Exhibit 4.1


 





 


 


ACCURAY INCORPORATED



and



THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.



as Trustee


 


INDENTURE


 


Dated as of August 7, 2017


 


3.75% Convertible Senior Notes
due 2022


 








 


 






    	 



    	 



    

TABLE OF CONTENTS


 




 


 







	I.   DEFINITIONS
    AND INCORPORATION BY REFERENCE	1
	1.01
    Definitions.	1
	1.02
    Other Definitions.	8
	1.03
    Incorporation by Reference of Trust Indenture Act	9
	1.04
    Rules of Construction.	10
	II.   THE
    SECURITIES	11
	2.01
    Form and Dating.	11
	2.02
    Execution and Authentication.	11
	2.03
    Registrar, Paying Agent, Bid Solicitation Agent and Conversion Agent.	12
	2.04
    Paying Agent to Hold Money in Trust.	13
	2.05
    Holder Lists.	13
	2.06
    Transfer and Exchange.	13
	2.07
    Replacement Securities.	13
	2.08
    Outstanding Securities.	14
	2.09
    Securities Held by the Company or an Affiliate.	15
	2.10
    Temporary Securities.	15
	2.11
    Cancellation.	15
	2.12
    Defaulted Interest.	16
	2.13
    CUSIP Numbers.	16
	2.14
    Deposit of Moneys.	16
	2.15
    Book-Entry Provisions for Global Securities.	16
	2.16
    Special Transfer Provisions.	18
	2.17
    Restrictive Legends.	19
	2.18
    Ranking.	20
	III.   NO
    REDEMPTION; REPURCHASE	20
	3.01
    No Redemption.	20
	3.02
    Repurchase at Option of Holder Upon a Fundamental Change.	20
	IV.   COVENANTS	25
	4.01
    Payment of Securities.	25
	4.02
    Maintenance of Office or Agency.	25
	4.03
    Rule 144A Information and Annual Reports.	26
	4.04
    Compliance Certificate.	27
	4.05
    Stay, Extension and Usury Laws.	27
	4.06
    Corporate Existence.	27
	4.07
    Notice of Default.	27
	4.08
    Further Instruments and Acts.	27
	


 


 


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	4.09
    Additional Interest.	27
	V.   SUCCESSORS	28
	5.01
    When Company May Merge, etc.	28
	5.02
    Successor Substituted.	29
	VI.   DEFAULTS
    AND REMEDIES	30
	6.01
    Events of Default.	30
	6.02
    Acceleration.	32
	6.03
    Other Remedies.	33
	6.04
    Waiver of Past Defaults.	33
	6.05
    Control by Majority.	33
	6.06
    Limitation on Suits.	34
	6.07
    Rights of Holders to Receive Payment and to Convert Securities.	34
	6.08
    Collection Suit by Trustee.	34
	6.09
    Trustee May File Proofs of Claim.	35
	6.10
    Priorities.	35
	6.11
    Undertaking for Costs.	35
	VII.   TRUSTEE	36
	7.01
    Duties of Trustee.	36
	7.02
    Rights of Trustee.	37
	7.03
    Individual Rights of Trustee.	38
	7.04
    Trustee’s Disclaimer.	38
	7.05
    Notice of Defaults.	39
	7.06
    Reports by Trustee to Holders	39
	7.07
    Compensation and Indemnity.	39
	7.08
    Replacement of Trustee.	40
	7.09
    Successor Trustee by Merger, etc.	41
	7.10
    Eligibility; Disqualification.	41
	7.11
    Preferential Collection of Claims Against Company.	41
	VIII.   DISCHARGE
    OF INDENTURE	41
	8.01
    Termination of the Obligations of the Company.	41
	8.02
    Application of Trust Money.	42
	8.03
    Repayment to Company.	42
	8.04
    Reinstatement.	42
	IX.   AMENDMENTS	43
	9.01
    Without Consent of Holders.	43
	9.02
    With Consent of Holders.	43
	9.03
    Revocation and Effect of Consents.	45
	9.04
    Notation on or Exchange of Securities.	45
	


 


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	9.05
    Trustee Protected.	45
	9.06
    Effect of Supplemental Indentures.	46
	X.   CONVERSION	46
	10.01
    Conversion Privilege.	46
	10.02
    Conversion Procedure and Payment Upon Conversion.	48
	10.03
    Cash in lieu of Fractional Shares.	52
	10.04
    Taxes on Conversion.	53
	10.05
    Company to Provide Common Stock.	53
	10.06
    Adjustment of Conversion Rate.	53
	10.07
    No Adjustment.	62
	10.08
    Other Adjustments.	63
	10.09
    Adjustments for Tax Purposes.	63
	10.10
    Notice of Adjustment.	63
	10.11
    Notice of Certain Transactions.	63
	10.12
    Effect of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion Privilege.	64
	10.13
    Conversion Agent and Trustee’s Disclaimer.	66
	10.14
    Rights Distributions Pursuant to Stockholders’ Rights Plans.	66
	10.15
    Increased Conversion Rate Applicable to Certain Securities Surrendered in Connection With Make-Whole Fundamental Changes.	66
	XI.   CONCERNING
    THE HOLDERS	69
	11.01
    Action by Holders.	69
	11.02
    Proof of Execution by Holders.	69
	11.03
    Persons Deemed Absolute Owners.	70
	XII.   HOLDERS’
    MEETINGS.	70
	12.01
    Purpose of Meetings.	70
	12.02
    Call of Meetings by Trustee.	71
	12.03
    Call of Meetings by Company or Holders.	71
	12.04
    Qualifications for Voting.	71
	12.05
    Regulations.	71
	12.06
    Voting.	72
	12.07
    No Delay of Rights by Meeting.	72
	XIII.   MISCELLANEOUS	73
	13.01
    Notices.	73
	13.02
    Certificate and Opinion as to Conditions Precedent.	74
	13.03
    Statements Required in Certificate or Opinion.	74
	13.04
    Communication by Holders with Other Holders.	75
	13.05
    Rules by Trustee and Agents.	75
	13.06
    Legal Holidays.	75
	13.07
    Duplicate Originals.	75
	


 


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	13.08
    Governing Law.	75
	13.09
    No Adverse Interpretation of Other Agreements.	76
	13.10
    Successors.	76
	13.11
    Separability.	76
	13.12
    Table of Contents, Headings, etc.	76
	13.13
    Calculations in Respect of the Securities; Adjustment of Prices.	76
	13.14
    No Personal Liability of Directors, Officers, Employees or Stockholders.	77
	13.15
    Force Majeure.	77
	13.16
    Foreign Account Tax Compliance Act (FATCA).	78



 





	Exhibit A	-	Form of Global Security
	Exhibit B-1A	-	Form of Private Placement Legend (Securities)
	Exhibit B-1B	-	Form of Private Placement Legend (Common Stock)
	Exhibit B-2	-	Form of Legend for Global Security







 


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INDENTURE,
dated as of August 7, 2017, between Accuray Incorporated, a Delaware corporation (the “Company”), and
The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States,
as trustee (the “Trustee”).


 


Each
party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s
3.75% Convertible Senior Notes due 2022 (the “Securities”).


 


I.       DEFINITIONS
AND INCORPORATION BY REFERENCE


 


1.01       Definitions.


 


“Additional
Interest” means all amounts, if any, payable pursuant to Sections ‎4.09(A), ‎4.09(B) and
‎6.02(B), as applicable.


 


“Affiliate”
means, with respect to a specified Person, any Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For this purpose, “control” shall mean the power to direct the management
and policies of a Person through the ownership of securities, by contract or otherwise.


 


“Applicable
Law” has the meaning set forth in Section ‎13.16.


 


“Asset
Sale Make-Whole Fundamental Change” means a sale, transfer, lease, conveyance or other disposition of all or substantially
all of the consolidated property or assets of the Company to any “person” or “group” (as those terms are
used in Sections 13(d) and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting
or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act (but excluding any of the Company’s
Subsidiaries), other than a sale, transfer, lease, conveyance or other disposition that constitutes a Listed Stock Business Combination.


 


“Bid
Solicitation Agent” means the Person appointed by the Company to solicit bids for the Trading Price of the Securities
in accordance with Section ‎10.01(B)(ii). The Company shall initially act as the Bid Solicitation Agent.


 


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


 


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


 


“Capital
Stock” of any Person means any and all shares, interests, participations or other equivalents (however designated) of
capital stock of such Person and all warrants or options to acquire such capital stock.


 




    -1-


     

    

“Cash
Settlement Averaging Period” means, (i) with respect to any Conversion Date occurring on or after the sixty-second (62nd)
Business Day immediately preceding the Maturity Date, the sixty (60) consecutive Trading Day period beginning on, and including,
the sixty-second (62nd) Business Day immediately preceding the Maturity Date; or (ii) in all other cases, the sixty (60) consecutive
Trading Day period beginning on, and including, the third (3rd) Business Day immediately following the relevant Conversion Date.


 


“Change
in Control” shall be deemed to have occurred at such time as:


 


(a)       any
“person” or “group” (as those terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the “beneficial owner” (as that term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty
percent (50%) or more of the Company’s Voting Stock;


 


(b)       (i)
the Company consolidates with, or merges with or into, another Person or any Person consolidates with, or merges with or into,
the Company or (ii) there occurs a sale, transfer, lease, conveyance or other disposition of all or substantially all of the consolidated
property or assets of the Company to any “person” or “group” (as those terms are used in Sections 13(d)
and 14(d) of the Exchange Act), including any group acting for the purpose of acquiring, holding, voting or disposing of securities
within the meaning of Rule 13d-5(b)(1) under the Exchange Act (but excluding any of the Company’s Subsidiaries), unless:


 


(1)       in
the case of a transaction described in subclause (i) or subclause (ii) in clause (b) above, both of the following
conditions are satisfied: (x) at least ninety percent (90%) of the consideration (other than cash payments for fractional shares
or pursuant to statutory appraisal rights) in such consolidation, merger, sale, transfer, lease, conveyance or other disposition
consists of common stock and any associated rights listed and traded on The New York Stock Exchange, The NASDAQ Global Select
Market or The NASDAQ Global Market (or any of their respective successors) (or which will be so listed and traded when issued
or exchanged in connection with such consolidation, merger, sale, transfer, lease, conveyance or other disposition); and (y) as
a result of such consolidation, merger, sale, transfer, lease, conveyance or other disposition, the Securities become convertible
into solely such consideration (subject to the Company’s right to pay cash in respect of all or a portion of its conversion
obligation as described in Section ‎10.02(A)) (such a consolidation, merger, sale, transfer, lease, conveyance
or other disposition that satisfies the conditions set forth in this clause (b)‎(1), a “Listed Stock
Business Combination”); or


 


(2)       in
the case of a transaction described in subclause (i) in clause (b) above, the Persons that “beneficially owned”
(as that term is used in Rule 13d-3 under the Exchange Act), directly or indirectly, the shares of the Company’s Voting
Stock immediately prior to such


 




    -2-


     

    

consolidation
or merger, “beneficially own,” directly or indirectly, immediately after such consolidation or merger, shares of the
surviving or continuing corporation’s Voting Stock representing at least a majority of the total outstanding voting power
of all outstanding classes of Voting Stock of the surviving or continuing corporation in substantially the same proportion as
such ownership immediately prior to such consolidation or merger; or


 


(c)       the
Company is liquidated or dissolved or holders of the Company’s Capital Stock approve any plan or proposal for the liquidation
or dissolution of the Company.


 


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


 


“Closing
Sale Price” on any date means the per share price of the Common Stock on such date, determined (i) on the basis of the
closing per share sale price (or if no closing per share sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask prices) on such date on the principal U.S. national
or regional securities exchange on which shares of Common Stock are listed; or (ii) if shares of Common Stock are not listed on
a U.S. national or regional securities exchange, as reported by OTC Markets Group Inc. or a similar organization; provided,
however, that in the absence of any such report or quotation, the “Closing Sale Price” shall be the
price determined by a nationally recognized independent investment banking firm retained by the Company for such purpose as most
accurately reflecting the per share price that a fully informed buyer, acting on his own accord, would pay to a fully informed
seller, acting on his own accord, in an arms-length transaction, for a share of Common Stock.


 


“Code”
has the meaning set forth in Section ‎13.16.


 


“Common
Stock” means the common stock, par value $0.001 per share, of the Company at the date of this Indenture, subject to
Section ‎10.12.


 


“Common
Stock Change Make-Whole Fundamental Change” means any transaction or series of related transactions (other than a consolidation
or merger that constitutes a Listed Stock Business Combination), in connection with which (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization, asset sale, lease of assets
or otherwise) the Common Stock is exchanged for, converted into, acquired for or constitutes solely the right to receive other
securities, other property, assets or cash.


 


“Company”
means the party named as such in the recitals above until a successor replaces it pursuant to the applicable provision hereof
and thereafter means the successor. The foregoing sentence shall likewise apply to any such successor or subsequent successor.


 


“Company
Order” means a written request or order signed on behalf of the Company by its Chairman of the Board, its Chief Executive
Officer, its President, its Chief Operating Officer, its Chief Financial Officer or any Vice President and its Treasurer or an
Assistant Treasurer or its Secretary or an Assistant Secretary, and delivered to the Trustee.


 




    -3-


     

    

“Conversion
Date” with respect to a Security means the date on which a Holder satisfies all the requirements for such conversion
specified in the first paragraph of Section ‎10.02(A).


 


“Conversion
Notice” means a “Conversion Notice” in the form attached as Attachment 2 to the form of Security attached
hereto as Exhibit A.


 


“Conversion
Price” means, as of any date of determination, the dollar amount derived by dividing one thousand dollars ($1,000) by
the Conversion Rate in effect on such date.


 


“Conversion
Rate” shall initially be 174.8252 shares of Common Stock per $1,000 principal amount of Securities, subject to adjustment
as provided in Article ‎X.


 


“Conversion
Trigger Price” means, as of any date of determination, the dollar amount derived by multiplying the Conversion Price
in effect on such date by 130%.


 


“Conversion
Value” per $1,000 principal amount of Securities on each Trading Day in the Security Measurement Period is the product
of the Closing Sale Price per share of the Common Stock on that Trading Day and the Conversion Rate in effect on that Trading
Day.


 


“Corporate
Trust Office of the Trustee” means the principal office of the Trustee at which at any time its corporate trust business
shall be administered, which office as of the date hereof is located at 400 South Hope Street, Suite 500, Los Angeles, CA 90071,
Attention: Corporate Unit, or such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).


 


“Daily
Conversion Value” means, for each of the sixty (60) consecutive Trading Days in the Cash Settlement Averaging Period,
one-sixtieth (1/60th) of the product of (i) the applicable Conversion Rate and (ii) the Volume-Weighted Average Price of the Common
Stock on such Trading Day.


 


“Daily
Settlement Amount” for each of the sixty (60) consecutive Trading Days in the Cash Settlement Averaging Period, shall
consist of (x) cash equal to the lesser of (i) the Specified Cash Amount, divided by sixty (60) (such quotient being referred
to as the “Daily Measurement Value”) and (ii) the Daily Conversion Value for such Trading Day; and (y) to the
extent the Daily Conversion Value 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 Volume-Weighted Average Price of
the Common Stock on such Trading Day.


 


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


 


“Depositary”
means The Depository Trust Company, its nominees and successors.


 


“Effective
Date” means the first date on which the shares of the Common Stock trade on the applicable exchange or in the applicable
market, respectively, reflecting the transaction.


 




    -4-


     

    

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


 


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


 


“Fundamental
Change” shall be deemed to occur upon the occurrence of either a Change in Control or a Termination of Trading.


 


“Holder”
means a Person in whose name a Security is registered on the Registrar’s books.


 


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


 


“Interest
Payment Date” means January 15 and July 15 of each year, beginning on January 15, 2018.


 


“Issue
Date” means August 7, 2017.


 


“Make-Whole
Fundamental Change” means an Asset Sale Make-Whole Fundamental Change or a Common Stock Change Make-Whole Fundamental
Change.


 


“Market
Disruption Event” means (i) a failure by the primary United States national or regional securities exchange or market
on which shares of Common Stock or the relevant securities are listed or admitted to trading 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 shares
of Common Stock or the relevant securities 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 shares of Common Stock (or the relevant securities) or in any options contracts or futures contracts
relating to shares of Common Stock (or the relevant securities).


 


“Maturity
Date” means July 15, 2022.


 


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


 


“Officer’s
Certificate” means a certificate signed by one Officer of the Company.


 


“Opinion
of Counsel” means a written opinion from legal counsel who may be an employee of or counsel for the Company, or other
counsel reasonably acceptable to the Trustee.


 


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


 




    -5-


     

    

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


 


“Private
Placement Memorandum” means the preliminary private placement memorandum of the Company dated July 24, 2017, as
supplemented by the related pricing term sheet dated July 27, 2017, relating to the offering and sale of the Securities.


 


“Purchase
Notice” means a “Purchase Notice” in the form attached as Attachment 3 to the form of Security attached
hereto as Exhibit A.


 


“record
date” means, unless the context requires otherwise, 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 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 or by statute, contract or otherwise).


 


“Record
Date” for interest payable in respect of any Security on any Interest Payment Date means the January 1 or July 1 (whether
or not a Business Day), as the case may be, immediately preceding such Interest Payment Date.


 


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


 


“Restricted
Security” means a Security that constitutes a “restricted security” within the meaning of Rule 144(a)(3)
under the Securities Act; provided, however, that the Trustee shall be entitled to request, and conclusively rely
on, an Opinion of Counsel with respect to whether any Security constitutes a Restricted Security.


 


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


 


“Scheduled
Trading Day” means, with respect to shares of Common Stock or any other security, a day that is scheduled to be a Trading
Day on the primary United States national securities exchange or market on which shares of Common Stock or the relevant securities
are listed or admitted for trading. If shares of Common Stock or the relevant securities are not so listed or admitted for trading,
“Scheduled Trading Day” means any Business Day.


 


“SEC”
means the Securities and Exchange Commission.


 


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


 




    -6-


     

    

“Securities
Agent” means any Registrar, Paying Agent, Bid Solicitation Agent, Conversion Agent or co-registrar or co-agent.


 


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


 


“Subsidiary”
means (i) a corporation a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors
is at the time, directly or indirectly, owned by the Company, by one or more subsidiaries of the Company or by the Company and
one or more of its subsidiaries or (ii) any other Person (other than a corporation) in which the Company, one or more of its subsidiaries,
or the Company and one or more of its subsidiaries, directly or indirectly, at the date of determination thereof, own at least
a majority ownership interest.


 


“Termination
of Trading” shall be deemed to occur if shares of Common Stock (or other common stock into which the Securities are
then convertible (subject to the Company’s right to pay cash in respect of all or a portion of its conversion obligation
as described in Section ‎10.02(A))) are not listed for trading on The New York Stock Exchange, The NASDAQ Global
Select Market or The NASDAQ Global Market (or any of their respective successors).


 


“TIA”
means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as amended and in effect from time to time.


 


“Trading
Day,” except for determining amounts due upon conversion pursuant to Section ‎10.02‎, means a day on
which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on
The NASDAQ Global Select Market or, if the Common Stock (or such other security) is not then listed on The NASDAQ Global Select
Market, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security)
is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale
Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or market;
provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day”
means a Business Day; and provided, further, that for purposes of determining amounts due upon conversion pursuant
to Section ‎10.02 only, “Trading Day” means a day on which (x) there is no Market Disruption Event
and (y) trading in the Common Stock generally occurs on The NASDAQ Global Select Market or, if the Common Stock is not then listed
on The NASDAQ Global Select Market, on the principal other U.S. national or regional securities exchange on which the Common Stock
is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal
other market on which the Common Stock is then listed or admitted for trading, except that if the Common Stock is not so listed
or admitted for trading, “Trading Day” means a Business Day.


 


“Trading
Price” of the Securities on any Trading Day means the average of the secondary market bid quotations obtained by the
Bid Solicitation Agent for $2.0 million


 




    -7-


     

    

principal
amount of Securities at approximately 3:30 p.m., New York City time, on such Trading Day from three independent nationally recognized
securities dealers the Company selects; provided that if the Bid Solicitation Agent can reasonably obtain only two such
bids, then the average of such two bids shall instead be used, and if the Bid Solicitation Agent can reasonably obtain only one
such bid, then such single bid shall be used; and provided, further, that if, on any Trading Day, the Bid Solicitation
Agent cannot reasonably obtain at least one bid for $2.0 million principal amount of the Securities from an independent nationally
recognized securities dealer, then the Trading Price per $1,000 principal amount of Securities shall be deemed to be equal to
98% of the Conversion Value on such Trading Day. If (i) the Company is not acting as Bid Solicitation Agent and it does not instruct
the Bid Solicitation Agent to obtain bids when required pursuant to Section ‎10.01(B)(ii), or if the Company
gives such instruction to the Bid Solicitation Agent and the Bid Solicitation Agent fails to make such determination, or (ii)
the Company is acting as Bid Solicitation Agent and the Company fails to determine the Trading Price when required pursuant to
Section ‎10.01(B)(ii), then, in each case, the “Trading Price” per $1,000 principal amount
of Securities shall be deemed to be equal to 98% of the Conversion Value of the Securities on each Trading Day of such failure.


 


“Trustee”
means the party named as such in this Indenture until a successor replaces it in accordance with the provisions hereof and thereafter
means the successor. The foregoing sentence shall likewise apply to any such successor or subsequent trustee.


 


“Volume-Weighted
Average Price” per share of Common Stock on any Trading Day means such price as displayed on Bloomberg (or any successor
service) page ARAY <equity> AQR in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading
Day, or, if such price is not available, the “Volume-Weighted Average Price” means the market value per share
of Common Stock on such Trading Day as determined by a nationally recognized investment banking firm retained for this purpose
by the Company.


