9.04(c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing “SP0”. 
 With respect to an adjustment pursuant to this
Section 9.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of
the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the
following formula: 
  

													
		 	CR1	 	=	 	CR0	 	 × 	 	(FMV0 + MP0)	  	
		 	 	 	 	 	MP0	  	

 where, 
  

					
	CR0	  	=	  	the Conversion Rate in effect immediately prior to the end of the Valuation Period (as defined below);
			
	CR1	  	=	  	the Conversion Rate in effect immediately after the Valuation Period;
			
	FMV0	  	=	  	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined by reference to the definition of “Last
Reported Sale Price” as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend
Date of the Spin-Off (the “Valuation Period”); provided that if there is no Last Reported Sale Price of the Capital Stock or similar equity interest distributed to holders of the Common
Stock on such Ex-Dividend Date, the “Valuation Period” shall be the first 10 consecutive Trading Day period after, and including, the first date such Last Reported Sale Price is available;
and
			
	MP0	  	=	  	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.

 The adjustment to the Conversion Rate under the preceding paragraph shall be determined on the last Trading
Day of the Valuation Period but shall be given effect at the open of business on the Ex-Dividend Date for such Spin-Off. Notwithstanding the foregoing, in respect of any
conversion during the Valuation Period, references in the portion of this Section 9.04(c) related to Spin-Offs with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between
the Ex-Dividend Date of such Spin-Off and 

  
 44 








 
the Conversion Date in determining the Conversion Rate. If the Ex-Dividend Date for the Spin-Off is less than 10
Trading Days prior to, and including, the end of the Observation Period in respect of any conversion of Notes, references in the portion of this Section 9.04(c) related to Spin-Offs with respect to 10 Trading Days shall be deemed to be
replaced, solely in respect of that conversion of Notes, 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 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 determines not to consummate such Spin-Off. 

For purposes of this Section 9.04(c) (and subject in all respects to Section 9.11), rights, options or warrants distributed by
the Company to all holders of its Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including shares of Common Stock (either initially or under certain circumstances), which rights, options or
warrants, until the occurrence of a specified event or events (“Trigger Event”): 
 (i)    are deemed
to be transferred with such shares of Common Stock; 
 (ii)    are not exercisable; and 

(iii)    are also issued in respect of future issuances of the Common Stock, 

shall be deemed not to have been distributed for purposes of this Section 9.04(c) (and no adjustment to the Conversion Rate under this
Section 9.04(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 9.04(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Supplemental 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 9.04(c) was made: 

(1)    in the case of any such rights, options or warrants that shall all have been redeemed or purchased
without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be
readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or 

  
 45 








 
purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all
holders of Common Stock as of the date of such redemption or purchase; and 
 (2)    in the case of such
rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued. 

For purposes of Section 9.04(a), Section 9.04(b) and this Section 9.04(c), if any dividend or distribution to which this
Section 9.04(c) is applicable also includes one or both of: 
 (A)     a dividend or distribution of shares of
Common Stock to which Section 9.04(a) is applicable (the “Clause A Distribution”); or 

(B)     a dividend or distribution of rights, options or warrants to which Section 9.04(b) is applicable (the
“Clause B Distribution”), 
 then: 

(1)    such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution,
shall be deemed to be a dividend or distribution to which this Section 9.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 9.04(c) with respect to such
Clause C Distribution shall then be made; and 
 (2)    the Clause A Distribution and Clause B
Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 9.04(a) and Section 9.04(b) with respect thereto shall then be made, except that, if determined
by the Company: 
 (I)    the “Ex-Dividend Date” of the
Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution; and 

(II)    any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be
deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 9.04(a) or “outstanding immediately
prior to the open of business on such Ex-Dividend Date” within the meaning of Section 9.04(b). 

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

													
		 	CR1	 	=	 	CR0	 	× 	 	SP0	 	
		 	 	 	 	 	(SP0 - C)	 	


  
 46 








 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 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 of Common Stock the Company distributes to all or substantially all holders of Common Stock.

 Any increase to the Conversion Rate pursuant to this Section 9.04(d) shall become effective immediately after the
open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of
Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms
as holders of shares of Common Stock without having to convert its Notes, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution. 
 (e)    If the Company or
any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale
Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: 

 

													
		 	CR1	 	=	 	CR0	 	× 	 	    AC + (SP1 × 
OS1)      	  	
		 	 	 	 	 	(OS0 × SP1)	  	

 where, 
  

					
	CR0	  	=	  	the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires (the “Expiration Date”);
			
	CR1	  	=	  	the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date;


  
 47 









					
	AC	  	=	  	the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
			
	OS0	  	=	  	the number of shares of Common Stock outstanding immediately prior to the consummation of the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer;
			
	OS1	  	=	  	the number of shares of Common Stock outstanding immediately after the consummation of the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer; and
			
	SP1	  	=	  	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.