 


“Voting
Stock” of any Person means the total outstanding voting power of all classes of Capital Stock of such Person entitled
to vote generally in the election of directors of such Person.


 


1.02       Other
Definitions.


 


	Term	Defined in Section
	“Additional Interest Notice”
    	‎4.09(D)
	“Additional Securities”	‎2.02
	“Applicable Price”	‎10.15(D)
	“Bankruptcy Law”	‎6.01
	“Business Day”	‎13.06
	“Clause A Distribution”
    	‎10.06(c)
	“Clause B Distribution”
    	‎10.06(c)
	“Clause C Distribution”
    	‎10.06(c)
	“Common Stock Private Placement
    Legend”	‎2.17
	“Conversion Agent”	‎2.03
	“Custodian”	‎6.01
	“Daily Measurement Value”	‎1.01




    -8-


     

    

	“Distributed Property”
    	‎10.06(c)
	“Event of Default”	‎6.01
	“Full Physical Settlement”
    	‎10.02(C)
	“Full Physical Settlement Election”
    	‎10.02(C)
	“Fundamental Change Notice”	‎3.02(B)
	“Fundamental Change Repurchase
    Date”	‎3.02(A)
	“Fundamental Change Repurchase
    Price”	‎3.02(A)
	“Fundamental Change Repurchase
    Right”	‎3.02(A)
	“Global Security”	‎2.01
	“Legal Holiday”	‎13.06
	“Listed Stock Business Combination”
    	‎1.01
	“Make-Whole Applicable Increase”	‎10.15(B)
	“Make-Whole Conversion Period”	‎10.15(A)
	“Maximum Conversion Rate”
    	‎10.15(B)
	“Merger Event” 	‎10.12
	“Net Share Settlement”
    	‎10.02(B)
	“Net Share Settlement Election”
    	‎10.02(B)
	“Participants”	‎2.15(A)
	“Paying Agent”	‎2.03
	“Physical Securities”	‎2.01
	“Reference Property”	‎10.12
	“Registrar”	‎2.03
	“Repurchase Upon Fundamental Change”	‎3.02(A)
	“Resale Restriction Termination
    Date”	‎2.17
	“Securities”	Preamble
	“Security Measurement Period”
    	‎10.01(B)(ii)
	“Security Private Placement Legend”	‎2.17
	“Specified Cash Amount”	‎10.02(A)
	“Spin-Off”	‎10.06(c)
	“Trading Price Condition”
    	‎10.01(B)(ii)
	“Trigger Event”	‎10.06(c)
	 	 


 


1.03       Incorporation
by Reference of Trust Indenture Act


 


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


 


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


 


“Commission”
means the SEC; 


“indenture
securities” means the Securities; 


“indenture
security holder” means a Holder; 


“indenture
to be qualified” means this Indenture; 


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


“obligor”
on the indenture securities means the Company or any successor.


 




    -9-


     

    

All
other terms used in this Indenture that are defined by the TIA, defined by the TIA by reference to another statute or defined
by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them.


 


1.04       Rules
of Construction.


 


Unless
the context otherwise requires:


 


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


 


(ii)       an
accounting term not otherwise defined has the meaning assigned to it in accordance with U.S. generally accepted accounting principles
in effect from time to time;


 


(iii)      “or”
is not exclusive;


 


(iv)      “including”
means “including without limitation”;


 


(v)       words
in the singular include the plural and in the plural include the singular;


 


(vi)      provisions
apply to successive events and transactions;


 


(vii)     the
term “interest” means any interest payable under the terms of the Securities, including Additional Interest,
if any, payable pursuant to Sections ‎4.09(A), ‎4.09(B) and ‎6.02(B), unless the context otherwise
requires;


 


(viii)    the
term “principal” means the principal of any Security payable under the terms of such Securities, unless the
context otherwise requires;


 


(ix)       “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision of this Indenture; and


 


(x)        references
to currency shall mean the lawful currency of the United States of America, unless the context requires otherwise.


 


Unless the
context otherwise requires, any reference to interest on, or in respect of, any Security in this Indenture shall be deemed to
include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of ‎ Sections
‎4.09(A), ‎4.09(B) and ‎6.02(B). 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.


 




    -10-


     

    

II.       THE
SECURITIES


 


2.01       Form
and Dating.


 


The
Securities and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A,
which is incorporated in and forms a part of this Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage; provided that such notations, legends or endorsements are in a form reasonably acceptable
to the Company. Each Security shall be dated the date of its authentication.


 


Securities
shall be issued initially in the form of one or more Global Securities, substantially in the form set forth in Exhibit A
(each, a “Global Security”), deposited with the Trustee, as custodian for the Depositary, registered in the
name of the Depositary or a nominee thereof, duly executed by the Company and authenticated by the Trustee as hereinafter provided
and bearing the legends set forth in Exhibits B-1A and B-2. The aggregate principal amount of each Global Security
may from time to time be increased or decreased by adjustments made on the records of the Trustee, upon the occurrence of which
the Trustee shall make a corresponding adjustment on the “Schedule of Exchanges of Interests in the Global Security”
attached thereto, as hereinafter provided.


 


Securities
issued in exchange for interests in a Global Security pursuant to Section ‎2.15 may be issued in the form of
permanent certificated Securities in registered form in substantially the form set forth in Exhibit A (“Physical
Securities”) and, if applicable, bearing any legends required by Section ‎2.17.


 


2.02       Execution
and Authentication.


 


One
duly authorized Officer shall sign the Securities for the Company by manual or facsimile signature.


 


A
Security’s validity shall not be affected by the failure of an Officer whose signature is on such Security to hold, at the
time the Security is authenticated, the same office at the Company.


 


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


 


Upon
a written order of the Company signed by one Officer of the Company, the Trustee shall authenticate Securities for original issue
on the date of this Indenture in the form of one Global Security bearing the Security Private Placement Legend required by Section
‎2.17, in the aggregate principal amount of $85,000,000.


 


The
aggregate principal amount of Securities outstanding at any time may not exceed $85,000,000, subject to the immediately succeeding
paragraph and except for Securities authenticated and delivered in lieu of mutilated, lost, destroyed or stolen Securities pursuant
to Section ‎2.07.


 




    -11-


     

    

The
Company may, without the consent of Holders of the Securities, increase the aggregate principal amount of Securities by issuing
additional Securities (“Additional Securities”) in an unlimited aggregate principal amount in the future on
the same terms and conditions (except for any difference in the issue date, issue price, interest accrued prior to the issue date
of the Additional Securities and, if applicable, restrictions on transfer with respect to such Additional Securities), and with
the same CUSIP number as the Securities issued hereunder; provided that if such Additional Securities are not fungible
with the Securities issued hereunder for U.S. federal income tax purposes, such Additional Securities will have one or more separate
CUSIP numbers. The Securities initially issued hereunder and any such Additional Securities shall rank equally and ratably and
shall be treated as a single series of debt securities for all purposes under this Indenture.


 


The
Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may appoint an authenticating agent acceptable
to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such authenticating agent. An authenticating
agent so appointed has the same rights as a Securities Agent to deal with the Company and its Affiliates.


 


The
Securities shall be issuable only in registered form without interest coupons and only in denominations of $1,000 principal amount
and any integral multiple thereof.


 


2.03       Registrar,
Paying Agent, Bid Solicitation Agent and Conversion Agent.


 


The
Company shall maintain, or shall cause to be maintained, (i) an office or agency located in the United States, where Securities
may be presented for registration of transfer or for exchange (“Registrar”), (ii) an office or agency located
in the United States, where Securities may be presented for payment (“Paying Agent”) and (iii) an office or
agency located in the United States, where Securities may be presented for conversion (“Conversion Agent”).
The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint or change one
or more co-registrars, one or more additional paying agents and one or more additional conversion agents without notice and may
act in any such capacity on its own behalf. The Company may vary or terminate the appointment of the Paying Agent, Bid Solicitation
Agent, Registrar, Conversion Agent or Custodian, and may approve any change in the office through which any Registrar or any Paying
Agent or Conversion Agent acts, so long as such office is located in the United States. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Conversion
Agent” includes any additional conversion agent.


 


The
Company shall enter into an appropriate agency agreement with any Securities Agent not a party to this Indenture. Such agency
agreement shall implement the provisions of this Indenture that relate to such Securities Agent. The Company shall notify the
Trustee of the name and address of any Securities Agent not a party to this Indenture. If the Company fails to maintain a Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such.


 


The
Company initially appoints the Trustee as Paying Agent, Registrar, Conversion Agent and Custodian.


 




    -12-


     

    

2.04       Paying
Agent to Hold Money in Trust.


 


Each
Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all moneys held by the Paying Agent for the payment
of the Securities, and shall notify the Trustee of any Default by the Company in making any such payment. While any such Default
continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and account for any funds so paid by it. Upon payment over to the Trustee,
the Paying Agent shall have no further liability for such money. If the Company acts as Paying Agent, it shall segregate and hold
as a separate trust fund all money held by it as Paying Agent.


 


2.05       Holder
Lists.


 


The
Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall furnish, or shall cause to be furnished, to the Trustee
before each Interest Payment Date and at such other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of Holders appearing in the security register of the
Registrar.


 


2.06       Transfer
and Exchange.


 


Subject
to Sections ‎2.15 and ‎2.16, where Securities are presented by or on behalf of a Holder to the Registrar
with a request to register their transfer or to exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transaction are met.
To permit registrations of transfer and exchanges, the Trustee shall authenticate Securities at the Registrar’s request
or upon the Trustee’s receipt of a Company Order therefor. The Company, the Registrar or the Trustee, as the case may be,
shall not be required to register the transfer of or exchange any Security for which the Holder has delivered, and not validly
withdrawn, a Purchase Notice in accordance with this Indenture, except (i) if the Company defaults in the payment of the Fundamental
Change Repurchase Price or (ii) with respect to the portion of Securities not being repurchased.


 


No
service charge shall be made for any transfer, exchange or conversion of Securities, but the Company may require payment of a
sum sufficient to cover any transfer tax or other similar governmental charge that may be imposed in connection with any transfer,
exchange or conversion of Securities, other than exchanges pursuant to Sections ‎2.07, ‎2.10, ‎3.02,
‎9.04 or ‎10.02, not involving any transfer.


 


2.07       Replacement
Securities.


 


If
the Holder of a Security claims that the Security has been mutilated, lost, destroyed or stolen, the Company shall issue and the
Trustee shall authenticate, at the Holder’s expense, a replacement Security upon surrender to the Trustee of the mutilated
Security, or upon delivery to the Trustee of evidence of the mutilation, loss, destruction or theft of the Security satisfactory
to the Trustee and the Company. In the case of a mutilated, lost, destroyed or stolen Security, if required by the Trustee or
the Company, indemnity (including in the form of a bond) must be


 




    -13-


     

    

provided
by the Holder that is reasonably satisfactory to the Trustee and the Company to indemnify and hold harmless the Company, the Trustee
or any Securities Agent from any loss that any of them may suffer if such Security is replaced.


 


In
case any such mutilated, lost, destroyed or stolen Security has become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay the amounts due in respect of such Security as provided hereunder.


 


Every
replacement Security is an additional obligation of the Company only as provided in Section ‎2.08.


 


2.08       Outstanding
Securities.


 


Securities
outstanding at any time are all the Securities authenticated by the Trustee except for those converted, those cancelled by it,
those delivered to it for cancellation and those described in this Section ‎2.08 as not outstanding. Except
to the extent provided in Section ‎2.09, a Security does not cease to be outstanding because the Company or
one of its Subsidiaries or Affiliates holds the Security.


 


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


 


If
the Paying Agent (in the case of a Paying Agent other than the Company) holds on a Fundamental Change Repurchase Date or Maturity
Date money sufficient to pay the aggregate Fundamental Change Repurchase Price or principal amount (plus accrued and unpaid interest,
if any) as the case may be, with respect to all Securities to be repurchased or paid on such Fundamental Change Repurchase Date
or Maturity Date, as the case may be, in each case, payable as herein provided on such Fundamental Change Repurchase Date or Maturity
Date, then (unless there shall be a Default in the payment of such aggregate Fundamental Change Repurchase Price or principal
amount, or of such accrued and unpaid interest), except as otherwise provided herein, then on and after such date such Securities
shall be deemed to be no longer outstanding, interest on such Securities shall cease to accrue, and such Securities shall be deemed
to be paid whether or not such Securities are delivered to the Paying Agent. Thereafter, all rights of the Holders of such Securities
shall terminate with respect to such Securities, other than the right to receive the Fundamental Change Repurchase Price or principal
amount, as the case may be, plus, if applicable, such accrued and unpaid interest, in accordance with this Indenture.


 


If
a Security is converted in accordance with Article ‎X then, from and after the time of such conversion on the
Conversion Date, such Security shall cease to be outstanding, and interest, if any, shall cease to accrue on such Security unless
there shall be a Default in the payment or delivery of the consideration payable and/or deliverable hereunder upon such conversion
(except that any such Security will remain outstanding for the purpose of receiving any interest or other amounts due following
such conversion as set forth in this Indenture), and the converting Holder shall not be liable for payment of any such amounts
except as set forth in the Indenture.


 




    -14-


     

    

2.09       Securities
Held by the Company or an Affiliate.


 


In
determining whether the Holders of the required aggregate principal amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Company or any of its Subsidiaries or Affiliates shall be considered as though not outstanding,
except that, for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be considered to be outstanding for purposes of this Section ‎2.09
if the pledgee establishes, to the satisfaction of the Trustee, the pledgee’s right so to concur with respect to such
Securities and that the pledgee is not, and is not acting at the direction or on behalf of, the Company, any other obligor on
the Securities, an Affiliate of the Company or an Affiliate of any such other obligor. In case of a dispute as to whether the
pledgee has established the foregoing, any decision by the Trustee taken upon the advice of counsel shall provide full protection
to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate
listing and identifying all Securities, 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 and Section ‎7.02, the Trustee shall
be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Securities not listed therein are outstanding for the purpose of any such determination.


 


2.10       Temporary
Securities.


 


Until
definitive Securities are ready for delivery, the Company may prepare and the Trustee shall, upon receipt of a Company Order therefor,
authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee, upon receipt of a Company Order therefor, shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, each temporary Security shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities, and such temporary Security shall be exchangeable for definitive Securities in accordance with the terms
of this Indenture.


 


2.11       Cancellation.


 


The
Company at any time may deliver Securities to the Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent (if
other than the Trustee) shall forward to the Trustee any Securities surrendered to them by Holders for transfer, exchange, payment
or conversion. Such Securities surrendered to the Trustee for cancellation may not be reissued or resold, and the Trustee shall
promptly cancel all Securities surrendered for transfer, exchange, payment, conversion or cancellation in accordance with its
customary procedures. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee
for cancellation or that any Holder has converted pursuant to Article ‎X. All cancelled Securities held by the
Trustee shall be disposed of in accordance with its customary procedure for the disposal of cancelled securities, and certification
of such disposal shall be delivered by the Trustee to the Company, upon the Company’s written request, unless the Company
shall, by a Company Order, direct that cancelled Securities be returned to it.


 




    -15-


     

    

2.12       Defaulted
Interest.


 


If
and to the extent the Company defaults in a payment of interest on the Securities, the Company shall pay in cash the defaulted
interest in any lawful manner plus, to the extent not prohibited by applicable statute or case law, interest on such defaulted
interest at the rate provided in the Securities. The Company may pay the defaulted interest (plus interest on such defaulted interest)
to the Persons who are Holders on a subsequent special record date. The Company shall fix such special record date and payment
date. At least fifteen (15) calendar days before the special record date, the Company shall mail to Holders and to the Trustee,
in the form of an Officer’s Certificate, a notice that states the special record date, payment date and amount of interest
to be paid. Upon the due payment in full, interest shall no longer accrue on such defaulted interest pursuant to this Section
‎2.12.


 


2.13       CUSIP
Numbers.


 


The
Company in issuing the Securities may use one or more “CUSIP” numbers, and, if so, the Trustee shall use the CUSIP
numbers in notices as a convenience to Holders; provided, however, that no representation is hereby deemed to be
made by the Trustee as to the correctness or accuracy of the CUSIP numbers printed on the notice or on the Securities; and provided
further that reliance may be placed only on the other identification numbers printed on the Securities, and the effectiveness
of any such notice shall not be affected by any defect in, or omission of, such CUSIP numbers. The Company shall promptly notify
the Trustee of any change in the CUSIP numbers.


 


2.14       Deposit
of Moneys.


 


Prior
to 11:00 A.M., New York City time, on each Interest Payment Date, the Maturity Date or any Fundamental Change Repurchase Date,
the Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust
in accordance with Section ‎2.04) money, in funds immediately available on such date, sufficient to make cash
payments, if any, due on such Interest Payment Date, the Maturity Date or such Fundamental Change Repurchase Date, as the case
may be, in a timely manner which permits the Paying Agent to remit payment to the Holders on such Interest Payment Date, the Maturity
Date or such Fundamental Change Repurchase Date, as the case may be.


 


If
any Interest Payment Date, the Maturity Date or any Fundamental Change Repurchase Date falls on a date that is not a Business
Day, the payment due on such Interest Payment Date, the Maturity Date or such Fundamental Change Repurchase Date, as the case
may be, shall be postponed until the next succeeding Business Day, and no interest or other amount shall accrue as a result of
such postponement.


 


2.15       Book-Entry
Provisions for Global Securities.


 


(A)       The
Global Securities initially shall (i) be registered in the name of the Depositary or the nominee of the Depositary, (ii) be delivered
to the Trustee as custodian for the Depositary and (iii) bear legends as set forth in Section ‎2.17 (subject
to Section ‎2.02).


 




    -16-


     

    

Members
of, or participants in, the Depositary (“Participants”) shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under the Global Security,
and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner
of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.


 


(B)       Transfers
of Global Securities shall be limited to transfers in whole, but not in part, to the Depositary, its successors or their respective
nominees. In addition, one or more Physical Securities shall be transferred to beneficial owners, as identified by the Depositary,
in exchange for their beneficial interests in Global Securities only if (i) the Depositary notifies the Company that the Depositary
is unwilling or unable to continue as depositary for any Global Security, or the Depositary ceases to be a “clearing agency”
registered under Section 17A of the Exchange Act, and, in either case, a successor Depositary is not appointed by the Company
within ninety (90) days of such notice or cessation or (ii) an Event of Default has occurred and is continuing and the Registrar
has received a written request from the beneficial owner of the relevant Securities to issue Physical Securities.


 


(C)       In
connection with the transfer of a Global Security in its entirety to beneficial owners pursuant to Section ‎2.15‎(B),
such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the
Trustee shall upon written instructions from the Company authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations.


 


(D)       Any
Physical Security delivered in exchange for an interest in a Global Security that bears the Security Private Placement Legend
pursuant to Section ‎2.15‎(B) shall, except as otherwise provided by Section ‎2.16,
bear the Security Private Placement Legend.


 


(E)       The
Holder of any Global Security may grant proxies and otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is entitled to take under this Indenture or the Securities.


 


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


 


(G)       None
of the Trustee or any Securities Agent shall have any responsibility for any actions taken or not taken by the Depositary.


 




    -17-


     

    

2.16       Special
Transfer Provisions.


 


(A)       Notwithstanding
any other provisions of this Indenture, but except as provided in Section ‎2.15(B), a Global Security may not
be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.


 


(B)       Upon
the transfer, exchange or replacement of Securities not bearing the Security Private Placement Legend, the Registrar or co-registrar
shall deliver Securities that do not bear the Security Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Security Private Placement Legend, the Registrar or co-registrar shall deliver only Securities that bear
the Security Private Placement Legend unless (i) the requested transfer is after the Resale Restriction Termination Date, (ii)
there is delivered to the Trustee and the Company an opinion of counsel reasonably satisfactory to the Company and addressed to
the Company to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act or (iii) such Security has been sold pursuant to an effective registration
statement under the Securities Act and the Holder selling such Securities has delivered to the Registrar or co-registrar a notice
in the form of Exhibit D hereto. Upon any sale or transfer of a beneficial interest in the Securities in connection with
which the Security Private Placement Legend will be removed in accordance with this Indenture, the Trustee shall increase the
principal amount of the Global Security that does not constitute a Restricted Security by the principal amount of such sale or
transfer and likewise reduce the principal amount of the Global Security that does constitute a Restricted Security.


 


(C)       By
its acceptance of any Security or share of Common Stock bearing the Security Private Placement Legend or the Common Stock Private
Placement Legend, as the case may be, each holder thereof acknowledges the restrictions on transfer of such security set forth
in this Indenture and in the Security Private Placement Legend or Common Stock Private Placement Legend, as applicable, and agrees
that it shall transfer such security only as provided in this Indenture and as permitted by applicable law.


 


The
Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section ‎2.15
or this Section ‎2.16. The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.


 


(D)       Any
Securities or shares of Common Stock issued upon the conversion of Securities that are purchased or owned by the Company or any
Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant
to an exemption from the registration requirements of the Securities Act in a transaction that results in such Securities or shares
of Common Stock, as the case may be, no longer being Restricted Securities.


 


(E)       The
Company may, to the extent permitted by law, repurchase the Securities in the open market or by tender offer at any price or by
private agreement without giving prior


 




    -18-


     

    

notice
to Holders. Securities surrendered to the Trustee for cancellation may not be reissued or resold and shall be promptly cancelled
pursuant to Section ‎2.11.


 


2.17       Restrictive
Legends.


 


(A)       Each
Global Security and Physical Security that constitutes a Restricted Security shall bear the legend (the “Security Private
Placement Legend”) as set forth in Exhibit B-1A on the face thereof until the later of (i) the date that is one
year after the last date of original issuance of such Securities, or such shorter period of time as permitted by Rule 144 under
the Securities Act or any successor provision thereto, and (ii) such later date, if any, as may be required by applicable law
(such date, the “Resale Restriction Termination Date”). Each certificate representing shares of Common Stock,
if any, issued upon conversion of any Security, shall, if such shares constitute Restricted Securities, shall bear the legend
(the “Common Stock Private Placement Legend”) as set forth in Exhibit B-1B on the face thereof until
the Resale Restriction Termination Date. In no event shall the Trustee or any Securities Agent (if other than the Company) be
responsible for determining or charged with knowledge of the Resale Restriction Termination Date. Upon request to remove any Security
Private Placement Legend, the Trustee and Registrar shall receive and conclusively rely upon an Opinion of Counsel from the Company.
The Company shall notify DTC of any such Resale Restriction Termination Date.


 


(B)       Each
Global Security shall also bear the legend as set forth in Exhibit B-2.


 


(C)       So
long as and to the extent that any Securities are represented by one or more Global Securities held by or on behalf of the Depositary
only, the Company may cause the removal of the Security Private Placement Legend from such Securities at any time on or after
the Resale Restriction Termination Date by:


 


(i)       providing
to the Trustee written notice stating that the Resale Restriction Termination Date has occurred and instructing the Trustee to
remove the Security Private Placement Legend from such Securities;


 


(ii)      providing
to the Holders of such Securities written notice that the Security Private Placement Legends have been removed or deemed removed;


 


(iii)     providing
to the Trustee and the Depositary written notice to change the CUSIP number for the Securities to the applicable unrestricted
CUSIP number; and


 


(iv)     complying
with any applicable procedures for delegending in accordance with Rule 144 under the Securities Act and applicable policies of
the SEC;


 


whereupon
the Security Private Placement Legends shall be removed from any Global Securities without any further action on the part of the
Holders.


 




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2.18       Ranking.


 


The
indebtedness of the Company arising under or in connection with this Indenture and every outstanding Security issued under this
Indenture from time to time constitutes and shall constitute a general unsubordinated obligation of the Company.


 


 


III.       NO
REDEMPTION; REPURCHASE


 


3.01       No
Redemption.


 


The
Securities shall not be redeemable by the Company prior to the Maturity Date, and no sinking fund is provided for the Securities.


 


3.02       Repurchase
at Option of Holder Upon a Fundamental Change.


 


(A)       If
a Fundamental Change occurs prior to the Maturity Date, each Holder of Securities shall have the right (the “Fundamental
Change Repurchase Right”), at such Holder’s option, to require the Company to repurchase (a “Repurchase
Upon Fundamental Change”) all of such Holder’s Securities (or any portion thereof in integral multiples of $1,000
in principal amount), on a date selected by the Company (the “Fundamental Change Repurchase Date”), which shall
be no later than thirty five (35) days, nor earlier than twenty (20) days, after the date the Fundamental Change Notice is mailed
(or otherwise delivered) in accordance with Section ‎3.02(B), at a price, payable in cash, equal to one hundred
percent (100%) of the principal amount of the Securities (or portions thereof) to be so repurchased, plus accrued and unpaid interest,
if any, to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
upon:


 


(i)       delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the
Fundamental Change Notice, no later than the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, of a Purchase Notice, in the form set forth in the Securities or any other form of written notice substantially
similar thereto, in each case, duly completed and signed, with appropriate signature guarantee, stating:


 


(a)       the
certificate numbers of the Securities that the Holder shall deliver to be repurchased, if such Securities are Physical Securities;


 


(b)       the
principal amount of Securities to be repurchased, which must be $1,000 or an integral multiple thereof; and


 


(c)       that
such principal amount of Securities are to be repurchased pursuant to the terms and conditions specified in this Section ‎3.02;
and


 




    -20-


     

    

(ii)       delivery
to the Company (if it is acting as its own Paying Agent), or to a Paying Agent designated by the Company for such purpose in the
Fundamental Change Notice, at any time after the delivery of such Purchase Notice, of such Securities (together with all necessary
endorsements) with respect to which the Fundamental Change Repurchase Right is being exercised;


 


provided,
however, that if such Fundamental Change Repurchase Date is after a Record Date for the payment of an installment of interest
and on or before the related Interest Payment Date, then the full amount of interest due on that Interest Payment Date shall be
payable on that Interest Payment Date to the Holder of record of such Securities at the close of business on such Record Date
(without any surrender of such Securities by such Holder), and the Fundamental Change Repurchase Price shall not include any accrued
but unpaid interest.


 


If
such Securities are in the form of Global Securities, the delivery of any Securities, Purchase Notice, Fundamental Change Notice
or notice of withdrawal pursuant to the second immediately succeeding paragraph shall comply with applicable procedures of the
Depositary.


 


Upon
delivery of any Physical Securities to the Company (if it is acting as its own Paying Agent) or such Paying Agent, such Holder
shall be entitled to receive, upon request, from the Company or such Paying Agent, as the case may be, a nontransferable receipt
of deposit evidencing such delivery.


 


Notwithstanding
anything herein to the contrary, any Holder that has delivered the Purchase Notice contemplated by this Section ‎3.02(A)
to the Company (if it is acting as its own Paying Agent) or to a Paying Agent designated by the Company for such purpose in
the Fundamental Change Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the close
of business on the Business Day immediately preceding the Fundamental Change Repurchase Date (or, if there shall be a Default
in the payment of the Fundamental Change Repurchase, at any time during which such Default is continuing), of a written notice
of withdrawal to the Company (if acting as its own Paying Agent) or the Paying Agent, which notice shall contain the information
specified in Section ‎3.02(B)(x).


 


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


 


(B)       Within
ten (10) days after the occurrence of a Fundamental Change, the Company shall deliver, or cause to be delivered, to all Holders
of the Securities in accordance with Section ‎13.01, and to beneficial owners as required by applicable law, a notice
(the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and the Fundamental Change Repurchase
Right arising as a result thereof. The Company shall deliver a copy of the Fundamental Change Notice to the Trustee and shall
publicly release such Fundamental Change Notice. Each Fundamental Change Notice shall state:


 


(i)         the
events causing the Fundamental Change;


 


(ii)        the
date of the Fundamental Change;


 


(iii)       the
Fundamental Change Repurchase Date;


 




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(iv)       the
last date on which a Holder may exercise the Fundamental Change Repurchase Right, which shall be the Business Day immediately
preceding the Fundamental Change Repurchase Date;


 


(v)        the
Fundamental Change Repurchase Price;


 


(vi)       the
names and addresses of the Paying Agent and the Conversion Agent;


 


(vii)      the
procedures that a Holder must follow to exercise the Fundamental Change Repurchase Right;


 


(viii)     that
the Fundamental Change Repurchase Price for any Security as to which a Purchase Notice has been given and not withdrawn shall
be paid as promptly as practicable, but in no event after the later of such Fundamental Change Repurchase Date and the time of
book-entry transfer or delivery of the Security (together with all necessary endorsements); provided, however, that
if such Fundamental Change Repurchase Date is after a Record Date for the payment of an installment of interest and on or before
the related Interest Payment Date, then the accrued and unpaid interest, if any, to, but excluding, such Interest Payment Date
shall be paid on such Interest Payment Date to the Holder of record of such Security at the close of business on such Record Date
(without any surrender of such Securities by such Holder) and the Fundamental Change Repurchase Price shall not include any accrued
and unpaid interest;


 


(ix)        that,
except as otherwise provided herein with respect to a Fundamental Change Repurchase Date that is after a Record Date for the payment
of an installment of interest and on or before the related Interest Payment Date, on and after such Fundamental Change Repurchase
Date (unless there shall be a Default in the payment of the Fundamental Change Repurchase Price), interest on Securities subject
to Repurchase Upon Fundamental Change shall cease to accrue, and all rights of the Holders of such Securities shall terminate,
other than the right to receive, in accordance herewith, the Fundamental Change Repurchase Price;


 


(x)         that
a Holder shall be entitled to withdraw its election in the Purchase Notice prior to the close of business on the Business Day
immediately preceding the Fundamental Change Repurchase Date, by means of a letter or telegram, telex or facsimile transmission
(receipt of which is confirmed and promptly followed by a letter) setting forth (I) the name of such Holder, (II) a statement
that such Holder is withdrawing its election to have Securities purchased by the Company on such Fundamental Change Repurchase
Date pursuant to a Repurchase Upon Fundamental Change, (III) the certificate numbers of such Securities to be so withdrawn, if
such Securities are Physical Securities, (IV) the principal amount of the Securities of such Holder to be so withdrawn, which
amount must be $1,000 or an integral multiple thereof and (V) the principal amount, if any, of the Securities of such Holder that
remain subject to the Purchase Notice delivered by such Holder in accordance with this Section ‎3.02, which
amount must be $1,000 or an integral multiple thereof; provided,


 




    -22-


     

    

however,
that if there shall be a Default in the payment of the Fundamental Change Repurchase Price, a Holder shall be entitled to withdraw
its election in the Purchase Notice at any time during which such Default is continuing;


 


(xi)        the
Conversion Rate and any adjustments to the Conversion Rate that will result from such Fundamental Change;


 


(xii)       that
Securities with respect to which a Purchase Notice is given by a Holder may be converted pursuant to Article ‎X,
if otherwise convertible, only if such Purchase Notice has been withdrawn in accordance with this Section ‎3.02;
and


 


(xiii)      the
CUSIP number or numbers, as the case may be, of the Securities.


 


At
the Company’s request, upon prior notice reasonably acceptable to the Trustee, the Trustee shall deliver such Fundamental
Change Notice in the Company’s name and at the Company’s expense; provided, however, that the form and
content of such Fundamental Change Notice shall be prepared by the Company.


 


No
failure of the Company to give a Fundamental Change Notice shall limit any Holder’s right pursuant hereto to exercise a
Fundamental Change Repurchase Right.


 


(C)       Subject
to the provisions of this Section ‎3.02, the Company shall pay, or cause to be paid, the Fundamental Change
Repurchase Price with respect to each Security as to which the Fundamental Change Repurchase Right shall have been exercised to
the Holder thereof as promptly as practicable, but in no event later than the later of the Fundamental Change Repurchase Date
and the time of book-entry transfer or when such Security is surrendered to the Paying Agent (together with all necessary endorsements);
provided, however, that if such Fundamental Change Repurchase Date is after a Record Date for the payment of an
installment of interest and on or before the related Interest Payment Date, then the accrued and unpaid interest, if any, to,
but excluding, such Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security
at the close of business on such Record Date and the Fundamental Change Repurchase Price shall not include any accrued and unpaid
interest.


 


(D)       The
Company shall, in accordance with Section ‎2.14, deposit with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust in accordance with Section ‎2.04) money, in funds immediately
available on the Fundamental Change Repurchase Date, sufficient to pay the Fundamental Change Repurchase Price upon Repurchase
Upon Fundamental Change for all of the Securities that are to be repurchased by the Company on such Fundamental Change Repurchase
Date pursuant to a Repurchase Upon Fundamental Change. The Paying Agent shall return to the Company, as soon as practicable, any
money not required for that purpose.


 


(E)       Once
the Fundamental Change Notice and the Purchase Notice have been duly given in accordance with this Section ‎3.02,
the Securities to be repurchased pursuant to a Repurchase Upon Fundamental Change shall, on the Fundamental Change Repurchase
Date, become due and payable in accordance herewith, and, on and after such date (unless there shall be a Default in the payment
of the Fundamental Change Repurchase Price), except as otherwise


 




    -23-


     

    

provided
herein with respect to a Fundamental Change Repurchase Date that is after a Record Date for the payment of an installment of interest
and on or before the related Interest Payment Date, such Securities shall cease to bear interest (whether or not book-entry transfer
of the Securities has been made or the Securities have been delivered to the Paying Agent), and all rights of the relevant Holders
of such Securities shall terminate, other than the right to receive, in accordance herewith, such consideration and any other
applicable rights under those sections set forth in the proviso in Section ‎8.01.


 


(F)       Securities
with respect to which a Purchase Notice has been duly delivered in accordance with this Section ‎3.02 may be
converted pursuant to Article ‎X, if otherwise convertible, only if such Purchase Notice has been withdrawn
in accordance with this Section ‎3.02.


 


(G)       If
any Security shall not be paid upon book-entry transfer or surrender thereof for Repurchase Upon Fundamental Change, the principal
of, and accrued and unpaid interest on, such Security shall, until paid, bear interest, payable in cash, at the rate borne by
such Security on the principal amount of such Security, and such Security shall be convertible pursuant to Article ‎X
if any Purchase Notice with respect to such Security is withdrawn pursuant to this Section ‎3.02.


 


(H)       Any
Security that is to be submitted for Repurchase Upon Fundamental Change only in part shall be delivered pursuant to this Section
‎3.02 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing,
with a medallion guarantee), and the Company shall promptly execute, and the Trustee shall promptly authenticate and make available
for delivery to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination
as requested by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such Security not duly
submitted for Repurchase Upon Fundamental Change.


 


(I)       Notwithstanding
anything herein to the contrary, except in the case of an acceleration resulting from a Default by the Company in the payment
of the Fundamental Change Repurchase Price, there shall be no purchase of any Securities pursuant to this Section ‎3.02
on any date if, on such date, the principal amount of the Securities shall have been accelerated in accordance with this Indenture
and such acceleration shall not have been rescinded on or prior to such date in accordance with this Indenture. The Paying Agent
shall promptly return to the respective Holders thereof any Securities held by it during the continuance of such an acceleration.


 


(J)       In
connection with any Repurchase Upon Fundamental Change, the Company shall, to the extent applicable (i) comply with the provisions
of Rule 13e-4 and Regulation 14E under the Exchange Act and all other applicable laws; (ii) file a Schedule TO or any other schedules
required under the Exchange Act or any other applicable laws; and (iii) otherwise comply with all applicable United States federal
and state securities laws in connection with any offer by the Company to purchase the Securities.


 




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(K)       To
the extent the Securities are held through the Depositary, notices to Holders may be transmitted electronically in order to comply
with the Depositary’s procedures and need not be mailed.


 


(L)       Notwithstanding
the foregoing provisions of this Section ‎3.02, the Company shall not be required to issue a Fundamental Change
Notice upon a Fundamental Change (i) if another Person issues a Fundamental Change Notice in the manner, at the times and otherwise
in compliance with the requirements set forth in Section ‎3.02(B) applicable to a Fundamental Change Notice
made by the Company and otherwise complies with the provisions of this Section ‎3.02 as if it were the Company,
and (ii) purchases and pays for all Securities validly tendered and not withdrawn pursuant to such Fundamental Change Notice.


 


 


IV.       COVENANTS


 


4.01       Payment
of Securities.


 


The
Company shall pay all amounts due with respect to the Securities on the dates and in the manner provided in the Securities and
this Indenture. All such amounts shall be considered paid on the date due if the Paying Agent holds (or, if the Company is acting
as Paying Agent, the Company has segregated and holds in trust in accordance with Section ‎2.04) on that date
money sufficient to pay the amount then due with respect to the Securities (unless there shall be a Default in the payment of
such amounts to the respective Holder(s)). The Company shall pay, in money of the United States that at the time of payment is
legal tender for payment of public and private debts, all amounts due in cash with respect to the Securities, which amounts shall
be paid (A) in the case of a Global Security, by wire transfer of immediately available funds to the account designated by the
Depositary or its nominee; (B) in the case of a Physical Security by a Holder of more than five million dollars ($5,000,000) in
aggregate principal amount of Securities, by wire transfer of immediately available funds to the account specified by such Holder
or, if such Holder does not specify an account, by mailing a check to the address of such Holder set forth in the register of
the Registrar; and (C) in the case of a Physical Security that is held by a Holder of five million dollars ($5,000,000) or less
in aggregate principal amount of Securities, by mailing a check to the address of such Holder set forth in the register of the
Registrar.


 


The
Company shall pay, in cash, interest on any overdue amount (including the Fundamental Change Repurchase Price, principal and,
to the extent permitted by applicable law, overdue interest) at the rate borne by the Securities.


 


4.02       Maintenance
of Office or Agency.


 


The
Company shall maintain, or cause to be maintained, an office or agency located in the United States (which may be an office of
the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Securities may be surrendered for registration of
transfer or exchange, payment or conversion. The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company shall fail to maintain, or fail to cause to maintain,
any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders
may be made


 




    -25-


     

    

or
served at the Corporate Trust Office of the Trustee. The Company shall maintain, or cause to be maintained, in the United States,
an office or agency where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served,
provided that, unless otherwise designated by written notice to the Trustee, such office or agency shall be at the principal
office of the Company located in the United States.


 


The
Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United
States, for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


The
Company hereby designates the Corporate Trust Office of the Trustee as an agency of the Company in accordance with Section
‎2.03.


 


4.03       Rule
144A Information and Annual Reports.


 


(A)       At
any time when the Company is not subject to the reporting requirements of the Exchange Act, the Company shall promptly provide
to the Trustee and shall, upon request, provide to any Holder, beneficial owner or prospective purchaser of Securities or any
shares of Common Stock issued upon conversion of any Securities, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act to facilitate the resale of such Securities or shares of Common Stock pursuant to Rule 144A. The Company
shall take such further action as any Holder or beneficial holder of such Securities or shares of Common Stock may reasonably
request in writing to the extent required from time to time to enable such Holder or beneficial holder to sell its Securities
or shares of Common Stock in accordance with Rule 144A, as such rule may be amended from time to time.


 


(B)       The
Company shall deliver to the Trustee, no later than the time such report is required to be filed with the SEC pursuant to the
Exchange Act, a copy of each report the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act (after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act); provided, however,
that each such report shall be deemed to be so delivered to the Trustee if the Company files such report with the SEC through
the SEC’s EDGAR database no later than the time such report is required to be filed with the SEC pursuant to the Exchange
Act (taking into account any applicable grace periods provided thereunder).


 


(C)       The
Company shall promptly furnish to the Trustee copies of its annual report to stockholders, containing audited financial statements,
and any other financial reports that it furnishes to its stockholders.


 


(D)       Delivery
of such reports, information and documents to the Trustee pursuant to this Section ‎4.03 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


 




    -26-


     

    

information
contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on an Officer’s Certificates).


 


4.04       Compliance
Certificate.


 


The
Company shall deliver to the Trustee, within one hundred twenty (120) calendar days after the end of each fiscal year of
the Company, a certificate of two (2) or more Officers stating whether or not the signatories to such Officer’s Certificate
have actual knowledge of any Default or Event of Default by the Company in performing any of its obligations under this Indenture
or the Securities. If such signatories do know of any such Default or Event of Default, then such certificate shall describe the
Default or Event of Default and its status.


 


4.05       Stay,
Extension and Usury Laws.


 


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


 


4.06       Corporate
Existence.


 


Subject
to Article ‎V, the Company will do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, in accordance with its organizational documents, and the rights (charter and statutory) of
the Company; provided, however, that the Company shall not be required to preserve any such right if in the good
faith judgment of the Board of Directors such preservation or existence is no longer necessary for the conduct of business of
the Company.


 


4.07       Notice
of Default.


 


Upon
the Company becoming aware of the occurrence of any Default or Event of Default, the Company shall give prompt written notice
of such Default or Event of Default, and any remedial action proposed to be taken, to the Trustee.


 


4.08       Further
Instruments and Acts.


 


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


 


4.09       Additional
Interest.


 


(A)       If,
at any time during the six-month period beginning on, and including, the date that is six months after the last date of original
issuance of the Securities, the Company fails to


 




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timely
file any document or report that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, as applicable (after giving effect to all applicable grace periods thereunder and other than current reports on Form 8-K),
or the Securities are not otherwise freely tradable by Holders, other than the Company’s Affiliates (as a result of restrictions
pursuant to U.S. securities law or the terms of this Indenture or the Securities), the Company shall pay Additional Interest on
the Securities at a rate of 0.50% per annum of the principal amount of Securities outstanding for each day during such period
for which the Company’s failure to file has occurred and is continuing or the Securities are not otherwise freely tradable
by Holders, other than the Company’s Affiliates.


 


(B)
       If, and for so long as, the Security Private Placement Legend has not been removed from
the Securities in accordance with Section ‎2.16(B)
or Section ‎2.17,
the Securities are assigned a restricted CUSIP number or the Securities are not otherwise freely tradable by Holders other than
the Company’s Affiliates (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Securities),
as of the 365th day after the last date of original issuance of the Securities, the Company shall pay Additional Interest on the
Securities at a rate of 0.50% per annum of the principal amount of Securities outstanding for each day after the 365th day after
the last date of original issuance of the Securities until (i) the Security Private Placement Legend has been removed in accordance
with Section ‎2.16(B)
or Section ‎2.17,
(ii) the Securities are assigned an unrestricted CUSIP number and (iii) the Securities are otherwise freely tradable by Holders
other than the Company’s Affiliates (without restrictions pursuant to U.S. securities law or the terms of this Indenture
or the Securities).


 


(C)
       Additional Interest payable in accordance with Sections ‎4.09‎(A)
and ‎4.09‎(B) shall be payable in arrears on each Interest Payment Date for the Securities following
accrual in the same manner as regular interest on the Securities and shall be in addition to, not in lieu of, any Additional Interest
that may accrue under Section ‎6.02(B) as the sole remedy relating to the Company’s failure to comply
with Section ‎4.03(B).