 The increase to the Conversion Rate under this Section 9.04(e) shall be determined at the close of business on the
10th Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date but shall be given effect at the open of business on the Trading Day next succeeding the Expiration Date. Notwithstanding the foregoing, in
respect of any conversion within the 10 Trading Days immediately following, and including, the Trading Day next succeeding any Expiration Date, references in this Section 9.04(e) with respect to 10 Trading Days 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. In addition, if the Trading Day next succeeding the Expiration Date is less than 10 Trading Days
prior to, and including, the end of the Observation Period in respect of any conversion of Notes, references in this Section 9.04(e) to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion of Notes, with
such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, and including, the last Trading Day of such Observation Period. For the avoidance of doubt, no adjustment under this
Section 9.04(e) shall be made if such adjustment would result in a decrease in the Conversion Rate. 
 In the event that the Company or one of its
Subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender offer 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 offer or exchange offer had not been made. 

(f)    Notwithstanding this Section 9.04 or any other provision of the Indenture or the Notes, if a Conversion Rate
adjustment becomes effective on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record
Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 9.02(h) based on an adjusted Conversion 

  
 48 








 
Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section 9.04, the Conversion Rate adjustment
relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted
basis and participate in the related dividend, distribution or other event giving rise to such adjustment. 

(g)    Notwithstanding any other provision of the Indenture or the Notes, in no event will the Conversion Rate per $1,000
principal amount of the Notes exceed 3.8167 shares of Common Stock, subject to adjustment in the same manner as the Conversion Rate as set forth in this Section 9.04. 

(h)    In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this
Section 9.04, and to the extent permitted by applicable law and subject to the applicable rules of the NASDAQ Global Select Market or any other securities exchange on which securities of the Company are then listed, (i) the Company
may increase the Conversion Rate of the Notes 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 and (ii) the Company may (but is not
required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares of Common
Stock) or similar event. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to the Holder of each Note at its last address appearing on the Note Register, the Trustee and the Conversion Agent
(if other than the Trustee) 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)    All calculations and other determinations under this Article 9 shall be made by the Company and all
calculations of the Conversion Rate shall be made to the nearest one-ten thousandth (1/10,000th) of a share. No adjustment in the Conversion Rate shall be required unless such adjustment would require a change
of at least 1% in the Conversion Rate; provided, however, that the Company shall carry forward any adjustments which would be required to be made but for this Section 9.04(i), take such carried-forward adjustments into account in any
subsequent adjustment, and make such carried-forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (x) annually on the anniversary of the date of original issuance of the Notes and (y) otherwise (1) upon
conversion of any Notes or (2) prior to any Fundamental Change Purchase Date, unless such adjustment has already been made. 

(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 may assume without inquiry that the last Conversion Rate of which it has knowledge is
still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion Rate to each Holder at its last address appearing on the Note Register. Failure to deliver such notice shall not affect the legality or validity of any such adjustment. 

  
 49 








 (k)    For purposes of this Section 9.04, the number of shares of 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 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 Common Stock. 

Section 9.05    Adjustments of Prices. Whenever any provision of the 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, if applicable, the period for determining the Stock Price for
purposes of a Make-Whole Fundamental Change), the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate
where the Ex-Dividend Date, Effective Date or Expiration Date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion
Values or the Daily Settlement Amounts are to be calculated. 
 Section 9.06    Shares To Be Fully
Reserved. The Company shall reserve, out of its authorized but unissued shares that are not reserved for other purposes, sufficient shares of 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 of the Notes 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). 

Section 9.07    Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. 

(a)    In the case of: 

(i)    any recapitalization, reclassification or change of the Common Stock (other than changes resulting
from a subdivision or combination); 
 (ii)    any consolidation, merger, combination, statutory or
binding share exchange or similar transaction involving the Company; or 
 (iii)    any sale, conveyance,
lease or other transfer or similar transaction to a third party of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, 

in each case, as a result of which the Common Stock would be converted into, or exchanged for, cash, securities or other property or assets (any such event, a
“Share Exchange Event,” and any such cash, securities or other property or assets, the “Reference Property,” and the amount of Reference Property that a holder of one share of Common Stock immediately prior to such
Share Exchange Event would have been entitled to receive upon the occurrence of such Share 

  
 50 








 
Exchange Event, a “unit of Reference Property”), then the Company or the successor or purchasing company, as the case may be, shall execute with the Trustee, without the consent
of the Holders of Notes, a supplemental indenture providing that, at and after the effective time of such Share Exchange Event, a Holder’s right to convert a Note into cash and, if applicable, shares of Common Stock (unless the Company elects
to deliver cash in lieu of all or a portion of such shares) shall be changed into a right to convert a Note into cash and, if applicable, units of Reference Property (unless the obligor elects to deliver cash in lieu of all or a portion of such
units of Reference Property); provided, however, that at and after the effective time of the Share Exchange Event: 