 


(D)       In
the event that the Company is required to pay Additional Interest to Holders of Securities (whether pursuant to this Section
‎4.09 or Section ‎6.02(B)), the Company shall provide written notice (“Additional Interest
Notice”) to the Trustee of its obligation to pay Additional Interest no later than fifteen (15) calendar days (or such
shorter period as may be acceptable to the Trustee) prior to the proposed payment date for the Additional Interest. Each Additional
Interest Notice shall set forth the amount of Additional Interest to be paid by the Company on such payment date. The Trustee
shall not at any time be under any duty or responsibility to any Holder to determine the amount of Additional Interest, or with
respect to the nature, extent or calculation of the amount of Additional Interest owed, or with respect to the method employed
in such calculation of the Additional Interest.


 


 


V.       SUCCESSORS


 


5.01       When
Company May Merge, etc.


 


The
Company shall not consolidate with, or merge with or into, or sell, transfer, lease, convey or otherwise dispose of all or substantially
all of the consolidated property or assets of


 




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the
Company to another Person, whether in a single transaction or series of related transactions, unless (i) the Company is the continuing
corporation or the resulting, surviving or transferee Person (if not the Company) is a corporation organized and existing under
the laws of the United States of America, any state of the United States of America or the District of Columbia, and such Person
(if not the Company) assumes by supplemental indenture all of the obligations of the Company under the Securities and this Indenture
and (ii) immediately after giving effect to such transaction or series of transactions, no Default or Event of Default shall
exist.


 


For
purposes of this Section ‎5.01, the sale, transfer, lease, conveyance or other disposition of all or substantially
all of the properties or assets of one or more Subsidiaries of the Company to another Person, which properties or assets, if held
by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties or assets of the Company
on a consolidated basis, shall be deemed to be the sale, transfer, lease, conveyance or other disposition of all or substantially
all of the consolidated properties or assets of the Company to another Person.


 


The
Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officer’s Certificate to the
foregoing effect and an Opinion of Counsel (which may rely upon such Officer’s Certificate as to the absence of Defaults
and Events of Default) stating that the proposed transaction and such supplemental indenture shall, upon consummation of the proposed
transaction, comply with this Indenture.


 


5.02       Successor
Substituted.


 


In
case of any such consolidation, merger or any sale, transfer, conveyance or other disposition (but not any lease) of all or substantially
all of the consolidated property or assets of the Company and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal
of and accrued and unpaid interest on all of the Securities, the due and punctual payment of the Fundamental Change Repurchase
Price with respect to all Securities repurchased on each Fundamental Change Repurchase Date, the due and punctual delivery or
payment, as the case may be, of any consideration due upon conversion of the Securities and the due and punctual performance of
all of the covenants and conditions of this Indenture and the Securities to be performed by the Company, such successor Person
shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first
part.  Such successor Person thereupon may cause to be signed, and may issue either in its own name or in the name of the
Company any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered
to the Trustee; and, upon the order of such successor Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered,
any Securities that previously shall have been signed and delivered by the Officers of the Company to the Trustee for authentication,
and any Securities that such successor Person thereafter shall cause to be signed and delivered to the Trustee for that purpose. 
All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued
at the date of the execution hereof.  In the event of any such consolidation,


 




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merger
or any sale, transfer, conveyance or other disposition (but not in the case of a lease), upon compliance with this Article
‎V the Person named as the “Company” in the first paragraph of this Indenture or any successor that
shall thereafter have become such in the manner prescribed in this Article ‎V may be dissolved, wound up and
liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor
and maker of the Securities and its obligations under this Indenture shall terminate.


 


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


 


 


VI.       
DEFAULTS AND REMEDIES


 


6.01       Events
of Default.


 


An
“Event of Default” occurs if:


 


(i)         the
Company fails to pay the principal or the Fundamental Change Repurchase Price of any Security when the same becomes due and payable,
whether on the Maturity Date, on a Fundamental Change Repurchase Date with respect to a Fundamental Change, upon acceleration
or otherwise;


 


(ii)        the
Company fails to pay an installment of interest on any Security when due, if such failure continues for thirty (30) days after
the date when due;


 


(iii)       the
Company fails to comply with its conversion obligations to deliver the consideration due upon exercise of a Holder’s conversion
right pursuant hereto;


 


(iv)       the
Company fails to timely provide notice pursuant to, and in accordance with, Section ‎3.02(B), Section ‎10.01(B)(iii),
Section ‎10.01(B)(iv) or Section ‎10.15(E);


 


(v)        the
Company fails to comply with its obligations under Article ‎V;


 


(vi)       the
Company fails to comply with any other term, covenant or agreement contained in the Securities or this Indenture and such failure
continues for the period, and after the notice, specified in the last paragraph of this Section ‎6.01;


 


(vii)      the
Company or any of its Subsidiaries defaults in the payment in an aggregate amount of ten million dollars ($10,000,000) or more
when due, after the expiration of any applicable grace period, of principal of, or premium, if any, on, indebtedness for money
borrowed, or acceleration of the indebtedness of the Company or any of its Subsidiaries for money borrowed in an aggregate principal
amount of ten million dollars ($10,000,000) or more so that it becomes due and payable before the date on which it would otherwise
become due and payable and such default is not cured or waived, or such acceleration is not rescinded for the period, and after
the notice, specified in the last paragraph of this Section ‎6.01;


 




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(viii)     the
Company or any of its Subsidiaries fails, within thirty (30) days, to pay, bond or otherwise discharge any final, non-appealable
judgments or orders for the payment of money the total uninsured amount of which for the Company or any of its Subsidiaries exceeds
ten million dollars ($10,000,000), which are not stayed on appeal;


 


(ix)       the
Company or any of its Significant Subsidiaries or any group of Subsidiaries that in the aggregate would constitute a Significant
Subsidiary of the Company, pursuant to, or within the meaning of, any Bankruptcy Law, insolvency law, or other similar law now
or hereafter in effect or otherwise, either:


 


(A)       commences
a voluntary case,


 


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


 


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


 


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


 


(x)       a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(A)       is
for relief against the Company or any of its Significant Subsidiaries or any group of Subsidiaries that in the aggregate would
constitute a Significant Subsidiary of the Company in an involuntary case or proceeding, or adjudicates the Company or any of
its Significant Subsidiaries or any group of Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the
Company insolvent or bankrupt,


 


(B)       appoints
a Custodian of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that in the aggregate would constitute
a Significant Subsidiary of the Company for all or substantially all of the consolidated property of the Company or any such Significant
Subsidiary or any group of Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the Company, as the
case may be, or


 


(C)       orders
the winding up or liquidation of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that in the aggregate
would constitute a Significant Subsidiary of the Company,


 


and,
in the case of each of the foregoing clauses ‎(A), ‎(B) and ‎(C) of this Section ‎6.01(x),
the order or decree remains unstayed and in effect for at least sixty (60) consecutive days.


 


The
term “Bankruptcy Law” means Title 11, U.S. Code or any similar U.S. Federal or State law for the relief of
debtors, or any analogous foreign law applicable to the Company or its


 




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Subsidiaries,
as the case may be. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official
under any Bankruptcy Law.


 


A
Default under clause ‎(vi) or ‎(vii) above shall not be an Event of Default until (I) the Trustee
notifies the Company, or the Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then
outstanding notify the Company and the Trustee in writing, of the Default and (II) the Default is not cured within sixty (60)
days in the case of clause ‎(vi), or within thirty (30) days in the case of clause ‎(vii),
after receipt of such notice. Such notice must specify the Default, demand that it be remedied and state that the notice is a
“Notice of Default.” If the Holders of at least twenty five percent (25%) in aggregate principal amount of
the outstanding Securities request the Trustee to give such notice on their behalf, the Trustee shall do so. When a Default is
cured, it ceases to exist for all purposes under this Indenture.


 


6.02       Acceleration.


 


(A)       If
an Event of Default (excluding an Event of Default specified in Section ‎6.01(ix) or ‎6.01(x) with
respect to the Company, but including an Event of Default specified in Section ‎6.01(ix) or ‎6.01(x)
solely with respect to a Significant Subsidiary of the Company or any group of Subsidiaries that in the aggregate would constitute
a Significant Subsidiary of the Company) has occurred and is continuing, either the Trustee by notice to the Company, or the Holders
of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding by notice to the Company
and the Trustee, may declare the Securities to be immediately due and payable in full. Upon such declaration, the principal of,
and any accrued and unpaid interest on, all Securities shall be due and payable immediately. If an Event of Default specified
in Section ‎6.01(ix) or ‎6.01(x) with respect to the Company (excluding, for purposes of this sentence,
an Event of Default specified in Section ‎6.01(ix) or ‎6.01(x) solely with respect to a Significant
Subsidiary of the Company or any group of Subsidiaries that in the aggregate would constitute a Significant Subsidiary of the
Company) occurs, the principal of, and accrued and unpaid interest on, all the Securities 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 Securities then outstanding by written notice to the Trustee may rescind or annul an acceleration and
its consequences if (A) the rescission would not conflict with any order or decree, (B) all existing Events of Default, except
the non-payment of principal or interest that has become due solely because of the acceleration, have been cured or waived and
(C) all amounts due to the Trustee under Section ‎7.07 have been paid.


 


(B)       Notwithstanding
the foregoing, the sole remedy for an Event of Default relating to failure to comply with Section ‎4.03(B) shall,
for the first 180 days immediately following the occurrence of such an Event of Default, consist exclusively of the right to receive
Additional Interest on the Securities at a rate per year equal to (i) 0.25% of the outstanding principal amount of Securities
for each day during the ninety (90) day period following, and including, the occurrence of such Event of Default during which
such Event of Default continues and (ii) 0.50% of the outstanding principal amount of Securities for each day during the
ninety (90) day period beginning on, and including, the ninety-first (91st) day following the occurrence of such Event
of Default during which such Event of Default continues, in each case, payable in the


 




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same
manner and at the same time as the stated interest payable on the Securities. Such Additional Interest shall accrue on all outstanding
Securities from, and including, the date on which such Event of Default first occurs to, and including, the 180th day thereafter
(or such earlier date on which such Event of Default shall have been cured or waived). Additional Interest payable pursuant to
this Section ‎6.02(B) shall be in addition to, not in lieu of, any Additional Interest payable pursuant
to Section ‎4.09(A) and Section ‎4.09(B). In addition to the accrual of Additional Interest
pursuant to this Section ‎6.02(B), on and after the 181st day immediately following an Event of Default
relating to a failure to comply with Section ‎4.03(B), such Additional Interest shall cease to accrue and, if
such Event of Default has not been cured or waived prior to such 181st day, the Securities shall be subject to acceleration as
provided above. The provisions of this Section ‎6.02(B) shall not affect the rights of Holders in the event
of the occurrence of any other Event of Default.


 


6.03       Other
Remedies.


 


Notwithstanding
any other provision of this Indenture, if an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of amounts due with respect to the Securities or to enforce the performance
of any provision of the Securities or this Indenture.


 


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


 


6.04       Waiver
of Past Defaults.


 


Subject
to Sections ‎6.07 and ‎9.02, the Holders of a majority in aggregate principal amount of the Securities
then outstanding may, by notice to the Trustee, waive any past Default or Event of Default and its consequences, other than a
Default or Event of Default (A) in the payment of the principal of, or interest on, any Security, or in the payment of the Fundamental
Change Repurchase Price, (B) arising from a failure by the Company to convert any Securities in accordance with this Indenture
or (C) in respect of any provision of this Indenture or the Securities which, under Section ‎9.02, cannot be
modified or amended without the consent of the Holder of each outstanding Security affected. When a Default or an Event of Default
is waived, it is cured and ceases to exist for all purposes under this Indenture.


 


6.05       Control
by Majority.


 


The
Holders of a majority in aggregate principal amount of the Securities then outstanding may 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 it. However, the
Trustee may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other
Holders or would involve the Trustee in personal liability unless the Trustee is offered indemnity reasonably satisfactory to
it; provided that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such
direction.


 




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6.06       Limitation
on Suits.


 


Except
with respect to any proceeding instituted in accordance with Section ‎6.07, a Holder shall not have any right
to institute any proceeding under this Indenture, or for the appointment of a receiver or a trustee, or for any other remedy under
this Indenture unless:


 


(i)       the
Holder gives to the Trustee written notice of a continuing Event of Default;


 


(ii)      the
Holders of at least twenty five percent (25%) in aggregate principal amount of the Securities then outstanding make a written
request to the Trustee to pursue the remedy;


 


(iii)     the
Holder or Holders offer and, if requested, provide the Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense to or of the Trustee in connection with pursuing such remedy; and


 


(iv)     the
Trustee fails to comply with the request within sixty (60) days after receipt of such notice, request and offer of indemnity,
and during such sixty (60) day period, the Holders of a majority in aggregate principal amount of the Securities then outstanding
do not give the Trustee a direction that is inconsistent with the request.


 


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


 


6.07       Rights
of Holders to Receive Payment and to Convert Securities.


 


Notwithstanding
any other provision of this Indenture, the right of any Holder to receive payment of all amounts (including any principal, interest
or the Fundamental Change Repurchase Price) due with respect to the Securities, on or after the respective due dates as provided
herein, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.


 


In
addition, notwithstanding any other provision of this Indenture, the right of any Holder to convert the Security in accordance
with this Indenture and to receive the consideration due upon conversion, or to bring suit for the enforcement of such rights,
shall not be impaired or affected without the consent of the Holder.


 


6.08       Collection
Suit by Trustee.


 


If
an Event of Default specified in Section ‎6.01‎(i) or ‎6.01(ii) has occurred and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount due
with respect to the Securities, including any unpaid and accrued interest.


 




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6.09       Trustee
May File Proofs of Claim.


 


The
Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims
of the Trustee, any predecessor Trustee and the Holders allowed in any judicial proceedings relative to the Company or its creditors
or properties.


 


The
Trustee may collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section ‎7.07.


 


Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities 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.


 


6.10       Priorities.


 


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


 


		First:	to
                                         the Trustee for amounts due under Section ‎7.07;



 


		Second:	to
                                         Holders for all amounts due and unpaid on the Securities, without preference or priority
                                         of any kind, according to the amounts due and payable on the Securities; and



 


		Third:	the
                                         balance, if any, to the Company.



 


The
Trustee, upon prior written notice to the Company, may fix a record date and payment date for any payment by it to Holders pursuant
to this Section ‎6.10. At least fifteen (15) days before each such record date, the Trustee shall deliver to
each Holder and the Company a written notice that states such record date and payment date and the amount of such payment.


 


6.11       Undertaking
for Costs.


 


In
any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit other than the
Trustee of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section ‎6.11 does not


 




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apply
to a suit by the Trustee, a suit by a Holder pursuant to Section ‎6.07 or a suit by Holders of more than ten
percent (10%) in aggregate principal amount of the outstanding Securities.


 


VII.       TRUSTEE


 


7.01       Duties
of Trustee.


 


(A)       If
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances
in the conduct of his or her own affairs.


 


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


 


(i)       the
Trustee need perform only those duties that are specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and


 


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


 


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


 


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


 


(ii)      the
Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section ‎6.05; and


 


(iii)       this
subsection ‎(C) shall not be construed to limit the effect of subsection ‎(B) of this Section ‎7.01.


 


(D)       Every
provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Section ‎7.01.


 


(E)       The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee shall be


 




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segregated
from other funds as directed in writing by the Company or as required by law and shall be invested by the Trustee pursuant to
the written instructions of the Company reasonably satisfactory to the Trustee.


 


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


 


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


 


7.02       Rights
of Trustee.


 


(A)       Subject
to Section ‎7.01, the Trustee may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document; if,
however, the Trustee shall determine to make such further inquiry or investigation, it shall be entitled during normal business
hours to examine the relevant books, records and premises of the Company, personally or by agent or attorney upon reasonable prior
notice, at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry
or investigation.


 


(B)       Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or
Opinion of Counsel.


 


(C)       Any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Order, and any resolution of
the Board of Directors shall be sufficiently evidenced by a Board Resolution.


 


(D)       The
Trustee may consult with counsel of its own selection, and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.


 


(E)       The
Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.


 


(F)       The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within
its discretion, rights or powers conferred upon it by this Indenture.


 


(G)       The
Trustee shall have no duty to inquire as to the performance of the Company with respect to the covenants contained in Article
‎IV. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except any Default or
Event of Default of which a Responsible Officer of the Trustee shall have received at its Corporate Trust Office


 




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written
notification of a default that is in fact a Default, and such notice references the Securities and this Indenture. Delivery of
reports, information and documents to the Trustee under Article ‎IV (other than Sections ‎4.04
and ‎4.07) is for informational purposes only and the Trustee’s receipt of the foregoing 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 rely on Officer’s Certificates).


 


(H)       The
Trustee shall be under no obligation to exercise any of the rights or powers vested by this Indenture at the request or demand
of any of the Holders pursuant to this Indenture unless such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such
request or demand.


 


(I)       
The rights, privileges, protections, immunities and benefits given to the Trustee, including without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder.


 


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


 


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


 


7.03       Individual
Rights of Trustee.


 


The
Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights the Trustee would have if it were not Trustee. Any Securities Agent may
do the same with like rights. The Trustee, however, must comply with Sections ‎7.10 and ‎7.11. 


 


7.04       Trustee’s
Disclaimer.


 


The
recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities; the Trustee shall not be accountable for the Company’s
use of the proceeds from the Securities; and the Trustee shall not be responsible for any statement in the Securities other than
its certificate of authentication.


 




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7.05       Notice
of Defaults.


 


If
a Default or Event of Default occurs and is continuing as to which the Trustee has received notice pursuant to the provisions
of this Indenture, then the Trustee shall mail to each Holder a notice of the Default or Event of Default within thirty (30) days
after receipt of such notice, unless such Default or Event of Default has been cured or waived; provided, however,
that, except in the case of a Default or Event of Default in payment or delivery of any amounts due (including principal, interest,
the Fundamental Change Repurchase Price or the consideration due upon conversion) with respect to any Security, the Trustee may
withhold such notice if, and so long as it in good faith determines that, withholding such notice is in the best interests of
the Holders.


 


7.06       Reports
by Trustee to Holders


 


Within
sixty (60) days after each November 1, beginning with November 1, 2017, the Trustee shall mail to each Holder if required by TIA
§ 313(a) a brief report dated as of such November 1 that complies with TIA § 313(a). In such event, the Trustee also
shall comply with TIA § 313(b).


 


A
copy of each report at the time of its mailing to Holders shall be mailed by first class mail to the Company and filed by the
Trustee with the SEC and each stock exchange, if any, on which the Securities are listed. The Company shall promptly notify the
Trustee of the listing or delisting of the Securities on or from any stock exchange.


 


7.07       Compensation
and Indemnity.


 


The
Company shall pay to the Trustee from time to time such compensation for its services as shall be agreed upon in writing. The
Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it pursuant to, and in accordance with,
any provision hereof. Such expenses shall include the reasonable compensation and out-of-pocket expenses of the Trustee’s
agents and counsel.


 


The
Company shall indemnify each of the Trustee, each predecessor Trustee (which, for purposes of this Section ‎7.07 shall include
their respective officers, directors and employees) and their respective agents for, and hold each of them harmless against, any
and all loss, liability, damage, claim or expense (including the reasonable fees and expenses of counsel and taxes other than
those based upon the income of the Trustee) incurred by it in connection with the acceptance or administration of this trust and
the performance of its duties hereunder or in connection with enforcing the provisions of this Section ‎7.07,
including the reasonable costs and expenses of defending itself against any claim (whether asserted by the Company, any Holder
or any other Person) or liability in connection with the exercise or performance of any of its powers and duties hereunder. The
Company need not pay for any settlement made without its consent, which shall not be unreasonably withheld. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnification. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company need not reimburse any expense or indemnify against any
loss or liability that shall be determined to have


 




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been
caused by the Trustee through the Trustee’s own negligence, bad faith or willful misconduct.


 


To
secure the Company’s payment obligations in this Section ‎7.07, the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee, except that held in trust to pay amounts due on particular
Securities.


 


The
indemnity obligations of the Company with respect to the Trustee provided for in this Section ‎7.07, shall survive
any resignation or removal of the Trustee and termination of this Indenture.


 


When
the Trustee incurs expenses or renders services after an Event of Default specified in Section ‎6.01(ix) or
‎(x) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration
under any Bankruptcy Law.


 


The
Company shall pay compensation to, reimburse expenses of and indemnify each Paying Agent, Registrar, Conversion Agent and Custodian
in accordance with Section ‎7.07.


 


7.08       Replacement
of Trustee.


 


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


 


The
Trustee may resign by so notifying the Company in writing thirty (30) days prior to such resignation. The Holders of a majority
in aggregate principal amount of the Securities then outstanding may remove the Trustee by so notifying the Trustee and the Company
in writing and may appoint a successor Trustee with the Company’s consent. The Company may remove the Trustee if:


 


		(i)	the Trustee fails to comply
with Section ‎7.10;



 


		(ii)	the Trustee is adjudged
a bankrupt or an insolvent;



 


		(iii)	a receiver or other public
officer takes charge of the Trustee or its property; or



 


		(iv)	the Trustee becomes incapable
of acting.



 


If
the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint
a successor Trustee.


 


If
a successor Trustee does not take office within thirty (30) days after the retiring Trustee resigns or is removed, the retiring
Trustee (at the Company’s expense), the Company or the Holders of at least ten percent (10%) in aggregate principal amount
of the outstanding Securities may petition any court of competent jurisdiction for the appointment of a successor Trustee.


 




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If
the Trustee fails to comply with Section ‎7.10, the Company or any Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.


 


A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon
the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders.
The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section ‎7.07.