(A)    the Company shall continue to have the right to determine the form of consideration to be paid or
delivered, as the case may be, upon conversion of Notes in accordance with Section 9.02; 

(B)    any amount payable in cash upon conversion of the Notes in accordance with Section 9.02 shall
continue to be payable in cash; 
 (C)    any shares of Common Stock that the Company would have been
required to deliver upon conversion of the Notes in accordance with Section 9.02 (subject to the Company’s right to elect to deliver cash in lieu of all or a portion of such shares) shall instead be deliverable in units of Reference
Property (subject to the obligor’s right to elect to deliver cash in lieu of all or a portion of such units of Reference Property); and 

(D)    the Daily VWAP shall be calculated based on the value of a unit of Reference Property; 

provided, however, if the holders 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 9.03), multiplied by the price paid per share of Common Stock in such Share Exchange Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the third
Business Day immediately following the Conversion Date. 
 Such supplemental indenture described above shall provide for anti-dilution and
other adjustments that shall be as nearly equivalent as possible to the adjustments provided for in this Article 9. If the Reference Property in respect of any Share Exchange Event includes shares of stock, securities or other property or
assets of a company other than the Company or the successor or purchasing corporation, as the case may be, in such Share Exchange Event, then such other company shall also execute such supplemental indenture, and such supplemental indenture shall
contain such additional provisions to protect the interests of the Holders of Notes, including the right of Holders of Notes to require the Company to purchase their Notes upon a Fundamental Change pursuant to Section 10.01, as the Board of
Directors reasonably considers necessary by reason of the foregoing. 

  
 51 








 If the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the
right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then: 

(i)    the amount and kind of Reference Property into which the Notes will be convertible shall be deemed
to be (A) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (B) if no holders of the shares of Common Stock affirmatively make such an
election, the types and amounts of consideration actually received by the holders of Common Stock; and 

(ii)    the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to
the consideration referred to in clause (i) attributable to one share of Common Stock.
 The Company shall notify Holders, the Trustee and the
Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. 

(b)    In the event the Company shall execute a supplemental indenture pursuant to Section 9.07(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 property or asset that will comprise a unit of Reference Property after any such Share Exchange Event, any
adjustment to be made with respect thereto and that all conditions precedent have been complied with. In addition, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) and issue a press release containing
such information or publish such information on its website or through such other public medium as the Company may use. The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at its address
appearing on the Note Register, within 20 Business Days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. 

(c)    The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this
Section 9.07. None of the foregoing provisions shall affect the right of a Holder of the Notes to convert its Notes into cash and, if applicable, shares of Common Stock (subject to the Company’s right to elect to deliver cash in lieu
of all or a portion of such shares), as set forth in Section 9.01 and Section 9.02 prior to the effective date of such Share Exchange Event. 

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

Section 9.08    Certain Covenants. (a) The Company covenants that all shares of Common Stock issued
upon conversion of Notes, if any, will be fully paid and non-assessable by the Company and free from preemptive rights and all taxes, liens and charges with respect to the issue thereof. 

(b)    The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes
hereunder require registration with or approval of any 

  
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governmental authority under any federal or state law before such shares may be validly issued upon conversion (other than solely as a result of the status of the converting Holder as an
affiliate of the Company), the Company will secure such registration or approval, as the case may be. 
 (c)    The
Company further covenants that, if at any time the Common Stock shall be listed on any national securities exchange or automated quotation system, the Company shall list and keep listed, so long as the Common Stock shall be so listed on such
exchange or automated quotation system, any Common Stock issuable upon conversion of the Notes. 

Section 9.09    Responsibility of Trustee. The Trustee and the Conversion Agent (if other than the
Trustee) shall not at any time be under any duty or responsibility to any Holder to (i) perform any calculations or make any determinations under this Article 9 or (ii) 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 the Conversion Agent (if other than the Trustee) shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and the Conversion Agent (if other than the Trustee) make no representations with respect
thereto. Neither the Trustee nor the Conversion Agent (if other than the Trustee) shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property
or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor the Conversion Agent (if other than the Trustee) shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 9.07 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 9.07 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.02 of the Base Indenture, 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 (if other than the Trustee) shall be
responsible for determining whether any event contemplated by Section 9.01(b) has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company has delivered to the Trustee and the Conversion Agent
(if other than the Trustee) the notices referred to in Section 9.01(b) with respect to the commencement or termination of such conversion rights, on which notices the Trustee and the Conversion Agent (if other than the Trustee) may
conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Conversion Agent (if other than the Trustee) immediately after the occurrence of any such event or at such other times as shall be provided for in
Section 9.01(b). The rights, benefits and privileges of the Trustee set forth in the Base Indenture shall be applicable to the Conversion Agent (if other than the Trustee), and the provisions set forth in Section 7.01(a), (b) and
(c) of the Base Indenture relating to the Trustee shall apply to the Conversion Agent (if other than the Trustee). 

  
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 Section 9.10    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 9.04 or Section 9.11; 
 (b)    Share Exchange Event; or 

(c)    voluntary or involuntary dissolution, liquidation or winding-up of the
Company or any of its Subsidiaries; 
 then, in each case (unless notice of such event is otherwise required pursuant to another provision of the
Indenture), the Company shall cause to be filed with the Trustee and the Conversion Agent (if other than the Trustee) and to be mailed to each Holder at its address appearing on the Note Register, concurrently with the public disclosure thereof, a
notice stating (i) the date on which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be
determined for the purposes of such action by the Company or one of its Subsidiaries, or (ii) the date on which such Share Exchange Event, dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Share Exchange Event, dissolution, liquidation
or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Share Exchange Event, dissolution,
liquidation or winding-up. 
 Section 9.11    Stockholder Rights
Plans. If the Company has a rights plan in effect upon conversion of the Notes into Common Stock, if any, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any,
and any certificate representing the share of 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 shareholder rights plan, as the same may be amended from time to time.
If however, prior to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable shareholder rights plan, the Conversion Rate shall be adjusted at the time of separation as
if the Company distributed to all holders of the Common Stock Distributed Property as provided in Section 9.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. 

Section 9.12    No Adjustments. (a) Except as provided in Section 9.02, the Conversion Rate shall
not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or the right to purchase Common Stock or any such convertible or exchangeable security, and, for the avoidance of doubt, no
adjustment in the Conversion Rate shall be required: 
  

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


  
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	 	(2)	for ordinary course of business stock repurchases that are not tender offers referred to in Section 9.04(e), including structured or derivative transactions, pursuant to a stock repurchase program approved by the Board
of Directors; 

  

	 	(3)	upon the issuance of shares of Common Stock or options, warrants or rights to purchase shares of Common Stock 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; 

  

	 	(4)	upon the issuance of shares of Common Stock pursuant to any option, warrant or right or exercisable, exchangeable or convertible security not described in clause (3) above and outstanding as of the date the Notes
were first issued; 

  

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

  

	 	(6)	for accrued and unpaid interest. 

 (b)    To the extent that the Securities
become convertible into the right to receive only cash in accordance with the provision of Section 9.07, no adjustment need be made thereafter as to the amount of cash to be received. 

Section 9.13    Exchange in Lieu of Conversion.

(a)    When a Holder surrenders its Notes for conversion, the Company may, at its election, direct the Conversion Agent to
surrender, on or prior to the second Business Day following the relevant Conversion Date, such Notes to a financial institution designated by the Company (the “Designated Institution”) for exchange in lieu of conversion. In order to
accept any Notes surrendered for conversion for exchange in lieu of conversion, the Designated Institution must agree to timely deliver, in exchange for such Notes, the cash, shares of Common Stock or combination of cash and shares of Common Stock,
at the Company’s election, that would otherwise be due upon conversion as described in Section 9.02 above and in respect of which the Company has notified converting Holders. If the Company makes the election described above, the Company
shall, by the close of business on the second Business Day following the relevant Conversion Date, notify the Holder surrendering Notes for conversion that it has made such election. In addition, the Company shall concurrently notify the Designated
Institution of the relevant deadline for delivery of the consideration due upon conversion. Any Notes exchanged by the Designated Institution will remain outstanding. 

(b)    If the Designated Institution agrees to accept any Notes for exchange but does not timely deliver the related
consideration due upon conversion to the Conversion Agent, or if the Designated Institution does not accept such Notes for exchange, the Company shall, within the time period specified in Section 9.02(c), convert such Notes into cash, shares of
Common Stock or combination of cash and shares of Common Stock, at the Company’s election, in accordance with the provisions of Section 9.02. 

  
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 (c)    For the avoidance of doubt, in no event will the Company’s
designation of a Designated Institution pursuant to this Section 9.13 require the Designated Institution to accept any Notes for exchange. 