 


7.09       Successor
Trustee by Merger, etc.


 


If
the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business
to, another corporation, the successor corporation without any further act shall be the successor Trustee, if such successor corporation
is otherwise eligible (i) hereunder and (ii) under the TIA.


 


7.10       Eligibility;
Disqualification.


 


There
shall at all times be a Trustee hereunder that (A) is an entity organized and doing business under the laws of the United States
of America or of any state thereof or the District of Columbia, (B) is authorized under such laws to exercise corporate trustee
power, (C) is subject to supervision or examination by federal or state authorities and (D) has a combined capital and surplus
of at least $50 million as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA
§ 310(b). Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA § 310(b).


 


7.11       Preferential
Collection of Claims Against Company.


 


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


  


VIII.       DISCHARGE
OF INDENTURE


 


8.01       Termination
of the Obligations of the Company.


 


This
Indenture shall cease to be of further effect, and the Trustee shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, if (a) either (i) all outstanding Securities (other than Securities replaced pursuant to Section
‎2.07) have been delivered to the Trustee for cancellation or (ii) all outstanding Securities have become due and
payable on the Maturity Date, upon conversion or upon Repurchase Upon Fundamental Change, and in either case the Company irrevocably
deposits, prior to the applicable due date, with the Trustee or the Paying Agent (if the Paying Agent is not the Company or any
of its Affiliates) cash or, in the case of conversion, cash or cash and/or shares of Common Stock, as applicable,


 




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sufficient
to pay all amounts due on all outstanding Securities (other than Securities replaced pursuant to Section ‎2.07)
on the Maturity Date, the relevant settlement date of any conversion or the Fundamental Change Repurchase Date, as the case may
be; (b) the Company pays to the Trustee all other sums payable hereunder by the Company; (c) no Default or Event of Default with
respect to the Securities shall exist on the date of such deposit under clause (a)(ii) above; (d) such deposit under
clause (a)(ii) above shall not result in a breach or violation of, or constitute a Default or Event of Default under, this
Indenture; and (e) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied
with; provided, however, that Sections ‎2.02, ‎2.03, ‎2.04, ‎2.05,
‎2.06, ‎2.07, ‎2.08, ‎2.09, ‎2.15, ‎2.16, ‎2.17,
‎3.02, ‎4.01, ‎4.02, ‎4.05, ‎4.09, ‎7.07, ‎7.08,
‎7.09, ‎7.10, ‎7.11, ‎13.01, ‎13.08 and ‎13.13 and Articles
‎VIII, ‎X, ‎XI and ‎XII shall survive any discharge of this Indenture until such
time as the Securities have been paid in full and there are no Securities outstanding.


 


8.02       Application
of Trust Money.


 


The
Trustee shall hold in trust all money deposited with it pursuant to Section ‎8.01 and shall apply such deposited
money through the Paying Agent and in accordance with this Indenture to the payment of amounts due on the Securities.


 


8.03       Repayment
to Company.


 


The
Trustee and the Paying Agent shall promptly notify the Company of, and pay to the Company upon the request of the Company, any
excess money held by them at any time. The Trustee or the Paying Agent, as the case may be, shall provide written notice to the
Company of any money that has been held by it and has, for a period of two (2) years, remained unclaimed for the payment of the
principal of, or any accrued and unpaid interest on, the Securities. The Trustee and the Paying Agent shall pay to the Company
upon the written request of the Company any money held by them for the payment of the principal of, or any accrued and unpaid
interest on, the Securities that remains unclaimed for two (2) years. After payment to the Company, Holders entitled to the money
must look to the Company for payment as general creditors, subject to applicable law, and all liability of the Trustee and the
Paying Agent with respect to such money and payment shall, subject to applicable law, cease.


 


8.04       Reinstatement.


 


If
the Trustee or Paying Agent is unable to apply any money in accordance with Sections ‎8.01 and ‎8.02
by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Sections ‎8.01 and ‎8.02
until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Sections ‎8.01
and ‎8.02; provided, however, that if the Company has made any payment of amounts due with respect
to any Securities because of the reinstatement of its obligations, then the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee or Paying Agent.


 




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IX.       AMENDMENTS


 


9.01       Without
Consent of Holders.


 


The
Company and the Trustee may amend or supplement this Indenture or the Securities without notice to or the consent of any Holder:


 


(i)       to
comply with Section ‎5.01 or Section ‎10.12;


 


(ii)      to
secure or guarantee the obligations of the Company in respect of the Securities;


 


(iii)     to
provide for uncertificated Securities in addition to or in place of Physical Securities in accordance with Section ‎2.15(B);


 


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


 


(v)      to
make any change that does not adversely affect the rights of any Holder;


 


(vi)     to
evidence and provide for the appointment of a successor Trustee in accordance with Section ‎7.08;


 


(vii)    to
add to the covenants of the Company described in this Indenture for the benefit of Holders or to surrender any right or power
conferred upon the Company;


 


(viii)   to
make provision with respect to adjustments to the Conversion Rate as required by this Indenture or to increase the Conversion
Rate in accordance with this Indenture; or


 


(ix)   to
issue Additional Securities in accordance with the Indenture.


 


In
addition, the Company and the Trustee may enter into a supplemental indenture without the consent of Holders of the Securities
to (i) cure any ambiguity, defect, omission or inconsistency in this Indenture in a manner that does not, individually or
in the aggregate with all other changes, adversely affect the rights of any Holder in any material respect or (ii) to conform
the Indenture or the Securities to the “Description of Notes” section of the Private Placement Memorandum.


 


9.02       With
Consent of Holders.


 


The
Company and the Trustee may amend or supplement this Indenture or the Securities with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities (including, without limitation, consents obtained
from Holders in connection with a purchase of, or tender or exchange offer for, Securities). Subject to Sections ‎6.04
and ‎6.07, the Holders of a majority in aggregate principal amount of the outstanding Securities may, by notice
to the Trustee, waive by consent (including, without limitation,


 




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consents
obtained from Holders in connection with a purchase of, or tender or exchange offer for, Securities) compliance by the Company
with any provision of this Indenture or the Securities without notice to any other Holder. Notwithstanding the foregoing or anything
herein to the contrary, without the consent of the Holder of each outstanding Security affected, an amendment, supplement or waiver,
including a waiver pursuant to Section ‎6.04, may not:


 


(i)       change
the stated maturity of the principal of, or the payment date of any installment of interest on, any Security;


 


(ii)      reduce
the principal amount of, or interest on, any Security;


 


(iii)     reduce
the amount of principal payable upon acceleration of the maturity of any Security;


 


(iv)     change
the place, manner or currency of payment of principal of, or any interest on, any Security;


 


(v)      impair
the right to institute suit for the enforcement of any delivery or payment on, or with respect to, or due upon the conversion
of, any Security;


 


(vi)     modify,
in a manner adverse to Holders, the provisions with respect to the right of Holders to require the Company to repurchase Securities
upon the occurrence of a Fundamental Change pursuant to Section ‎3.02;


 


(vii)   modify
the provisions of Section ‎2.18;


 


(viii)   adversely
affect the right of Holders to convert their Securities in accordance with Article ‎X;


 


(ix)     reduce
the percentage in aggregate principal amount of outstanding Securities whose Holders must consent to a modification to or amendment
of any provision of this Indenture or the Securities;


 


(x)       reduce
the percentage in aggregate principal amount of outstanding Securities whose Holders must consent to a waiver of compliance with
any provision of this Indenture or the Securities or a waiver of any Default or Event of Default;


 


(xi)     waive
a continuing Default or Event of Default in the payment of the principal of or interest on any Security;


 


(xii)    modify
the provisions of this Indenture with respect to modification and waiver (including waiver of a Default or an Event of Default),
except to increase the percentage required for modification or waiver or to provide for the consent of each affected Holder.


 


Promptly
after an amendment, supplement or waiver under Section ‎9.01 or this Section ‎9.02 becomes
effective, the Company shall mail, or cause to be mailed, to Holders a notice briefly describing such amendment, supplement or
waiver. Any failure of the Company to mail


 




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such
notice shall not in any way impair or affect the validity of such amendment, supplement or waiver.


 


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


 


9.03       Revocation
and Effect of Consents.


 


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


 


After
an amendment, supplement or waiver becomes effective with respect to the Securities, it shall bind every Holder unless such amendment,
supplement or waiver makes a change that requires, pursuant to Section ‎9.02, the consent of each Holder affected.
In that case, the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and, provided that
notice of such amendment, supplement or waiver is reflected on a Security that evidences the same debt as the consenting Holder’s
Security, every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s
Security.


 


Nothing
in this Section ‎9.03 shall impair the Company’s rights pursuant to Section ‎9.01 to
amend this Indenture or the Securities without the consent of any Holder in the manner set forth in, and permitted by, such Section
‎9.01.


 


9.04       Notation
on or Exchange of Securities.


 


If
an amendment, supplement or waiver changes the terms of a Security, the Trustee may require the Holder of the Security to deliver
it to the Trustee. The Trustee may place an appropriate notation on the Security as directed and prepared by the Company about
the changed terms and return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the changed terms.


 


9.05       Trustee
Protected.


 


The
Trustee shall sign any amendment, supplemental indenture or waiver authorized pursuant to this Article ‎IX;
provided, however, that the Trustee need not sign any amendment, supplement or waiver authorized pursuant to this
Article ‎IX that adversely affects the Trustee’s rights, duties, liabilities or immunities. The Trustee
shall receive and conclusively rely upon an Opinion of Counsel as to legal matters and an Officer’s Certificate as to factual
matters that any supplemental indenture, amendment or waiver is permitted or authorized pursuant to this Indenture.


 




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9.06       Effect
of Supplemental Indentures.


 


Upon
the due execution and delivery of any supplemental indenture in accordance with this Article ‎IX, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes,
and, except as set forth in Sections ‎9.02 and ‎9.03, every Holder of Securities shall be bound
thereby.


 


 


X.       CONVERSION


 


10.01       Conversion
Privilege.


 


(A)       Subject
to the provisions of Section ‎3.01, Section ‎3.02 and Section ‎10.02, the Securities shall be convertible (i) prior
to the close of business on the Business Day immediately preceding April 15, 2022, upon satisfaction of one or more of the
conditions described in Section ‎10.01(B) and (ii) at any time from, and including, April 15, 2022 to, and including,
the Business Day immediately preceding the Maturity Date, irrespective of the conditions described in Section ‎10.01(B),
in each case, into cash, shares of Common Stock, or a combination thereof, as described in Section ‎10.02, in accordance with
this Article ‎X.


 


(B)               (i)Prior
to the close of business on the Business Day immediately preceding April 15, 2022, Holders may surrender their Securities
for conversion at any time during any fiscal quarter after the fiscal quarter ending December 31, 2017 (and only during such
fiscal quarter), if the Closing Sale Price of the Common Stock for each of twenty (20) or more Trading Days in the thirty (30)
consecutive Trading Days ending on the last Trading Day of the immediately preceding fiscal quarter exceeds the Conversion Trigger
Price in effect on the last Trading Day of the immediately preceding fiscal quarter. The Board of Directors shall make appropriate
adjustments to the Closing Sale Price, in its good faith determination, to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring an adjustment to the Conversion Rate where the Effective Date, the Ex-Date or the expiration
date (in the case of a tender or exchange offer) of the event occurs, during the thirty (30) consecutive Trading Day period described
in the immediately preceding sentence. The Company shall determine at the beginning of each fiscal quarter after the fiscal quarter
ending December 31, 2017 whether the Securities are convertible as a result of the price of the Common Stock in accordance
with this Section ‎10.01(B)(i) and, if the Company determines that the Securities are so convertible, it shall
promptly send written notice to the Trustee and the Conversion Agent (if other than the Trustee) and so notify the Holders.


 


(ii)       Prior
to the close of business on the Business Day immediately preceding April 15, 2022, Holders may surrender their Securities
for conversion at any time during the five (5) consecutive Business Days immediately after any five (5) consecutive Trading Day
period (the “Security Measurement Period”) in which the Trading Price per $1,000 principal amount of Securities,
as determined following a request by a Holder of Securities in accordance with the procedures set forth in this Section ‎10.01(B)(ii),
for each Trading Day in such Security Measurement Period was equal to or less than 98% of the Conversion Value of the Securities
on such Trading Day (the “Trading Price Condition”). The Trading Prices shall be determined by the


 




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Bid
Solicitation Agent pursuant to this Section ‎10.01(B)(ii) and the definition of Trading Price set forth
in this Indenture. If the Company is not then acting as the Bid Solicitation Agent, 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 of the Securities in accordance with this Section ‎10.01(B)(ii)
unless requested by the Company, 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 of the Securities in accordance
with this Section ‎10.01(B)(ii)) unless a Holder of Securities then outstanding provides the Company with reasonable
evidence that the Trading Price per $1,000 principal amount of Securities would be equal to or less than 98% of the Conversion
Value of the Securities. At such time, the Company shall instruct the Bid Solicitation Agent (if other than the Company) to determine,
or if the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price of the Securities for each
of the next five Trading Days and on each succeeding Trading Day until the Trading Price Condition is no longer satisfied. If
the Trading Price Condition has been met, the Company shall, as soon as practicable following the condition being met, send written
notice to the Trustee, and the Conversion Agent (if other than the Trustee) and so notify the Holders. If, at any time after the
Trading Price Condition set forth above has been met, the Trading Price per $1,000 principal amount of Securities is greater than
98% of the Conversion Value, the Company shall send written notice to the Trustee and the Conversion Agent (if other than the
Trustee) and so notify the Holders.


 


(iii)       Prior
to the close of business on the Business Day immediately preceding April 15, 2022, if a Fundamental Change or a Make-Whole
Fundamental Change occurs, or if the Company is party to a consolidation, merger or binding share exchange pursuant to which the
Common Stock would be converted into or exchanged for, or would constitute solely the right to receive, cash, securities or other
property, then Holders may surrender their Securities for conversion at any time during the period beginning on, and including,
the effective date of the transaction and ending on, and including, the earlier of (x) the close of business on the thirtieth
(30th) Business Day after the effective date of the transaction and (y) the date the Company publicly announces the transaction
will not take place. In addition, if the transaction is a Make-Whole Fundamental Change, then the Securities may also be surrendered
for conversion at any time during the Make-Whole Conversion Period, and if the transaction is a Fundamental Change, then the Securities
may also be surrendered for repurchase at any time until the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date for such Fundamental Change. The Company shall notify in writing Holders and the Trustee (a) as promptly
as practicable following the date the Company publicly announces such transaction but in no event less than ten (10) Business
Days prior to the anticipated effective date of such transaction or (b) if the Company does not have knowledge of such transaction
at least ten (10) Business Days prior to the anticipated effective date of such transaction, within one (1) Business Day of the
date upon which the Company receives notice, or


 




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otherwise
becomes aware, of such transaction, but in no event later than the actual effective date of such transaction.


 


(iv)          Prior
to the close of business on the Business Day immediately preceding April 15, 2022, if the Company elects to:


 


(a)       distribute
to all or substantially all holders of Common Stock any rights, options or warrants entitling them, for a period of not more than
sixty (60) days after the record date of such distribution, to purchase or subscribe for shares of Common Stock at a price per
share less than the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending
on the Trading Day immediately preceding the date of announcement for such distribution; or


 


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


 


then,
in either case, the Company shall deliver to Holders and the Trustee notice at least sixty-five (65) Business Days before the
Ex-Date for such distribution. Once the Company has given such notice, Holders may surrender their Securities for conversion at
any time until the earlier of the close of business on the Business Day immediately preceding the Ex-Date and the Company’s
announcement that such distribution will not take place, even if the Securities are not otherwise convertible at such time. No
Holder may exercise the right to convert under this clause ‎(iv) if the Holder, without conversion, otherwise receives, for
each $1,000 principal amount of Securities, at the same time and upon the same terms as holders of the Common Stock the amount
and kind of rights, options or warrants to subscribe for or purchase shares of the Common Stock, or assets, debt securities or
rights to purchase the Company’s securities, as the case may be, that the Holder would have received as if the Holder owned
a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Date for the distribution.


 


(C)       A
Holder may convert a portion of the principal amount of a Security if such portion is $1,000 principal amount or an integral multiple
of $1,000 principal amount. Provisions of this Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of such Security.


 


10.02       Conversion
Procedure and Payment Upon Conversion.


 


(A)       To
convert a Security, a Holder of a Physical Security must (1) complete and manually sign the Conversion Notice, with appropriate
signature guarantee, or facsimile of the Conversion Notice and deliver the completed Conversion Notice to the Conversion Agent,
(2) surrender the Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if required by
the Registrar or Conversion Agent, (4) pay any tax or duty if


 




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required
pursuant to Section ‎10.04 and (5) pay the amount of interest, if any, required by Section ‎10.02(E).
If a Holder holds a beneficial interest in a Global Security, to convert such Security, the Holder must comply with clauses (4)
and (5) above and the Depositary’s procedures for converting a beneficial interest in a Global Security.


 


Upon
conversion of a Holder’s Security, the Company shall pay or deliver, as the case may be, through the Conversion Agent or
the Company’s stock transfer agent, as the case may be, cash, shares of Common Stock, or a combination thereof (together
with, as applicable, cash in lieu of any fractional share) as set forth in this Section ‎10.02(A). The Company
shall inform Holders in writing, or shall direct the Trustee in writing to deliver such notice on its behalf, of its election
to pay cash, deliver shares of Common Stock (together with cash in lieu of any fractional share) or pay and deliver, as the case
may be, a combination thereof (together with cash in lieu of any fractional share) upon conversion of any Securities (and the
Specified Cash Amount, if applicable, as described second immediately succeeding paragraph), as follows:


 


(i)       in
respect of Securities having a Conversion Date during the period beginning on, and including, the sixty-second (62nd) Business
Day immediately preceding the Maturity Date and ending on, and including the Business Day immediately preceding the Maturity Date,
no later than the sixty-third (63rd) Business Day immediately preceding the Maturity Date; and


 


(ii)       in
all other cases, no later than two Business Days immediately following the applicable Conversion Date.


 


If,
in respect of any conversion of Securities, the Company has not irrevocably elected Net Share Settlement (as described in Section
‎10.02(B)), and the Company does not give notice (including notice of the Specified Cash Amount, if applicable)
within the time periods described in clauses (i) through (ii) above as to how it intends to settle its conversion obligation with
respect to such Securities, the Company shall satisfy such conversion obligation by delivering solely shares of Common Stock (other
than paying solely cash in lieu of any fractional share).


 


If
the Company chooses to satisfy a portion (but not all) of its conversion obligation by paying cash (other than solely cash in
lieu of any fractional share) or if the Company has irrevocably elected Net Share Settlement upon conversion as described in Section
‎10.02(B), the Company shall notify the converting Holder(s) during the periods set forth in clauses (i) through
(ii) in the second immediately preceding paragraph of the amount to be satisfied in cash as a fixed dollar amount per $1,000 principal
amount of Securities (the “Specified Cash Amount”); provided that if the Company has previously irrevocably
elected Net Share Settlement upon conversion as described in Section ‎10.02(B), the Specified Cash Amount must
be at least $1,000. If, subsequent to the Company irrevocably electing Net Share Settlement or electing to satisfy a portion (but
not all) of its conversion obligation by paying cash (other than paying solely cash in lieu of any fractional share), and the
Company fails to timely notify converting Holders of the Specified Cash Amount, the Specified Cash Amount shall be deemed to be
$1,000.


 


The
Company shall treat all converting Holders with the same Conversion Date in the same manner. Except for any conversions that occur
on or after the sixty-second (62nd)


 




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Business
Day immediately preceding the Maturity Date, the Company shall not have any obligation to settle conversions occurring on different
Conversion Dates in the same manner.


 


If
the Company elects to settle any conversion of Securities by delivering solely shares of Common Stock (other than paying cash
in lieu of any fractional share), including if the Company has irrevocably elected Full Physical Settlement upon conversion as
described in Section ‎10.02(C), such settlement shall occur within three Business Days of the relevant Conversion
Date. Except upon conversion in connection with a Common Stock Change Make-Whole Fundamental Change where the consideration for
Common Stock is comprised entirely of cash as described in Section ‎10.15(C), settlement of conversions
of the Securities made entirely or partially in cash (other than solely cash in lieu of any fractional share) (including if the
Company has irrevocably elected Net Share Settlement upon conversion as described in Section ‎10.02(B)) shall
occur on the third Business Day immediately following the final Trading Day of the applicable Cash Settlement Averaging Period.


 


The
amount of cash and number of shares of Common Stock, if any, due upon conversion of Securities, as the case may be, shall be determined
as follows:


 


		(1)	if
                                         the Company elects to satisfy its entire conversion obligation by delivering shares of
                                         Common Stock, including if the Company has irrevocably elected Full Physical Settlement
                                         upon conversion as described in Section ‎10.02(C), the Company shall
                                         deliver to each converting Holder a number of shares of Common Stock equal to (i) (A)
                                         the aggregate principal amount of Securities converted, divided by (B) $1,000,
                                         multiplied by (ii) the Conversion Rate in effect on the relevant Conversion Date
                                         (provided that the Company shall pay cash in lieu of any fractional share as described
                                         in Section ‎10.03);



 


		(2)	if
                                         the Company elects to satisfy its entire conversion obligation by paying cash, the Company
                                         shall pay to each converting Holder, for each $1,000 principal amount of Securities converted,
                                         cash in an amount equal to the sum of the Daily Conversion Values for each of the sixty
                                         (60) consecutive Trading Days in the relevant Cash Settlement Averaging Period; and



 


		(3)	if
                                         the Company elects to satisfy the conversion obligation by delivering or paying, as the
                                         case may be, a combination of cash and shares of Common Stock, including if the Company
                                         has irrevocably elected Net Share Settlement pursuant to Section ‎10.02(B),
                                         the Company shall pay or deliver, as the case may be, to each converting Holder, for
                                         each $1,000 principal amount of Securities converted, cash and shares of Common Stock,
                                         if any, equal to the sum of the Daily Settlement Amounts for each of the sixty (60) consecutive
                                         Trading Days in the relevant Cash Settlement Averaging Period.