ARTICLE 10 
 REPURCHASE OF NOTES AT
OPTION OF HOLDERS 
 Section 10.01    Purchase at Option of Holders Upon a Fundamental
Change. (a) If a Fundamental Change occurs at any time, each Holder of the Notes shall have the right, at such Holder’s option, to require the Company to purchase for cash all of such Holder’s Notes, or any portion of the
principal thereof that is equal to $1,000 principal amount or an integral multiple of $1,000 principal amount, on the date (the “Fundamental Change Purchase Date”) specified by the Company that is not less than 20 nor more than 35
Business Days following the date of the Fundamental Change Company Notice (or, if the Company fails to specify a Fundamental Change Purchase Date, the 35th Business Day following the date of the Fundamental Change Company Notice, without prejudice
to any rights or remedies Holders may have on account of such failure) at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to, but not including, the Fundamental Change Purchase
Date (the “Fundamental Change Purchase Price”); provided that if the Fundamental Change Purchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates,
then the Company shall instead pay the full amount of accrued and unpaid interest to the Holder of record on such Regular Record Date, and the Fundamental Change Purchase Price shall be equal to 100% of the principal amount of Notes to be purchased
pursuant to this Article 10. 
 (b)    Purchases of Notes under this Section 10.01 shall be made, at the
option of the Holder thereof, upon: 
 (i)    delivery to the Paying Agent (and the Trustee, if not the
Paying Agent) by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in
compliance with the Applicable Procedures, 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 Purchase Date; and 

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

  
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 The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state: 

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

 (ii)    the portion of the principal amount of Notes to be purchased, which must be $1,000 or an
integral multiple thereof; and 
 (iii)    that the Notes are to be purchased by the Company pursuant to
the applicable provisions of the Notes and the Indenture; 
 provided, however, that if the Notes are Global Notes, the Fundamental Change
Purchase Notice must comply with the Applicable Procedures. 
 Notwithstanding anything herein to the contrary, any Holder delivering to the
Paying Agent the Fundamental Change Purchase Notice contemplated by this Section 10.01 shall have the right to withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 10.02. 

The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice or written notice of
withdrawal thereof. 
 (c)    On or before the 20th Business Day after the occurrence of a Fundamental Change, the
Company shall provide to all Holders of the Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence of the Fundamental
Change and of the repurchase right at the option of the Holders of the Notes arising as a result thereof. Each Fundamental Change Company Notice shall specify: 

(i)    the events causing the Fundamental Change; 

(ii)    the effective date of the Fundamental Change; 

(iii)    the last date on which a Holder may exercise the repurchase right pursuant to this
Article 10; 
 (iv)    the Fundamental Change Purchase Price; 

(v)    the Fundamental Change Purchase Date; 

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

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

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

  
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 (ix)    the procedures that Holders must follow to require
the Company to repurchase their Notes; and 
 (x)    any other information that the Company shall
reasonably determine is appropriate to include therein. 
 Notwithstanding the foregoing, the Company will not be required to repurchase, or
to make an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above and
such third party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an offer made by the Company as set forth above. 

At the Company’s request, the Trustee shall give such notice in the Company’s name and at the Company’s expense;
provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company. 

Such notice shall be by first class mail to the Trustee, to the Paying Agent and to each Holder of the Notes at its address shown in the Note
Register (and to beneficial owners as required by applicable law) or, in the case of Global Notes, in accordance with Applicable Procedures. Simultaneously with providing such notice, the Company shall issue a press release and publish a notice
containing the information set forth in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that time. 

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 10.01. 

(d)    Notwithstanding the foregoing, no Notes may be purchased 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 (other than in connection with a default in the payment of the Fundamental Change Purchase Price), and such acceleration has not been rescinded, on or prior to such
date. The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (other than in connection with a default in the payment of the Fundamental Change Purchase Price), or
any instructions for book-entry transfer of the Notes in compliance with the Applicable Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Purchase Notice with respect
thereto shall be deemed to have been withdrawn. 
 Section 10.02    Withdrawal of Fundamental Change Purchase
Notice. A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 10.02 at any
time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, specifying: 

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

  
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 (ii)    if Physical Notes have been issued, the certificate
number of the Note in respect of which such notice of withdrawal is being submitted; and 
 (iii)    the
principal amount, if any, of such Note that remains subject to the original Fundamental Change Purchase Notice, which portion must be $1,000 aggregate principal amount or an integral multiple thereof; 

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

Section 10.03    Deposit of Fundamental Change Purchase Price. (a) The Company shall 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 2.05 of the Base Indenture) on or prior to 11:00 a.m., New York
City time, on the Fundamental Change Purchase Date an amount of money sufficient to purchase all of the Notes to be purchased at the appropriate Fundamental Change Purchase Price. Subject to receipt of funds by the Trustee (or other Paying
Agent appointed by the Company), payment for Notes surrendered for purchase (and not withdrawn prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date) will be made on the later of (i) the
Fundamental Change Purchase Date (provided that the Holder has satisfied the conditions in Section 10.01) and (ii) the time of book-entry transfer or the delivery of such Notes to the Trustee (or other Paying Agent appointed by the
Company) by the Holder thereof in the manner required by Section 10.01, 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 Purchase Price. 
 (b)    If by 11:00 a.m., New York City
time, on the Fundamental Change Purchase Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to make payment of the Fundamental Change Purchase Price on all the Notes or portions thereof that are to be purchased
on such Fundamental Change Purchase Date, then, with respect to the Notes that have been properly surrendered for purchase and not validly withdrawn: 

(i)    such Notes shall cease to be outstanding and 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); and 

(ii)    all other rights of the Holders of such Notes shall terminate (other than (x) the right to
receive the Fundamental Change Purchase Price and (y) if the Fundamental Change Purchase Date falls after a Regular Record Date but on or prior to the related Interest Payment Date, the right of the Holder of record on such Regular Record Date
to receive the related interest payment). 

  
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 (c)    Upon surrender of a Note that is to be purchased in part pursuant to
Section 10.01, 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 10.04    Covenant to Comply with Applicable Laws Upon Purchase of Notes. In
connection with any purchase offer pursuant to a Fundamental Change Company Notice, the Company shall, if required: 

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

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

(c)    otherwise comply with all federal and state securities laws in connection with any offer by the Company to purchase
the Notes; 
 in each case, so as to permit the rights and obligations under this Article 10 to be exercised in the time and in the manner specified in
this Article 10. 
 ARTICLE 11 

NO REDEMPTION 

Section 11.01    Applicability of Articles III and XI of the Base Indenture; No Redemption. Neither
Article III nor Article XI of the Base Indenture shall apply to the Notes. The Notes shall not be redeemable by the Company prior to the Maturity Date, and no sinking fund is provided for the Notes. 

ARTICLE 12 
 CONSOLIDATION, MERGER
AND SALE OF ASSETS 
 Section 12.01    Applicability of Article V of the Base Indenture. Article V
of the Base Indenture shall not apply to the Notes. Instead the provisions set forth in this Article 12 shall, with respect to the Notes, supersede in their entirety Article V of the Base Indenture, and all references in the Base
Indenture to Article V thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 12 or the applicable provisions set forth in this Article 12, respectively.

 Section 12.02    When Company May Merge, Etc. The Company shall not consolidate with or
merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any Person (a “Successor Person”) unless: 

(a)    the Company is the surviving corporation or the Successor Person (if other than the Company) is a corporation
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Company’s obligations under the Notes and the Indenture; 

  
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 (b)    immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing under the Indenture; and 

(c)    the Company shall have delivered to the Trustee prior to the consummation of the proposed transaction an
Officers’ Certificate and an Opinion of Counsel, each stating that the proposed transaction and any related supplemental indenture comply with the Indenture. 

For purposes of this Section 12.02 only, for the avoidance of doubt, notwithstanding the foregoing, the sale, conveyance or transfer of
intellectual property and similar or related assets and the Company’s equity ownership interests in foreign Subsidiaries to one or more of the Company’s Subsidiaries, in each case, in connection with the Company’s global tax
optimization strategies in conjunction with business operations will not be considered “all or substantially all of the Company’s properties and assets.” 

Section 12.03    Successor Person Substituted. Upon any such consolidation, merger, conveyance, transfer
or lease in accordance with Section 12.02 in which there is a Successor Person, such Successor Person shall succeed to, and may exercise every right and power of, the Company under the Notes and the Indenture with the same effect as if such
Successor Person had been named as the Company therein and herein, and the Company shall be discharged from its obligations under the Notes and the Indenture except in the case of any such lease. 

ARTICLE 13 
 MISCELLANEOUS
PROVISIONS 
 Section 13.01    Investments. All cash received by the Trustee or the Paying Agent
(if other than the Trustee) shall be placed in a non-interest bearing trust account; provided, that the Trustee and the Paying Agent shall be entitled to invest funds received in advance of any due date
in the U.S. Bank Money Market Deposit Account or any substantially similar successor account, any earnings on which shall be for the account of the Company. 

Section 13.02    Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in the Indenture and the Notes shall bind its successors and assigns whether so expressed or not. 

Section 13.03    Official Acts by Successor Corporation. Any act or proceeding by any provision of the
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 that shall at the
time be the lawful sole successor of the Company. 
 Section 13.04    Governing Law;
Jurisdiction. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. 

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

The Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Supplemental Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of
Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient
forum. 
 Section 13.05    Legal Holidays. For the avoidance of doubt, the Maturity Date, any Interest
Payment Date, any Fundamental Change Purchase Date or Conversion Date shall be considered a “payment date” within the meaning of Section 10.07 of the Base Indenture. 