 


The
Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly
following the last day of the applicable Cash Settlement Averaging Period. Promptly after such determination of the Daily Settlement
Amounts or the Daily Conversion Values, as the case may be, and the amount of cash deliverable in lieu of fractional shares (if
any), the Company shall


 




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


 


(B)       At
any time on or prior to the sixty-third (63rd) Business Day immediately preceding the Maturity Date, the Company may irrevocably
elect to satisfy its conversion obligation with respect to the Securities having a Conversion Date after the date of such election
by electing a Specified Cash Amount at least equal to $1,000 for each $1,000 principal amount of Securities to be converted (“Net
Share Settlement”). Such election (a “Net Share Settlement Election”) shall be in the Company’s
sole discretion and shall not require the consent of Holders. Upon making a Net Share Settlement Election, the Company shall promptly
(i) issue a press release and post such information on its website or otherwise publicly disclose this information or (ii) provide
written notice to Holders by mailing such notice to Holders at their addresses shown in the register of the Registrar, or if such
Securities are held in book-entry form through the Depositary, through the applicable notice procedures of the Depositary.


 


(C)       At
any time on or prior to the sixty-third (63rd) Business Day immediately preceding the Maturity Date, the Company may irrevocably
elect to satisfy its conversion obligation with respect to the Securities having a Conversion Date after the date of such election
by delivering solely shares of Common Stock (other than paying solely cash in lieu of any fractional share) in respect of the
conversion obligation (“Full Physical Settlement”). Such election (a “Full Physical Settlement Election”)
shall be in the Company’s sole discretion and shall not require the consent of Holders. Upon making a Full Physical Settlement
Election, the Company shall promptly (i) issue a press release and post such information on its website or otherwise publicly
disclose this information or (ii) provide written notice to Holders by mailing such notice to Holders at their addresses shown
in the register of the Registrar, or if such Securities are held in book-entry form through the Depositary, through the applicable
notice procedures of the Depositary.


 


(D)       A
Holder receiving any shares of Common Stock upon conversion shall not be entitled to any rights as a holder of Common Stock, including,
among other things, the right to vote and receive dividends and notices of stockholder meetings, until the close of business on
the Conversion Date (if the Company delivers solely shares of Common Stock in respect of the conversion obligation, other than
paying solely cash in lieu of any fractional share delivered pursuant to Section ‎10.03, including if the Company
has irrevocably elected Full Physical Settlement as described in Section ‎10.02(C)) or the close of business
on the last Trading Day of the relevant Cash Settlement Averaging Period (if the Company pays cash in respect of a portion (but
not all) of the conversion obligation upon conversion pursuant to Section ‎10.02(A), other than solely cash
in lieu of any fractional shares delivered pursuant to Section ‎10.03, including if the Company has irrevocably
elected Net Share Settlement as described in Section ‎10.02(B)). On and after the Conversion Date with respect
to a conversion of a Security pursuant hereto, all rights of the Holder of such Security shall terminate, other than the right
to receive the consideration deliverable upon conversion of such Security as provided herein.


 


(E)       Except
as provided in the Securities or in this Article ‎X, no payment or adjustment (to the Conversion Rate or otherwise)
shall be made for accrued interest on a


 




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converted
Security, and accrued interest, if any, shall be deemed to be paid by the consideration paid to the Holder upon conversion. Such
accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon conversion
of the Securities into a combination of cash and shares of Common Stock, accrued and unpaid interest (if any) shall be deemed
to be paid first out of the cash paid upon such conversion. If any Holder surrenders a Security for conversion after the close
of business on the Record Date for the payment of an installment of interest but prior to the open of business on the next Interest
Payment Date, then, notwithstanding such conversion, the full amount of interest payable with respect to such Security on such
Interest Payment Date shall be paid on such Interest Payment Date to the Holder of record of such Security at the close of business
on such Record Date; provided, however, that such Security, when surrendered for conversion, must be accompanied
by payment to the Conversion Agent on behalf of the Company of an amount equal to the full amount of interest payable on such
Interest Payment Date on the Security so converted; provided further, however, that such payment to the Conversion
Agent described in the immediately preceding proviso in respect of a Security surrendered for conversion shall not be required
(i) with respect to a Security that is surrendered for conversion after the close of business on the Record Date immediately preceding
the Maturity Date; or (ii) with respect to any Security surrendered for conversion after the close of business on a Record Date
for the payment of an installment of interest and on or before the open of business on the related Interest Payment Date where
the Company has specified a Fundamental Change Repurchase Date pursuant to Section 3.05 that is after such Record Date
but on or prior to the Business Day immediately succeeding such Interest Payment Date; provided further that, if the Company
shall have, prior to the Conversion Date with respect to a Security, defaulted in a payment of interest on such Security, then
in no event shall the Holder of such Security who surrenders such Security for conversion be required to pay such defaulted interest
or the interest that shall have accrued on such defaulted interest pursuant to Section ‎2.12 or otherwise (it
being understood that nothing in this Section ‎10.02(E) shall affect the Company’s obligations under Section
‎2.12).


 


(F)       If
a Holder converts more than one Security at the same time, the full number of shares of Common Stock issuable upon such conversion,
if any, shall be based on the total principal amount of all Securities converted.


 


(G)       Upon
surrender of a Security that is converted in part, the Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered.


 


(H)       If
the last day on which a Security may be converted is a Legal Holiday in a place where a Conversion Agent is located, the Security
may be surrendered to that Conversion Agent on the next succeeding day that is not a Legal Holiday.


 


10.03       Cash
in lieu of Fractional Shares.


 


The
Company shall not issue fractional shares of Common Stock upon conversion of Securities. Instead, the Company shall pay cash in
lieu of any fractional share based on the Closing Sale Price of Common Stock on the Conversion Date (if the Company delivers solely
shares of Common Stock to satisfy its conversion obligation, other than paying solely cash in lieu of any fractional share, including
if the Company has irrevocably elected Full Physical


 




    -52-


     

    

Settlement
upon conversion pursuant to Section ‎10.02(C)) or the Closing Sale Price of Common Stock on the last Trading
Day of the relevant Cash Settlement Averaging Period (if the Company pays cash to satisfy a portion, but less than all, of its
conversion obligation, other than solely cash in lieu of any fractional share, including if the Company has irrevocably elected
Net Share Settlement upon conversion pursuant to Section ‎10.02(B)).


 


10.04       Taxes
on Conversion.


 


If
a Holder converts its Security, the Company shall pay any documentary, stamp or similar issue or transfer tax or duty due on the
issue, if any, of Common Stock upon the conversion. However, such Holder shall pay any such tax or duty that is due because such
shares are issued in a name other than such Holder’s name. The Conversion Agent may refuse to deliver a certificate representing
the Common Stock to be issued in a name other than such Holder’s name until the Conversion Agent receives a sum sufficient
to pay any tax or duty which shall be due because such shares are to be issued in a name other than such Holder’s name.


 


10.05       Company
to Provide Common Stock.


 


The
Company shall at all times reserve out of its authorized but unissued Common Stock or Common Stock held in its treasury enough
shares of Common Stock to permit the conversion, in accordance herewith, of all of the Securities (assuming, for such purposes,
that the Company has previously elected Full Physical Settlement pursuant to Section ‎10.02(C)). The shares
of Common Stock, if any, due upon conversion of a Global Security shall be delivered by the Company through its stock transfer
agent and in accordance with the Depositary’s customary practices.


 


All
shares of Common Stock that may be issued upon conversion of the Securities shall be validly issued, fully paid and non-assessable
and shall be free of preemptive or similar rights and free of any lien or adverse claim.


 


The
Company shall comply with all securities laws regulating the offer and delivery of shares of Common Stock upon conversion of Securities
and shall list such shares on each national securities exchange or automated quotation system on which the shares of Common Stock
are listed.


 


10.06       Adjustment
of Conversion Rate.


 


The
Conversion Rate shall be subject to adjustment from time to time, without duplication, upon the occurrence of any of the following
events:


 


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


 





 




    -53-


     

    

where


 





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

                                                                      

	CR'	=	the Conversion Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution, or the open of business on the Effective Date of such share split or share combination, as the case may be;

                                                          

	OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution, or the open of business on the Effective Date of such share split or share combination, as the case may be; and

                                                          

	OS'	=	the number of shares of Common Stock outstanding immediately after such dividend or distribution, or such share split or share combination, as the case may be.




 





Any
adjustment made under this Section ‎10.06(a) shall become effective immediately after the open of business
on the Ex-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 the case may be. If any dividend or distribution of the type described in this Section ‎10.06(a)
is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board
of Directors determines not to pay such dividend or distribution to the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared.


 


(b)       If
the Company distributes to all or substantially all holders of the Common Stock any rights, options or warrants entitling them,
for a period expiring not more than sixty (60) days immediately following the record date of such distribution, to purchase or
subscribe for shares of Common Stock, at a price per share less than the average of the Closing Sale Prices of the Common Stock
over the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the announcement date for such
distribution, the Conversion Rate shall be increased based on the following formula:


 





 


where


 





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







 




    -54-


     

    

 








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

                                                 

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

                                     

	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 Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the announcement date for such distribution.







 





Any
increase made under this Section ‎10.06(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-Date for such distribution. In no
event shall the Conversion Rate be decreased pursuant to the formula set forth above. The Company shall not issue any such rights,
options, or warrants in respect of Common Stock held in treasury by the Company. 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 readjusted 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, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such
Ex-Date for such distribution had not occurred.


 


For
purposes of this Section ‎10.06(b) and Section ‎10.01(B)(iv), 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 Closing
Sale Prices for the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the announcement 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 or other of its assets, securities or property
or rights, options or warrants to acquire its Capital Stock or other securities, but excluding (i) dividends or distributions
covered by Sections ‎10.06(a), ‎10.06(b) or ‎10.06(e), (ii) dividends or distributions paid exclusively
in cash covered by Section ‎10.06(d), (iii) dividends or distributions that consist solely of Reference
Property following a transaction described in Section ‎10.12, and (iv) Spin-Offs to which the provisions set forth
in the latter portion of this Section ‎10.06(c) shall apply (any of such shares of the Company’s Capital Stock,
indebtedness or


 




    -55-


     

    

other
assets, securities or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed
Property”), to all or substantially all holders of Common Stock, then, in each such case the Conversion Rate shall be
increased based on the following formula:


 





 


where


 


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

                                                 

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

                                     

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

                                     

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







 


Any
increase made under the portion of this Section ‎10.06(c) above shall become effective immediately
after the open of business on the Ex-Date for such distribution. In no event shall the Conversion Rate be decreased pursuant to
the formula set forth above. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been declared.


 


Notwithstanding
the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined
above), in lieu of the foregoing increase, each Holder of a Security shall receive, for each $1,000 principal amount of Securities,
at the same time and upon the same terms as the holders of the Common Stock, the amount and kind of Distributed Property that
such Holder would have received as if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect
immediately prior to the close of business on the Ex-Date for such distribution.


 


With
respect to an adjustment pursuant to this Section ‎10.06(c) where there has been a payment of a dividend or other distribution
on the Common Stock 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, where such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted
upon consummation of the Spin-Off) on a U.S. national securities exchange (a “Spin-Off”),
the Conversion Rate in effect immediately before the close of business on the tenth (10th) Trading Day immediately


 




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following,
and including, the Ex-Date for the Spin-Off shall be increased based on the following formula:


 





 


where


 


	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Date for the Spin-Off;

                                                 

	CR'	=	the Conversion Rate in effect immediately after the open of business on the Ex-Date for the Spin-Off;

                                     

	FMV0	=	the average of the Closing 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 Closing Sale Price as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first ten (10) consecutive Trading Day period immediately following, and including, the Ex-Date for the Spin-Off (the “Valuation Period”); and

                                     

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







 


The
increase to the Conversion Rate under the preceding paragraph shall be determined at the close of business on the last Trading
Day of the Valuation Period but will be given effect immediately after the open of business on the Ex-Date for the Spin-Off; provided
that, for purposes of determining the Conversion Rate, in respect of any conversion during the Valuation Period, references
in the portion of this Section ‎10.06(c) related to Spin-Offs to the tenth (10th) Trading Day or ten (10) consecutive
Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Date of such
Spin-Off and the relevant Conversion Date. If the Ex-Date for the Spin-Off is less than ten (10) Trading Days prior to, and including,
the end of any Cash Settlement Averaging Period in respect of any conversion, references with respect to ten (10) Trading Days
shall be deemed to be replaced, for purposes of calculating the affected daily Conversion Rates in respect of that conversion,
with such lesser number of Trading Days as have elapsed from, and including, the Ex-Date for such Spin-Off to, and including,
the last Trading Day of such Cash Settlement Averaging Period. In no event shall the Conversion Rate be decreased pursuant to
the formula set forth above.


 


Subject
in all respects to Section ‎10.14, rights, options or warrants distributed by the Company to all holders of its Common
Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock, including Common
Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified
event or events (“Trigger Event”): (i) are deemed to be transferred with such Common Stock; (ii) are not exercisable;
and (iii) are also issued


 




    -57-


     

    

in
respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes
of this Section ‎10.06(c) (and no adjustment to the Conversion Rate under this Section ‎10.06(c) shall 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
‎10.06(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior
to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable
to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such
event shall be deemed to be the date of distribution and Ex-Date with respect to new rights, options or warrants with such rights
(and a termination or expiration of the existing rights, options or warrants 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 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 ‎10.06(c) was made, (1) in
the case of any such rights, options or warrants that shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution
or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase 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 repurchase, 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 or warrants had not been issued.


 


For
purposes of Section ‎10.06(a), Section ‎10.06(b) and this Section ‎10.06(c), any dividend or
distribution to which this Section ‎10.06(c) is applicable that also includes one or both of:


 


(A)       a
dividend or distribution of shares of Common Stock to which Section ‎10.06(a) is applicable (the “Clause A
Distribution”); or


 


(B)       a
dividend or distribution of rights, options or warrants to which Section ‎10.06(b) is applicable (the “Clause
B Distribution”),


 


then
(1) such dividend or distribution, other than the Clause A Distribution and Clause B Distribution, shall be deemed to be a dividend
or distribution to which this Section ‎10.06(c) is applicable (the “Clause C Distribution”) and
any Conversion Rate adjustment required by this Section ‎10.06(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 ‎10.06(a) and Section ‎10.06(b) with respect thereto
shall then be made, except that, if determined by the Board of Directors (I) the Ex-Date of the Clause A Distribution and
the Clause B Distribution shall be deemed to be the Ex-Date


 




    -58-


     

    

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 the Ex-Date for such dividend or distribution,
or the open of business on the Effective Date of such share split or share combination, as the case may be” within the meaning
of Section ‎10.06(a) or “outstanding immediately prior to the open of business on the Ex-Date for such distribution”
within the meaning of Section ‎10.06(b).


 


(d)       If
any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate shall be
increased based on the following formula:


 





 


where


 


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

                                                 

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

                                     

	SP0     	=	the average of the Closing
                                    Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period immediately
                                    preceding the Ex-Date for such dividend or distribution; and

                                     

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







 


Such
increase shall become effective immediately after the open of business on the Ex-Date for such dividend or distribution. In no
event shall the Conversion Rate be decreased pursuant to the formula set forth above. If such dividend or distribution is not
so paid, the Conversion Rate shall be decreased 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 Security shall receive, for each $1,000 principal amount of Securities, at
the same time and upon the same terms as holders of the Common Stock, the amount of cash such Holder would have received as if
such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-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 average of the
Closing Sale Prices of the Common Stock over the ten (10) consecutive


 




    -59-


     

    

Trading
Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula:


 





 


where


 





	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the expiration date for such tender or exchange offer;

                                                 

	CR'	=	the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the expiration date for such tender or exchange offer;

                                     

	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 expiration date for such tender or exchange offer (prior to giving effect to such tender or exchange offer);

                                     

	OS'	=	the number of shares of Common Stock outstanding immediately after the expiration date for such tender or exchange offer (after giving effect to such tender or exchange offer); and

                                     

	SP'	=	the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the expiration date for such tender or exchange offer.




 


 


The
increase to the Conversion Rate under this Section ‎10.06(e) shall be determined at the close of business on the tenth
(10th) Trading Day immediately following, but excluding, the expiration date for such tender or exchange offer but will be given
effect immediately prior to the open of business on the Trading Day immediately following the expiration date for such tender
or exchange offer; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during
the ten (10) Trading Days immediately following, but excluding, the expiration date for any such tender or exchange offer, references
in this Section ‎10.06(e) to the tenth (10th) Trading Day or ten (10) Trading Days shall be deemed to be replaced with
such lesser number of Trading Days as have elapsed between the expiration date for such tender or exchange offer and the relevant
Conversion Date. If the Trading Day immediately following the expiration date for the tender or exchange offer is less than ten
(10) Trading Days prior to, and including, the end of the Cash Settlement Averaging Period in respect of any


 




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conversion,
references to ten (10) Trading Days shall be deemed to be replaced, for purposes of calculating the affected daily Conversion
Rates in respect of such conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading
Day immediately following the expiration date for such tender or exchange offer to, and including, the last Trading Day of such
Cash Settlement Averaging Period. In no event shall the Conversion Rate be decreased pursuant to the formula set forth above.


 


(f)       Notwithstanding
this Section ‎10.06 or any other provision of this Indenture or the Securities, if a Conversion Rate adjustment
becomes effective on any Ex-Date, and a Holder that converts its Securities on or after such Ex-Date and on or prior to the related
record date would be treated as the record holder of shares of Common Stock as of the related Conversion Date as described under
Section ‎10.02 based on an adjusted Conversion Rate for such Ex-Date, then, notwithstanding the Conversion
Rate adjustment provisions in this Section ‎10.06, the Conversion Rate adjustment relating to such Ex-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)       In
addition to the foregoing adjustments in subsections ‎(a), ‎(b), ‎(c), ‎(d)
and ‎(e) above, the Company may, from time to time and to the extent permitted by law and the continued listing requirements
of The NASDAQ Global Select Market, increase the Conversion Rate by any amount for a period of at least twenty (20) Business Days
or any longer period as may be permitted or required by law, if the Board of Directors has made a determination, which determination
shall be conclusive, that such increase would be in the best interests of the Company. Such Conversion Rate increase shall be
irrevocable during such period. The Company shall give notice to the Trustee and cause notice of such increase to be mailed to
each Holder of Securities at such Holder’s address as the same appears on the registry books of the Registrar, at least
fifteen (15) days prior to the date on which such increase commences.


 


(h)       Notwithstanding
this Section ‎10.06 or any other provision of this Indenture or the Securities, if any Conversion Rate adjustment becomes
effective, or any Ex-Date for any issuance, dividend or distribution (relating to a required Conversion Rate adjustment) occurs,
during the period beginning on, and including, the open of business on a Conversion Date and ending on, and including, the close
of business on the last Trading Day of a related Cash Settlement Averaging Period (if the Company elects to satisfy the related
conversion obligation by paying cash, in whole or in part, in respect thereof or if the Company has irrevocably elected Net Share
Settlement pursuant to Section ‎10.02(B)), the Board of Directors shall make adjustments to the Conversion Rate
and the amount of cash or number of shares of Common Stock issuable upon conversion of the Securities, as the case may be, as
is be necessary or appropriate to effect the intent of this Section ‎10.06 and the other provisions of Article ‎X
and to avoid unjust or inequitable results, as determined in good faith by the Board of Directors. Any adjustment made pursuant
to this Section ‎10.06 shall apply in lieu of the adjustment or other term that would otherwise be applicable.


 




    -61-


     

    

(i)       All
calculations under this Article ‎X shall be made to the nearest cent or to the nearest one-millionth of a share,
as the case may be. Adjustments to the Conversion Rate shall be calculated to the nearest 1/10,000th.


 


10.07       No
Adjustment.


 


Notwithstanding
anything herein or in the Securities to the contrary, in no event shall the Conversion Rate be adjusted:


 


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


 


(ii)      upon
the issuance of any shares of Common Stock or restricted stock, restricted stock units, non-qualified stock options, incentive
stock options or any other options or rights (including stock appreciation 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;


 


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


 


(iv)     for
accrued and unpaid interest, if any;


 


(v)      upon
the repurchase of any shares of Common Stock pursuant to an open-market share repurchase program or other buy-back transaction
that is not a tender or exchange offer of the nature described in Section ‎10.06; or


 


(vi)     solely
for a change in the par value of shares of Common Stock.


 


No
adjustment in the Conversion Rate pursuant to Section ‎10.06 shall be required until cumulative adjustments
amount to one percent (1%) or more of the Conversion Rate as last adjusted (or, if never adjusted, the initial Conversion Rate);
provided, however, that any adjustments to the Conversion Rate which by reason of this paragraph are not required
to be made shall be carried forward and taken into account in any subsequent adjustment to the Conversion Rate; provided further,
that (i) on December 31 of each year and (ii) if the Securities have been converted pursuant to Section ‎10.01,
then, in each case, any adjustments to the Conversion Rate that have been, and at such time remain, deferred pursuant to this
Section ‎10.07 shall be given effect, and such adjustments, if any, shall no longer be carried forward and taken
into account in any subsequent adjustment to the Conversion Rate.