Section 13.06    No Security Interest Created. Nothing in the 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 13.07    Benefits of Indenture. Nothing in the Indenture or in the Notes, expressed or implied,
shall give to any Person, other than the Holders (or, with respect to the last paragraph of Section 2.05(d), beneficial owners of the Notes), the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Registrar
and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under the Indenture. 

Section 13.08    Table of Contents, Headings, Etc. The table of contents and headings of the
Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof. 

Section 13.09    Multiple Originals. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy of this Supplemental Indenture is enough to prove this Supplemental Indenture. The exchange of copies of this
Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. 

  
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 Section 13.10    Severability. If any provision in this
Supplemental Indenture or in the Notes is deemed invalid, illegal or unenforceable, it shall not affect the validity, legality or enforceability of any other provision set forth herein or therein, as applicable, or of the Indenture as a whole. 

Section 13.11    Calculations. Except as provided with respect to the role of the Trustee as Bid
Solicitation Agent herein, the Company shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, Daily
VWAPs, Daily Conversion Values, Daily Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s
calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively
upon the accuracy of the Company’s calculations without independent verification. The Trustee shall forward the Company’s calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.

 Section 13.12    Miscellaneous Amendments Under Base Indenture; Ratification of Base Indenture. 

(a)    For the avoidance of doubt, the Notes shall not be “Bearer Securities” within the meaning of the Base
Indenture. 
 (b)    Except as amended hereby with respect to the Notes, the Base Indenture, as amended and supplemented
by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. 

Section 13.13    Trustee’s Disclaimer. The Trustee shall not be responsible in any manner for or in
respect of the validity or sufficiency of this Supplemental Indenture or the Notes issued hereunder or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company. 

[Remainder of page intentionally left blank] 

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

					
	TESLA, INC.
		
	By:	 	 /s/ Deepak Ahuja

		 	Name:	 	Deepak Ahuja
		 	Title:	 	Chief Financial Officer


  

					
	 U.S. BANK NATIONAL ASSOCIATION, as Trustee

		
	By:	 	 /s/ Paula Oswald

		 	Name:	 	Paula Oswald
		 	Title:	 	Vice President



  
 [Fourth Supplemental
Indenture Signature Page] 








 EXHIBIT A 

[FORM OF FACE OF NOTE] 

[INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE] 

[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH A SUCCESSOR DEPOSITARY.] 







 TESLA, INC. 

2.375% Convertible Senior Note due 2022 
  

			
	  No. [            ]	  	[Initially](1) $[            ]
	CUSIP No. [                    ]	  	
	ISIN No. [                    ]	  	

 Tesla, Inc. (f/k/a Tesla Motors, Inc.), a corporation duly organized and validly existing under the laws of
the State of Delaware (the “Company,” which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.](2) [                    ](3), or
registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto](4) [of $[        ]](5), which amount, taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $850,000,000 (or $977,500,000 if the Underwriters
exercise their option to purchase additional Notes in full in accordance with the Underwriting Agreement) in aggregate at any time [, in accordance with the rules and procedures of the
Depositary](6). 
 This Note shall bear cash interest at the rate of 2.375% per year
from March 22, 2017, or from the most recent date on which interest had been paid or duly provided for to, but excluding, the next scheduled Interest Payment Date until March 15, 2022. Interest is payable semi-annually in arrears on
each March 15 and September 15, commencing on September 15, 2017, to Holders of record of the Notes at the close of business on the preceding March 1 or September 1 (whether or not such day is a Business Day),
respectively. Interest on the Notes 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. Additional Interest will be payable as set forth in the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall
be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to the Indenture, and any express mention of the payment of Additional Interest in any provision therein shall not be construed as
excluding Additional Interest in those provisions thereof where such express mention is not made. 
 Any Defaulted Amounts shall accrue
interest per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid by the
Company in accordance with the Indenture. 
 The Company shall pay the principal of and interest 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 

 

	(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. 


	(6)	Include if a global note. 


  
 A-1 








 Indenture, the Company shall pay the principal of any Notes (other than Notes that are Global Notes) at the
office or agency designated by the Company for that purpose. The Company has initially designated the Trustee as its Paying Agent and Registrar in respect of the Notes. 

Reference is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the
Holder of this Note the right to convert this Note into cash, and, if applicable, shares of Common Stock (unless the Company elects to deliver cash in lieu of all or a portion of such shares), on the terms and subject to the limitations set forth in
the Indenture. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. 
 This
Note shall be governed by, and construed in accordance with, the internal laws of the State of New York. 
 In the case of any conflict
between this Note and the Indenture, the provisions of the Indenture shall control and govern. 
 This Note shall not be valid or become
obligatory for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating agent under the Indenture. 

[Remainder of page intentionally left blank] 

  
 A-2 








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

 

			
	TESLA, INC.
		
	By:	 	  

		 	Name:
		 	Title:


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

			
	U.S. BANK NATIONAL ASSOCIATION, as Trustee
		
	By:	 	  

		 	Authorized Officer


  
 A-3 








 [FORM OF REVERSE OF NOTE] 

TESLA, INC. 
 2.375% Convertible
Senior Note due 2022 
 This Note is one of a duly authorized issue of Securities of the Company, designated as its 2.375% Convertible
Senior Notes due 2022 (the “Notes”), limited to the aggregate principal amount of $850,000,000 (or $977,500,000 if the Underwriters exercise their option to purchase additional Notes in full in accordance with the Underwriting
Agreement) all issued or to be issued under and pursuant to an Indenture dated as of May 22, 2013 (the “Base Indenture”), as amended and supplemented by the Fourth Supplemental Indenture dated as of March 22, 2017 (herein
called the “Supplemental Indenture”; the Base Indenture, as amended and supplemented by the Supplemental Indenture, and as it may be further amended or supplemented from time to time, the “Indenture”), by and
between the Company and U.S. Bank National Association (the “Trustee”) to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. 

In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of, and 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 Purchase 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 shall pay cash amounts in money of the United States that at the time of payment is legal tender for payment of public and private debts. 

The Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of the
Notes, and in certain other circumstances, with the consent of the Holders of 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. 
 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 Fundamental Change Purchase Price, if


  
 A-4 








 
applicable) of, accrued and unpaid interest on, and the consideration due upon conversion of, this Note at the place, at the respective times, at the rate or in the amount, as applicable, and in
the manner herein prescribed. 
 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 designated by the Company for such purpose under the Indenture, 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 not be redeemable at the Company’s option. 

Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s option, to require the Company to purchase 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 Purchase Date at a price equal to the Fundamental Change Purchase Price. 

Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into
cash and, if applicable, shares of Common Stock (subject to the Company’s right to deliver cash in lieu of all or a portion of such shares of Common Stock) 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. 

  
 A-5 








 ABBREVIATIONS 

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

UNIF GIFT MIN ACT = Uniform Gifts to Minors Act 
 CUST =
Custodian 
 TEN ENT = as tenants by the entireties 
 JT
TEN = joint tenants with right of survivorship and not as tenants in common 
 Additional abbreviations may also be used though not in
the above list. 

  
 A-6 








 SCHEDULE A 

SCHEDULE OF EXCHANGES OF NOTES 

TESLA, INC. 
 2.375% Convertible
Senior Notes due 2022 
 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	 
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			
		  				  				  				  			


  
 A-7 








 ATTACHMENT 1 

[FORM OF NOTICE OF CONVERSION] 

To: Tesla, Inc. 
 The undersigned
registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 in principal amount or an integral multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash
and shares of Common Stock, at the Company’s election, in accordance with the terms of the Indenture, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any
fractional share of Common Stock, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or any
portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with the Indenture. Any amount
required to be paid to the undersigned on account of interest accompanies this Note. 
  

							
	Dated:	 	  
	 		 	  

				
		 		 		 	  

		 		 		 	Signature(s)
			
	  
	 		 	
	Signature Guarantee	 		 	
			
	 Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares of
Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder.
	 		 	
			
	 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:
	 		 	


  
 1 









					
	  
	 		 	
	(Name)	 		 	
			
	  
	 		 	
	(Street Address)	 		 	
			
	  
	 		 	
	(City, State and Zip Code)	 		 	
	Please print name and address	 		 	
			
		 		 	Principal amount to be converted (if less than all): $        ,000
			
		 		 	NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
			
		 		 	  

		 		 	Social Security or Other Taxpayer
		 		 	Identification Number


  
 2 








 ATTACHMENT 2 

[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE] 

To: Tesla, Inc. 
 The undersigned registered
owner of this Note hereby acknowledges receipt of a notice from Tesla, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Purchase Date and requests
and instructs the Company to pay to the registered holder hereof in accordance with the Indenture (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 Purchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding,
such Fundamental Change Purchase Date. 
 In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set
forth below: 
  

							
	Dated:	 	  
	 		 	
				
		 		 		 	  

		 		 		 	Signature(s)
				
		 		 		 	  

		 		 		 	 Social Security or Other Taxpayer

 Identification Number

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


  
 1 








 ATTACHMENT 3 

[FORM OF ASSIGNMENT AND TRANSFER] 
 For
value received                      hereby sell(s), assign(s) and transfer(s) unto
                     (Please insert Social Security or Taxpayer Identification Number of assignee) the within Note, and hereby irrevocably
constitutes and appoints                      attorney to transfer the said Note on the books of the Company, with full power of substitution in the
premises. 
  

			
	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. 

  
 1