 


No
adjustment to the Conversion Rate need be made pursuant to Section ‎10.06 for a transaction (other than for
share splits or share combinations pursuant to Section ‎10.06(a)) if the Company makes provision for each Holder to
participate in the transaction, at the same time and upon the same terms that holders of Common Stock participate in such transaction,
without conversion, as if such Holder held a number of shares of Common Stock equal to the Conversion


 




    -62-


     

    

Rate
in effect on the Ex-Date or Effective Date, as applicable, of the transaction (without giving effect to any adjustment pursuant
to Section ‎10.06 on account of such transaction), multiplied by the principal amount (expressed in thousands)
of Securities held by such Holder.


 


10.08       Other
Adjustments.


 


In
the event that, as a result of an adjustment made pursuant to Section ‎10.06 hereof, the Holder of any Security
thereafter surrendered for conversion shall become entitled to receive any shares of Capital Stock other than Common Stock, thereafter
the Conversion Rate of such other shares so receivable upon conversion of any Security shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained
in this Article ‎X.


 


10.09       Adjustments
for Tax Purposes.


 


Except
as prohibited by law, and subject to the continued listing requirements of The NASDAQ Global Select Market, the Company may (but
is not obligated to) increase the Conversion Rate, in addition to those required by Section ‎10.06 hereof, as
it determines to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock
or securities or distribution of securities convertible into or exchangeable for stock made by the Company or to its stockholders
shall not be taxable to the recipients thereof or in order to avoid or diminish any such taxation.


 


10.10       Notice
of Adjustment.


 


Whenever
the Conversion Rate is adjusted, the Company shall promptly mail to Holders at the addresses appearing on the Registrar’s
books a notice of the adjustment and file with the Trustee an Officer’s Certificate briefly stating the facts requiring
the adjustment and the manner of computing it. The certificate shall be conclusive evidence of the correctness of such adjustment.


 


10.11       Notice
of Certain Transactions.


 


In
the event that:


 


		(1)	the
                                         Company takes any action, or becomes aware of any event, which would require an adjustment
                                         in the Conversion Rate,



 


		(2)	the
                                         Company takes any action that would require a supplemental indenture pursuant to Section
                                         ‎10.12, or



 


		(3)	there
                                         is a dissolution or liquidation of the Company,



 


the
Company shall mail to Holders at the addresses appearing on the Registrar’s books and the Trustee a written notice stating
the proposed record, effective or expiration date, as the case may be, of any transaction referred to in clause ‎(1),
‎(2) or ‎(3) of this Section ‎10.11. The Company shall mail such notice at least ten (10)
calendar days before such date; however, failure to mail


 




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such
notice or any defect therein shall not affect the validity of any transaction referred to in clause ‎(1), ‎(2)
or ‎(3) of this Section ‎10.11.


 


10.12       Effect
of Reclassifications, Consolidations, Mergers, Binding Share Exchanges or Sales on Conversion Privilege.


 


If
the Company:


 


(i)
reclassifies the Common Stock (other than a change only in par value or a change as a result of a subdivision or combination of
Common Stock to which Section ‎10.06 applies);


 


(ii)
is party to a consolidation, merger or binding share exchange; or


 


(iii)
sells, transfers, leases, conveys or otherwise disposes of all or substantially all of the consolidated property or assets of
the Company,


 


in
each case, pursuant to which the Common Stock would be converted into or exchanged for, or would constitute solely the right to
receive, cash, securities or other property (any such event, a “Merger Event”) then, if a Holder converts its
Securities on or after the effective date of any such transaction, subject to the Company’s right to settle all or a portion
of its conversion obligation with respect to such Securities by paying cash (other than solely cash in lieu of any fractional
share) as set forth in Section ‎10.02(A) and the Company’s right to irrevocably elect Net Share Settlement
as set forth in Section ‎10.02(B), the Securities shall be convertible into the same type (in the same proportions)
of consideration received by holders of Common Stock in such Merger Event (“Reference Property”) and, prior
to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall
execute with the Trustee a supplemental indenture permitted under Section ‎9.01(i) providing for such change
in the right to convert the Securities; provided, however, that at and after the effective time of the Merger Event,
(A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may
be, upon conversion of Securities in accordance with Section ‎10.02
and (B)(I) any amount payable in cash upon conversion of the Securities in accordance with Section ‎10.02
shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to
deliver upon conversion of the Securities in accordance with Section ‎10.02
shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of
Common Stock would have received in such Merger Event and (III) the Volume-Weighted Average Price for purposes of the provisions
of Section ‎10.02 shall be calculated based
on the value of a unit of Reference Property that a holder of one share of Common Stock would have received in such Merger Event.


 


If
the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type
of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which
the Securities shall be convertible (or be used to calculate a Volume-Weighted Average Price ) shall be deemed to be the weighted
average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election
and (ii) the unit of Reference Property


 




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for
purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one
share of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for
which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion
of each $1,000 principal amount of Securities shall be solely cash in an amount equal to the Conversion Rate in effect on the
Conversion Date (subject to any Make-Whole Applicable Increase pursuant to ‎Section ‎10.15), multiplied by the
price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the conversion obligation by paying
cash to converting Holders on the third Business Day immediately following the relevant Conversion Date. The Company shall notify
Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after
such determination is made.


 


If
the Reference Property in respect of any Merger Event is composed, in whole or in part, of shares of common stock, the supplemental
indenture referred to in the first sentence of this Section ‎10.12 shall provide for adjustments of the Conversion
Rate that shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Rate provided for in this Article
‎X (other than, in the case of any such Merger Event following the occurrence of a Make-Whole Fundamental Change
in connection with which Holders were entitled to convert their Securities and receive a Make-Whole Applicable Increase pursuant
to Section ‎10.15, an adjustment to the Conversion Rate of the kind set forth in Section ‎10.12
upon conversion in connection with any subsequent Make-Whole Fundamental Change). If, in the case of any Merger Event, the
Reference Property receivable thereupon by a holder of Common Stock includes shares of stock or other securities and property
of a Person other than the successor or purchasing Person, as the case may be, in such Merger Event, then such supplemental indenture
shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors in good faith shall reasonably determine necessary by reason of the foregoing (which
determination shall be described in a Board Resolution). The provisions of this Section ‎10.12 shall similarly
apply to successive Merger Events.


 


The
Company shall not become a party to any Merger Event unless its terms are consistent with this Section ‎10.12.


 


None
of the foregoing provisions shall affect the right of a Holder to convert its Securities into cash, shares of Common Stock or
a combination of cash and shares of Common Stock, as applicable, as set forth in Section ‎10.01 and Section ‎10.02
prior to the effective date of such Merger Event.


 


In
the event the Company shall execute a supplemental indenture pursuant to this Section ‎10.12, the Company shall
promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of Reference
Property receivable by Holders of the Securities upon the conversion of their Securities after any such Merger Event and any adjustment
to be made with respect thereto.


 




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10.13       Conversion
Agent and Trustee’s Disclaimer.


 


The
Conversion Agent and Trustee have no duty to determine when an adjustment under this Article ‎X should be made,
how it should be made or what such adjustment should be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon, the Officer’s Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section ‎10.10 hereof. The Conversion Agent and Trustee make
no representation as to the validity or value of any securities or assets issued upon conversion of Securities, and the Conversion
Agent and Trustee shall not be responsible for the failure by the Company to comply with any provisions of this Article
‎X.


 


The
Conversion Agent and Trustee shall not be under any responsibility to determine the correctness of any provisions contained in
any supplemental indenture executed pursuant to Section ‎10.12, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officer’s Certificate with respect thereto which the Company
is obligated to file with the Trustee pursuant to Section ‎10.12 hereof.


 


10.14       Rights
Distributions Pursuant to Stockholders’ Rights Plans.


 


Upon
conversion of any Security or a portion thereof, the Company shall make provision such that the Holder thereof shall, to the extent
such Holder is to receive shares of Common Stock upon such conversion, receive, in addition to, and concurrently with the delivery
of, such shares of Common Stock upon conversion, the rights described in any stockholders’ rights plan(s) of the Company
then in effect, unless the rights have separated from the Common Stock prior to the time of conversion, in which case the Conversion
Rate shall be adjusted at the time of separation as if the Company distributed to all holders of Common Stock, Distributed Property
as described in Section ‎10.06(c), subject to readjustment in the event of the expiration, termination or redemption
of such rights.


 


10.15       Increased
Conversion Rate Applicable to Certain Securities Surrendered in Connection With Make-Whole Fundamental Changes.


 


(A)       Notwithstanding
anything herein to the contrary, the Conversion Rate applicable to each Security that is surrendered for conversion, in accordance
with this Article ‎X, at any time during the period (any such period occurring before the Maturity Date, a “Make-Whole
Conversion Period”) from, and including, the effective date of a Make-Whole Fundamental Change (which effective date
the Company shall disclose in the written notice and public announcement referred to in Section ‎10.15(E)) to,
and including, the thirtieth (30th) Business Days immediately following such effective date (or, if such Make-Whole Fundamental
Change also constitutes a Fundamental Change, the Fundamental Change Repurchase Date corresponding to such Fundamental Change)
shall be increased to an amount equal to the Conversion Rate that would, but for this Section ‎10.15, otherwise
apply to such Security pursuant to this Article ‎X, plus an amount equal to the Make-Whole Applicable
Increase.


 


(B)       As
used herein, “Make-Whole Applicable Increase” shall mean, with respect to a Make-Whole Fundamental Change,
the amount, set forth in the following table, which


 




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corresponds
to the effective date and the Applicable Price of such Make-Whole Fundamental Change:


 


	 	Applicable
                                         Price 

	Effective
                                         Date 
	$4.40 
	$5.00 
	$5.50 
	$5.72 
	$6.50 
	$7.50 
	$10.00 
	$12.50 
	$15.00 
	$17.50 
	$20.00 
	$25.00 

	August
    7, 2017	52.4475 	40.8860 	31.5087 	24.7031 	18.9493 	11.3750 	7.7040 	5.5127 	4.0320 	2.9515 	2.9515 	1.4608
	July
    15, 2018	52.4475 	38.4560 	28.7920 	22.0031 	16.4813 	9.6420 	6.5224 	4.7020 	3.4794 	2.5875 	2.5875 	1.3556
	July
    15, 2019	52.4475 	35.7680 	25.6101 	18.7862 	13.5493 	7.6360 	5.1664 	3.7613 	2.8183 	2.1270 	2.1270 	1.1704
	July
    15, 2020	52.4475 	32.6600 	21.6276 	14.7246 	9.9307 	5.3170 	3.6304 	2.6807 	2.0354 	1.5585 	1.5585 	0.8944
	July
    15, 2021	52.4475 	28.7260 	15.9528 	9.0708 	5.2947 	2.7150 	1.9128 	1.4380 	1.1057 	0.8570 	0.8570 	0.5096
	July
    15, 2022	52.4475
    	25.1740
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    	0.0000
    


 


provided,
however, that:


 


(i)       if
the actual Applicable Price of such Make-Whole Fundamental Change is between two (2) Applicable Prices listed in the table above
under the row titled “Applicable Price,” or if the actual effective date of such Make-Whole Fundamental Change is
between two effective dates listed in the table above in the column immediately below the title “Effective Date,”
then the Make-Whole Applicable Increase for such Make-Whole Fundamental Change shall be determined by linear interpolation between
the Make-Whole Applicable Increases set forth for such higher and lower Applicable Prices, or for such earlier and later Effective
Dates based on a three hundred and sixty five (365) day year, as applicable;


 


(ii)       if
the actual Applicable Price of such Make-Whole Fundamental Change is greater than $25.00 per share (subject to adjustment in the
same manner as the Applicable Prices pursuant to Section ‎10.15(B)(iii)), or if the actual Applicable Price
of such Make-Whole Fundamental Change is less than $4.40 per share (subject to adjustment in the same manner as the Applicable
Prices pursuant to Section ‎10.15(B)(iii)), then the Make-Whole Applicable Increase shall be equal to zero
(0);


 


(iii)      if
an event occurs that requires, pursuant to Section ‎10.06, an adjustment to the Conversion Rate, then, on the
date and at the time such adjustment is so required to be made, each Applicable Price set forth in the table above under the row
titled “Applicable Price” shall be deemed to be adjusted so that such Applicable Price, at and after such time, shall
be equal to the product of (1) such Applicable Price as in effect immediately before such adjustment to such Applicable Price
and (2) a fraction whose numerator is the Conversion Rate in effect immediately before such adjustment to the Conversion Rate
and whose denominator is the Conversion Rate to


 




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be
in effect, in accordance with this Article ‎X, immediately after such adjustment to the Conversion Rate;


 


(iv)      each
Make-Whole Applicable Increase amount set forth in the table above shall be adjusted in the same manner, for the same events and
at the same time as the Conversion Rate is to be adjusted pursuant to Section ‎10.06;
and


 


(v)       in
no event shall the Conversion Rate applicable to any Security be increased pursuant to this Section ‎10.15 to
the extent, but only to the extent, such increase shall cause the Conversion Rate applicable to such Security to exceed 227.2727
shares per $1,000 principal amount (the “Maximum Conversion Rate”); provided, however, that the
Maximum Conversion Rate shall be adjusted at the same time and in the same manner in which, and for the same events for which,
the Conversion Rate is to be adjusted pursuant to Section ‎10.06.


 


(C)       Upon
surrender of Securities for conversion in connection with a Make-Whole Fundamental Change pursuant to Section ‎10.01(B)(iii),
the Company shall, at its option, satisfy its conversion obligation by paying or delivering, as the case may be, cash, shares
of Common Stock (together with cash in lieu of any fractional share) or a combination of cash and shares of Common Stock (together
with cash in lieu of any fractional share) in accordance with Section ‎10.02 and as subject to further
adjustment as set forth in Section ‎10.12; provided, however, that if at the effective time of
a Common Stock Change Make-Whole Fundamental Change the consideration for the Common Stock is comprised entirely of cash, for
any conversion of Securities following the effective date of such Common Stock Change Make-Whole Fundamental Change, the conversion
obligation shall be calculated based solely on the Applicable Price for the transaction and shall be deemed to be an amount of
cash equal to, per $1,000 principal amount of converted Securities, the applicable Conversion Rate (including any Make-Whole Applicable
Increase), multiplied by such Applicable Price. In such event, the cash due upon conversion shall be determined and paid
to Holders in cash on the third (3rd) Business Day immediately following the Conversion Date.


 


(D)       As
used herein, “Applicable Price” shall have the following meaning with respect to a Make-Whole Fundamental Change:
(a) if such Make-Whole Fundamental Change constitutes a Common Stock Change Make-Whole Fundamental Change and the consideration
(excluding cash payments for fractional shares or pursuant to statutory appraisal rights) for the Common Stock in such Common
Stock Change Make-Whole Fundamental Change consists solely of cash, then the “Applicable Price” with respect to such
Common Stock Change Make-Whole Fundamental Change shall be equal to the cash amount paid per share of Common Stock in such Common
Stock Change Make-Whole Fundamental Change and (b) in all other circumstances, the “Applicable Price” with respect
to such Make-Whole Fundamental Change shall be equal to the average of the Closing Sale Prices per share of Common Stock for the
five (5) consecutive Trading Days immediately preceding, but excluding, the effective date of such Make-Whole Fundamental Change,
which average shall be appropriately adjusted by the Board of Directors, in its good faith determination, to account for any adjustment,
pursuant hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant hereto, an adjustment to
the Conversion Rate where the Ex-Date of such event occurs, at any time during such five (5) consecutive Trading Days.


 




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(E)       No
later than five (5) Business Days after the effective date of each Make-Whole Fundamental Change, the Company shall deliver to
each Holder, in accordance with Section ‎13.01, written notice of, and shall publicly announce the effective
date of such proposed Make-Whole Fundamental Change. Each such notice and announcement shall also state that, in connection with
such Make-Whole Fundamental Change, the Company shall increase, in accordance herewith, the Conversion Rate applicable to Securities
entitled as provided herein to such increase (along with a description of how such increase shall be calculated and the time periods
during which Securities must be surrendered in order to be entitled to such increase). No later than the fifth (5th) Business
Day immediately following the effective date of each Make-Whole Fundamental Change, the Company shall deliver, in accordance with
Section ‎13.01, written notice of, and shall publicly announce such effective date and the Make-Whole Applicable
Increase applicable to such Make-Whole Fundamental Change.


 


(F)       For
avoidance of doubt, the provisions of this Section ‎10.15 shall not affect or diminish the Company’s obligations,
if any, pursuant to Article ‎III with respect to a Make-Whole Fundamental Change that also constitutes a Fundamental
Change.


 


(G)       Nothing
in this Section ‎10.15 shall prevent an adjustment to the Conversion Rate pursuant to Section ‎10.06
in respect of a Make-Whole Fundamental Change.


 


(H)       The
Company shall not take any action that would result in adjustment of the Conversion Rate, pursuant to this Section ‎10.15,
in such a manner as to result in the reduction of the Conversion Price to less than the par value per share of the Common Stock.


 


 


XI.       CONCERNING
THE HOLDERS


 


11.01       Action
by Holders.


 


Whenever
in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Securities may
take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein
may be evidenced (i) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent
or proxy appointed in writing, (ii) 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 ‎XII
or (iii) by a combination of such instrument or instruments and any such record of such a meeting of Holders.
Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Securities, the Company or the Trustee
may fix, but shall not be required to, in advance of such solicitation, a date as the record date for determining Holders entitled
to take such action. The record date if one is selected shall be not more than fifteen (15) days prior to the date of commencement
of solicitation of such action.


 


11.02       Proof
of Execution by Holders.


 


Subject
to the provisions of Section ‎7.01, Section ‎7.02
and Section ‎12.05, proof of the execution of any instrument by a Holder or its agent or proxy shall
be sufficient if made in


 




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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 Securities shall be proved by the security register of the Registrar or by a certificate of the Registrar.
The record of any Holders’ meeting shall be proved in the manner provided in Section ‎12.06.


 


11.03       Persons
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 Security shall be registered upon the security register of the Registrar to be, and may treat it as, the absolute
owner of such Security (whether or not such Security 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 or delivery of or on
account of the principal of and (subject to Section ‎2.12 and Section ‎4.01) accrued
and unpaid interest on such Security, for conversion of such Security 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 so made to any Holder for the time being, or upon its order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon or consideration
due upon conversion of any such Security. Notwithstanding anything to the contrary in this Indenture or the Securities following
an Event of Default, any Holder of a beneficial interest in a Global Security 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 Security in accordance with the provisions of this Indenture.


 


 


XII.       HOLDERS’
MEETINGS.


 


12.01       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 ‎XII
for any of the following purposes:


 


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


 


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


 


(C)       to
consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section ‎9.02;
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
Securities under any other provision of this Indenture or under applicable law.


 




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12.02       Call
of Meetings by Trustee.


 


The
Trustee may at any time call a meeting of Holders to take any action specified in Section ‎12.01, 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 ‎11.01, shall be mailed to Holders of such Securities at their addresses
as they shall appear on the security register of the Registrar. Such notice shall also be mailed to the Company. Such notices
shall be mailed not less than twenty (20) nor more than ninety (90) days prior to the date fixed for the meeting.


 


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


 


12.03       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% in aggregate principal amount of
the Securities 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 twenty (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 ‎12.01, by mailing
notice thereof as provided in Section ‎12.02.


 


12.04       Qualifications
for Voting.


 


To
be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Securities 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 Securities 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.


 


12.05       Regulations.


 


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


 


The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders as provided in


 




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Section ‎12.03,
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 Securities represented at the meeting and entitled to vote at the meeting.


 


Subject
to the provisions of Section ‎2.09, at any meeting of Holders each Holder or proxyholder shall be entitled
to one vote for each $1,000 principal amount of Securities held or represented by such Holder or proxyholder, as the case may
be; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security 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 Securities 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 ‎12.02
or Section ‎12.03 may be adjourned from time to time by the Holders of a majority of the aggregate
principal amount of Securities represented at the meeting, whether or not constituting a quorum, and the meeting may be held as
so adjourned without further notice.


 


12.06       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 Securities 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 ‎12.02. The record
shall show the principal amount of the Securities 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.


 


12.07       No
Delay of Rights by Meeting.


 


Nothing
contained in this Article ‎XII shall be deemed or construed to authorize or permit, by reason of any call
of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of
this Indenture or of the Securities.


 




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XIII.       MISCELLANEOUS


 


13.01       Notices.


 


Any
notice or communication by the Company or the Trustee to the other shall be deemed to be duly given if made in writing and delivered:


 


(A)       by
hand (in which case such notice shall be effective upon delivery);


 


(B)       by
facsimile (in which case such notice shall be effective upon receipt of confirmation of good transmission thereof); or


 


(C)       by
overnight delivery by a nationally recognized courier service (in which case such notice shall be effective on the Business Day
immediately after being deposited with such courier service),


 


in
each case to the recipient party’s address or facsimile number, as applicable, set forth in this Section ‎13.01.
The Company or the Trustee by notice to the other may designate additional or different addresses or facsimile numbers for subsequent
notices or communications.


 


The
Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile
transmission or other similar unsecured electronic methods; provided, however, that the Trustee shall have received
an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures
of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or
deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of
such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly
or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding if such instructions
conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the
use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the risk of
the Trustee acting on unauthorized instructions and the risk or interception and misuse by third parties.


 


Any
notice or communication to a Holder shall be mailed to its address shown on the register kept by the Registrar. Failure to mail
a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Notwithstanding
the foregoing, if Securities are held in global form, then notice to Holders shall be deemed to have been given if delivered in
accordance with the applicable procedures of the Depositary.


 


All
references in the Indenture to “mail,” deliver,” or “give” with respect to any notice or communication
to a Holder will be deemed duly given if such notice or communication is delivered in accordance with this Section ‎13.01.


 


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


 




    -73-


     

    

If
the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Securities Agent at the same
time. If the Trustee or the Securities Agent is required, pursuant to the express terms of this Indenture or the Securities, to
mail a notice or communication to Holders, the Trustee or the Securities Agent, as the case may be, shall also mail a copy of
such notice or communication to the Company.


 


All
notices or communications shall be in writing.


 


The
Company’s address is:


 


Accuray
Incorporated 


1310
Chesapeake Terrace 


Sunnyvale,
CA 94089 


Attention:
General Counsel 


Facsimile:
(408) 716-3341


 


The
Trustee’s address is:


 


The
Bank of New York Mellon Trust Company, N.A. 


400
South Hope Street, Suite 500 


Los
Angeles, CA 90071 


Attention:
Corporate Unit


Facsimile:
(213) 630-6298


 


13.02       Certificate
and Opinion as to Conditions Precedent.


 


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


 


(i)       an
Officer’s Certificate stating that, in the opinion of the signatories to such Officer’s Certificate, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and


 


(ii)       an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.


 


Each
signatory to an Officer’s Certificate or an Opinion of Counsel may (if so stated) rely, effectively, upon an Opinion of
Counsel as to legal matters and an Officer’s Certificate or certificates of public officials as to factual matters if such
signatory reasonably and in good faith believes in the accuracy of the document relied upon.


 


13.03       Statements
Required in Certificate or Opinion.


 


Each
Officer’s Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this
Indenture shall include:


 


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


 




    -74-


     

    

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


 


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


 


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


 


13.04       Communication
by Holders with Other Holders.


 


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


 


13.05       Rules
by Trustee and Agents.


 


The
Registrar, Paying Agent or Conversion Agent may make reasonable rules and set reasonable requirements for their respective functions.


 


13.06       Legal
Holidays.


 


A
“Legal Holiday” is a Saturday, a Sunday or a day on which banking institutions are not required to be open
in the City of New York, in the State of New York. If a payment date is a Legal Holiday, payment may be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue on that payment for the intervening period.


 


A
“Business Day” is a day other than a Legal Holiday.


 


13.07       Duplicate
Originals.


 


The
parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement. Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart
thereof.


 


13.08       Governing
Law.


 


THIS
INDENTURE AND THE SECURITIES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE OR THE SECURITIES,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT regard to THE CONFLICTS OF law
PROVISIONS thereof). EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL 


 




    -75-


     

    

PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


The
Company irrevocably submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in
The City of New York over any suit, action or proceeding arising out of or relating to this Indenture. The Company irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such
a court has been brought in an inconvenient forum.


 


13.09       No
Adverse Interpretation of Other Agreements.


 


This
Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any of its Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this Indenture.


 


13.10       Successors.


 


All
agreements of the Company in this Indenture and the Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successors.


 


13.11       Separability.


 


In
case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby and a Holder shall have no claim
therefor against any party hereto.


 


13.12       Table
of Contents, Headings, etc.


 


The
Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions
hereof.


 


13.13       Calculations
in Respect of the Securities; Adjustment of Prices.


 


(A)       The
Company and its agents shall make all calculations under this Indenture and the Securities. These calculations include, but are
not limited to, determinations of and adjustments to the Conversion Rate or Conversion Price and determinations of the Trading
Price of the Securities, the Volume-Weighted Average Price, the Closing Sale Price of the Common Stock, the amount of cash and/or
the number of shares or amount of Reference Property, if any, payable or issuable upon conversion of the Securities and amounts
of interest payable on the Securities. The Company and its agents shall make all of these calculations in good faith, and, absent
manifest error, such calculations shall be final and binding on all Holders. None of the Trustee, the Conversion Agent, the Security
Registrar, the Bid Solicitation Agent or the Paying


 




    -76-


     

    

Agent
(in each case, if other than the Company) shall have any responsibility for making such calculations nor for monitoring the trading
price of the Company’s Common Stock. The Company shall provide a copy of such calculations to each of the Trustee and the
Conversion Agent (if other than the Trustee) as required hereunder, and, absent such manifest error, each of the Trustee and the
Conversion Agent (if other than the Trustee) shall be entitled to conclusively rely on the accuracy of any such calculation without
independent verification. The Trustee shall forward the Company’s or the Company’s agent’s calculations to any
Holder upon the request of that Holder at the Company’s sole cost and expense.


 


(B)       Whenever
any provision of this Indenture requires the Company to calculate the Closing Sale Prices, the Volume-Weighted Average Prices,
the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including the Cash Settlement Averaging
Period and the Applicable Price for purposes of a Make-Whole Fundamental Change), the Board of Directors will 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 Effective Date, Ex-Date or expiration date (in the case of a tender or exchange offer) of the
event occurs, at any time during the period when such Closing Sale Prices, Volume-Weighted Average Prices, Daily Conversion Values
or Daily Settlement Amounts are to be calculated.


 


13.14       No
Personal Liability of Directors, Officers, Employees or Stockholders.


 


None
of the Company’s past, present or future directors, officers, employees or stockholders, as such, shall have any liability
for any of the Company’s obligations under this Indenture or the Securities or for any claim based on, or in respect or
by reason of, such obligations or their creation. By accepting a Security, each holder waives and releases all such liability.
This waiver and release is part of the consideration for the issue of the Securities.


 


13.15       Force
Majeure.


 


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


 


13.16       Foreign
Account Tax Compliance Act (FATCA).


 


In
order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated
by competent authorities) in effect from time to time (“Applicable Law”), the Trustee shall be entitled to
make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law (and
shall timely pay the amounts so withheld or deducted to the applicable government authority) for which the Trustee shall not have
any liability. Each of the Company and the Trustee agrees to


 




    -77-


     

    

reasonably
cooperate and, at the reasonable request of the other, to provide the other with such information as each may have in its possession
that is necessary to enable the determination of whether any payments hereunder are subject to any withholding or deduction pursuant
to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”),
or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official
interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the
implementation thereof (or any law implementing such an intergovernmental agreement).


 


[The
Remainder of This Page Intentionally Left Blank]


 




    -78-


     

    

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


 


 






	 	 	 	Accuray Incorporated	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	By:	/s/
    Kevin Waters 	 
	 	 	 	 	Name:	Kevin
    Waters	 
	 	 	 	 	Title:	Chief
    Financial Officer	 
	 	 	 	 	 	 	 


 



 






	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	By:	/s/
    Alaleh Nouri 	 
	 	 	 	 	Name:	Alaleh
    Nouri	 
	 	 	 	 	Title:	Senior
    Vice President, General Counsel	 
	 	 	 	 	 	 	 


 



 



    


     

    




 


	 	 	 	The Bank of New York
    Mellon Trust Company, N.A., as Trustee	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	By:	/s/
    Valere Boyd 	 
	 	 	 	 	Name:	Valere
    Boyd	 
	 	 	 	 	Title:	Vice
    President	 
	 	 	 	 	 	 	 




 





 




    	 



    	 



    

EXHIBIT
A


 


[Face
of Security]


 


ACCURAY
INCORPORATED


 


Certificate
No. _______


 


[INSERT
PRIVATE PLACEMENT LEGEND (SECURITIES) AND GLOBAL SECURITY LEGEND AS REQUIRED]


 


3.75%
Convertible Senior Notes due 2022 (the “Securities”)


 


CUSIP
No. [_____]


 


Accuray
Incorporated, a Delaware corporation (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 [_________], or its
registered assigns, the principal sum [of [___________] dollars ($[___________])]1 [as set forth in the “Schedule
of Exchanges of Interests in the Global Security” attached hereto, which amount, taken together with the principal amounts
of all other outstanding Securities, shall not, unless permitted by the Indenture, exceed eighty-five million dollars ($85,000,000)
in aggregate at any time, in accordance with the rules and procedures of the Depositary]2, on July 15, 2022, and
to pay interest thereon, as provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or
duly provided for.


 


Interest
Payment Dates: January 15 and July 15, with the first payment to be made on January 15, 2018.


 


Record
Dates: January 1 and July 1.


 


The
provisions on the back of this certificate are incorporated as if set forth on the face hereof.


 


 


 


 


______________



 


1
This is included for Physical Securities.


 


2
This is included for Global Securities.





    	 



    	 



    

 


IN
WITNESS WHEREOF, Accuray Incorporated has caused this instrument to be duly signed.


 





	 	 	 	Accuray Incorporated	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	By:		 
	 	 	 	 	Name:		 
	 	 	 	 	Title:		 
	 	 	 	 	 	 	 


 


 


Dated:
________________


 




    A-2


     

    

TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


This
is one of the Securities referred to in the within-mentioned Indenture.


 


The
Bank of New York Mellon Trust Company, N.A., as Trustee


 


		By:	 	 






Authorized
Signatory


 


Dated:
__________________


 




    A-3


     

    

[REVERSE
OF SECURITY]


 


ACCURAY
INCORPORATED


 


3.75%
Convertible Senior Notes due 2022


 


1.       Interest.
Accuray Incorporated, a Delaware corporation (the “Company”), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company shall pay interest, payable semi-annually in arrears, on
January 15 and July 15 of each year, with the first payment to be made on January 15, 2018. Interest on the Securities
shall accrue on the principal amount from, and including, the most recent date to which interest has been paid or provided for
or, if no interest has been paid, from, and including, August 7, 2017, in each case to, but excluding, the next Interest
Payment Date or Maturity Date, as the case may be. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay, in cash, interest on any overdue amount (including, to the extent permitted by applicable law,
overdue interest) at the rate borne by the Securities. In certain circumstances, Additional Interest shall be payable in accordance
with Section ‎4.09(A), Section ‎4.09(B) and Section ‎6.02(B)
of the Indenture and any reference to “interest” shall be deemed to include any such Additional Interest.


 


2.       Maturity.
The Securities shall mature on July 15, 2022, unless earlier repurchased or converted.


 


3.       Method
of Payment. Except as provided in the Indenture (as defined below), the Company shall pay interest on the Securities to the
Persons who are Holders of record of Securities at the close of business on the Record Date set forth on the face of this Security
immediately preceding the applicable Interest Payment Date. Holders must surrender Securities to a Paying Agent to collect the
principal amount plus, if applicable, accrued and unpaid interest, if any, or the Fundamental Change Repurchase Price, payable
as herein provided on the Maturity Date or Fundamental Change Repurchase Date, as applicable.


 


4.       Paying
Agent, Registrar, Bid Solicitation Agent, Conversion Agent and Custodian. Initially, The Bank of New York Mellon Trust Company,
N.A. (the “Trustee”) shall act as Paying Agent, Registrar, Conversion Agent and Custodian, and the Company
shall act as Bid Solicitation Agent. The Company may change any Paying Agent, Registrar, Bid Solicitation Agent or Conversion
Agent without prior notice.


 


5.       Indenture.
The Company issued the Securities under an Indenture dated as of August 7, 2017 (the “Indenture”) between
the Company and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) (the “TIA”) as amended
and in effect from time to time. The Securities are subject to all terms set forth in the Indenture, and Holders are referred
to the Indenture for a statement of such terms. The Securities are general unsubordinated obligations of the Company limited to
$85,000,000, except as otherwise provided in the Indenture (and except for Securities issued in substitution for destroyed, mutilated,
lost or stolen Securities). Terms used herein without definition and which are defined in the Indenture have the meanings assigned
to them in the Indenture. In the event of any


 




    A-4


     

    

inconsistency
between the terms of this Security and the terms of the Indenture, the terms of the Indenture shall control.


 


6.       No
Redemption; No Sinking Fund. The Securities shall not be redeemable by the Company prior to the Maturity Date; and no sinking
fund is provided for the Securities.


 


7.       Repurchase
at Option of Holder Upon a Fundamental Change. Subject to the terms and conditions of the Indenture, in the event of a Fundamental
Change, each Holder of the Securities shall have the right, at the Holder’s option, to require the Company to repurchase
for cash such Holder’s Securities including any portion thereof which is $1,000 in principal amount or any integral multiple
thereof on the Fundamental Change Repurchase Date, at a price payable in cash equal to the Fundamental Change Repurchase Price.


 


8.       Conversion.


 


Upon
the occurrence of certain events and during certain periods, the Securities shall be convertible into cash, shares of Common Stock,
or a combination thereof in accordance with Article ‎X of the Indenture. To convert a Security, a Holder must
satisfy the requirements of Section ‎10.02(A) of the Indenture. A Holder may convert a portion of a Security
if the portion is $1,000 principal amount or an integral multiple of $1,000 principal amount.


 


Upon
conversion of a Security, the Holder thereof shall be entitled to receive the cash, shares of Common Stock, or a combination thereof,
payable or deliverable upon conversion in accordance with Article ‎X of the Indenture, at the Conversion Rate
specified in the Indenture, as adjusted from time to time as provided in the Indenture.


 


The
Conversion Rate applicable to each Security that is surrendered for conversion, in accordance with the Securities and Article
X of the Indenture, at any time during the Make-Whole Conversion Period with respect to a Make-Whole Fundamental Change shall
be increased to an amount equal to the Conversion Rate that would, but for Section ‎10.15 of the Indenture,
otherwise apply to such Security pursuant to Article X of the Indenture, plus an amount equal to the Make-Whole Applicable Increase.


 


9.       Denominations,
Transfer, Exchange. The Securities are in registered form, without interest coupons, in denominations of integral multiples
of $1,000 principal amount. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service
charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or other similar governmental charge that may be imposed in connection with certain transfers or exchanges
as required by law or set forth in the Indenture. The Company or the Trustee, as the case may be, shall not be required to register
the transfer of or exchange any Security for which the Holder has delivered, and not validly withdrawn, a Purchase Notice in accordance
with the Indenture, except (i) if the Company defaults in the payment of the Fundamental Change Repurchase Price or (ii) with
respect to that portion of the Securities not being repurchased.


 




    A-5


     

    

10.       Persons
Deemed Owners. The registered Holder of a Security may be treated as the owner of such Security for all purposes.


 


11.       Amendments,
Supplements and Waivers. The Indenture contains provisions permitting the Company and the Trustee in certain circumstances,
without the consent of the Holders of the Securities, and in certain other circumstances, with the consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities, to amend or supplement the Indenture or the Securities.


 


12.       Defaults
and Remedies. Subject to certain exceptions, if an Event of Default occurs and is continuing, the Trustee by notice to the
Company or the Holders of at least twenty five percent (25%) in principal amount of the Securities then outstanding by notice
to the Company and the Trustee may declare the principal of, and any accrued and unpaid interest on, all Securities to be due
and payable immediately. If one of certain bankruptcy- and insolvency-related Events of Default occurs and is continuing, the
principal of, and accrued and unpaid interest on, all the Securities shall automatically become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder. Subject to certain exceptions, the Holders of a
majority in aggregate principal amount of the Securities then outstanding by written notice to the Trustee may rescind or annul
an acceleration and its consequences if certain conditions set forth in the Indenture are satisfied.


 


13.       Trustee
Dealings with the Company. The Trustee under the Indenture, or any banking institution serving as successor Trustee thereunder,
in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee.


 


14.       Authentication.
This Security shall not be valid until authenticated by the manual or facsimile signature of the Trustee or an authenticating
agent in accordance with the Indenture.


 


15.       Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (Uniform Gifts to Minors Act).


 


THE
COMPANY SHALL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:


 


Accuray
Incorporated 


1310
Chesapeake Terrace 


Sunnyvale,
California 94089 


Attn:
General Counsel


 




    A-6


     

    

ATTACHMENT
1


 


FORM
OF ASSIGNMENT


 





	 
	I
    or we assign to	 
	PLEASE
        INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER

         

 

	 
	(please
                    print or type name and address)

         

	 


	the
                                         within Security and all rights thereunder, and hereby irrevocably constitute and appoint

         



	Attorney
                                         to transfer the Security on the books of the Company with full power of substitution
                                         in the premises.

                                                                                       

        










	





	Date:	 	 	 
	 	 	 	NOTICE: The signature on this assignment
                                  must correspond with the name as it appears upon the face of the within Security in every particular
                                  without alteration or enlargement or any change whatsoever and be guaranteed by a guarantor
                                  institution participating in the Securities Transfer Agents Medallion Program or in such other
                                  guarantee program acceptable to the Registrar.


 







	 

                           Signature Guarantee:






	 	 



 






    A-7


     

    

In
connection with any transfer of this Security occurring prior to the Resale Restriction Termination Date, the undersigned confirms
that it is making, and it has not utilized any general solicitation or general advertising in connection with, the transfer:


 


[Check
One]


 





	(1)	____	to Accuray Incorporated or any
    Subsidiary thereof; or
	(2)	____	pursuant to a registration statement which
    has become effective under the Securities Act of 1933, as amended (the “Securities Act”) (which is not
    expected to be available); or
	(3)	____	to a Qualified Institutional Buyer in compliance
    with Rule 144A under the Securities Act; or
	(4)	____	pursuant to an exemption from registration
    provided by Rule 144 under the Securities Act (if available) or any other available exemption from the registration requirements
    of the Securities Act.







 





Unless
one of the items (1) through (4) is checked, the Registrar shall refuse to register any of the Securities evidenced by this certificate
in the name of any person other than the registered Holder thereof; provided, however, that if item (4) is checked,
the Company, the transfer agent or the Registrar may require, prior to registering any such transfer of the Securities, in their
sole discretion, such written legal opinions, certifications and other evidence as the Registrar or the Company have reasonably
requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. If item (3) is checked, the purchaser must complete the certification below.


 


If
none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Security in the name
of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein
and in the Indenture shall have been satisfied.


 


	Dated:	 	Signed:	 	 
	 	 	 	 (Sign exactly as name appears on the other side of this Security)	 



 





	Signature Guarantee:	 	 






 




    A-8


     

    

TO
BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED


 


The
undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within
the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant
to Rule 144A and acknowledges that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.


 


	Dated:	 		 	 
	 	 	 	NOTICE:To be executed by an executive officer	 



 




    A-9


     

    

ATTACHMENT
2


 


FORM
OF CONVERSION NOTICE


 


	To convert this Security in accordance
    with the Indenture, check the box: ☐
	 
	To
                                         convert only part of this Security, state the principal amount to be converted (must
                                         be in multiples of $1,000):

         

        $__________________

         

        If
        you want the stock certificate representing the Common Stock, if any, issuable 

        upon
        conversion made out in another person’s name, fill in the form below:


         

         ___________________________________________________________________________________________________________________________________________

        

        

        (Insert other person’s soc. sec. or tax I.D. no.)

        

         ___________________________________________________________________________________________________________________________________________

        

         ___________________________________________________________________________________________________________________________________________

        

         ___________________________________________________________________________________________________________________________________________

        

         ___________________________________________________________________________________________________________________________________________

        (Print or type other person’s name, address and zip code)

        






 


	Dated:	 	Signature(s):	 	 
	 	 	 	(Sign exactly as your name(s) appear(s) on the other side of this
    Security)	 



 












	Signature(s) guaranteed by:	 		 	 
	 	 	 	(All signatures must be guaranteed by a guarantor
    institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable
    to the Trustee.)	 




 










    A-10


     

    

ATTACHMENT
3


 


FORM
OF PURCHASE NOTICE


 


Certificate
No. of Security: ___________


 


If
you want to elect to have this Security purchased by the Company pursuant to Section ‎3.02 of the Indenture,
check the box: ☐


 


If
you want to elect to have only part of this Security purchased by the Company pursuant to Section ‎3.02 of the
Indenture, state the principal amount to be so purchased by the Company:


 


$
__________________________________

(in an integral multiple of $1,000)


 


 


	Dated:	 	Signature(s):	 	 
	 	 	 	(Sign exactly as your name(s) appear(s) on the other side of this
    Security)	 



 












	Signature(s) guaranteed by:	 		 	 
	 	 	 	(All signatures must be guaranteed by a guarantor
    institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable
    to the Trustee.)	 






 


 



    A-11


     

    

SCHEDULE
A3


 


SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY



Accuray Incorporated

3.75% Convertible Senior Notes due 2022


 


The
initial principal amount of this Global Security is EIGHTY-FIVE MILLION DOLLARS ($85,000,000). The following increases or decreases
in this Global Security have been made:


 


	Date
                                         of Exchange 
	Amount
                                         of decrease in Principal Amount of this Global Security 
	Amount
                                         of increase in Principal Amount of this Global Security 
	Principal
                                         Amount of this Global Security following such decrease or increase 
	Signature
                                         of authorized signatory of Trustee or Custodian 

					
	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 


	 

	 

	 

	 

	 







 


_____________


3
This is included for Global Securities.


 


A-1 






    


     

    




EXHIBIT
B-1A


 


FORM
OF PRIVATE PLACEMENT LEGEND (SECURITIES)


 


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


 


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


 


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


 


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



 


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



 


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



 


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



 


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


 


 


B-1A 




    	 



    	 



    

EXHIBIT
B-1B


 


FORM
OF PRIVATE PLACEMENT LEGEND (COMMON STOCK)


 


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


 


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


 


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


 


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



 


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



 


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



 


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



 


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


 


 


B-1B




    	 



    	 



    

EXHIBIT
B-2


 


FORM
OF LEGEND FOR GLOBAL SECURITY


 


Any
Global Security authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required
in the case of a Restricted Security) in substantially the following form:


 


THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.


 


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


 


TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION ‎2.16 OF THE INDENTURE.










 


 


 


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