exhibit41-indenture






                                               Exhibit 4.1                                                            FIVE9, INC.                                                         AND                                                              U.S. BANK NATIONAL ASSOCIATION,                                                                           as Trustee                                                                          INDENTURE                                                                     Dated as of May 27, 2020    0.500% Convertible Senior Notes due 2025                                                                                                                       





 






                               TABLE OF CONTENTS                                                                                                                    PAGE                                     ARTICLE 1                                   DEFINITIONS   Section 1.01 .  Definitions ............................................................................................................... 1  Section 1.02 .  References to Interest ............................................................................................ 12                                     ARTICLE 2          ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES   Section 2.01 .  Designation and Amount....................................................................................... 13  Section 2.02 .  Form of Notes ....................................................................................................... 13  Section 2.03 .  Date and Denomination of Notes; Payments of Interest and Defaulted             Amounts ................................................................................................................. 14  Section 2.04 .  Execution, Authentication and Delivery of Notes ................................................. 15  Section 2.05 .  Exchange and Registration of Transfer of Notes; Restrictions on Transfer;             Depositary .............................................................................................................. 16  Section 2.06 .  Mutilated, Destroyed, Lost or Stolen Notes .......................................................... 22  Section 2.07 .  Temporary Notes ................................................................................................... 23  Section 2.08 .  Cancellation of Notes Paid, Converted, Etc ......................................................... 24  Section 2.09 .  CUSIP Numbers .................................................................................................... 24  Section 2.10 .  Additional Notes; Repurchases ............................................................................. 24                                     ARTICLE 3                            SATISFACTION AND DISCHARGE   Section 3.01 .  Satisfaction and Discharge ................................................................................... 25                                     ARTICLE 4                       PARTICULAR COVENANTS OF THE COMPANY   Section 4.01 .  Payment of Principal and Interest ........................................................................ 25  Section 4.02 .  Maintenance of Office or Agency ......................................................................... 25  Section 4.03 .  Appointments to Fill Vacancies in Trustee’s Office ............................................. 26  Section 4.04 .  Provisions as to Paying Agent .............................................................................. 26  Section 4.05 .  Existence ............................................................................................................... 27  Section 4.06 .  Rule 144A Information Requirement and Annual Reports ................................... 27  Section 4.07 .  Stay, Extension and Usury Laws ........................................................................... 29  Section 4.08 .  Compliance Certificate; Statements as to Defaults .............................................. 29  Section 4.09 .  Further Instruments and Acts ............................................................................... 30                                         i   





 






                                  ARTICLE 5             LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE   Section 5.01 .  Lists of Holders ..................................................................................................... 30  Section 5.02 .  Preservation and Disclosure of Lists .................................................................... 30                                     ARTICLE 6                              DEFAULTS AND REMEDIES   Section 6.01 .  Events of Default ................................................................................................... 30  Section 6.02 .  Acceleration; Rescission and Annulment .............................................................. 32  Section 6.03 .  Additional Interest ................................................................................................ 33  Section 6.04 .  Payments of Notes on Default; Suit Therefor ....................................................... 34  Section 6.05 .  Application of Monies Collected by Trustee ......................................................... 35  Section 6.06 .  Proceedings by Holders ........................................................................................ 36  Section 6.07 .  Proceedings by Trustee ......................................................................................... 37  Section 6.08 .  Remedies Cumulative and Continuing .................................................................. 37  Section 6.09 .  Direction of Proceedings and Waiver of Defaults by Majority of Holders .......... 38  Section 6.10 .  Notice of Defaults ................................................................................................. 38  Section 6.11 .  Undertaking to Pay Costs ..................................................................................... 38                                     ARTICLE 7                              CONCERNING THE TRUSTEE   Section 7.01 .  Duties and Responsibilities of Trustee .................................................................. 39  Section 7.02 .  Reliance on Documents, Opinions, Etc................................................................. 41  Section 7.03 .  No Responsibility for Recitals, Etc ....................................................................... 42  Section 7.04 .  Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note             Registrar May Own Notes ...................................................................................... 42  Section 7.05 .  Monies and Shares of Common Stock to Be Held in Trust ................................... 42  Section 7.06 .  Compensation and Expenses of Trustee ............................................................... 42  Section 7.07 .  Officer’s Certificate as Evidence .......................................................................... 43  Section 7.08 .  Eligibility of Trustee ............................................................................................. 43  Section 7.09 .  Resignation or Removal of Trustee ....................................................................... 44  Section 7.10 .  Acceptance by Successor Trustee ......................................................................... 45  Section 7.11 .  Succession by Merger, Etc .................................................................................... 45  Section 7.12 .  Trustee’s Application for Instructions from the Company ................................... 46                                     ARTICLE 8                             CONCERNING THE HOLDERS   Section 8.01 .  Action by Holders ................................................................................................. 46  Section 8.02 .  Proof of Execution by Holders .............................................................................. 46  Section 8.03 .  Who Are Deemed Absolute Owners ...................................................................... 46  Section 8.04 .  Company-Owned Notes Disregarded ................................................................... 47  Section 8.05 .  Revocation of Consents; Future Holders Bound .................................................. 47                                         ii                                                                                 





 






                                  ARTICLE 9                                HOLDERS’ MEETINGS   Section 9.01 .  Purpose of Meetings ............................................................................................. 48  Section 9.02 .  Call of Meetings by Trustee .................................................................................. 48  Section 9.03 .  Call of Meetings by Company or Holders ............................................................ 48  Section 9.04 .  Qualifications for Voting ...................................................................................... 49  Section 9.05 .  Regulations ........................................................................................................... 49  Section 9.06 .  Voting .................................................................................................................... 49  Section 9.07 .  No Delay of Rights by Meeting ............................................................................. 50                                    ARTICLE 10                             SUPPLEMENTAL INDENTURES   Section 10.01 .  Supplemental Indentures Without Consent of Holders ....................................... 50  Section 10.02 .  Supplemental Indentures with Consent of Holders ............................................. 51  Section 10.03 .  Effect of Supplemental Indentures ...................................................................... 52  Section 10.04 .  Notation on Notes ............................................................................................... 52  Section 10.05 .  Evidence of Compliance of Supplemental Indenture to Be Furnished             Trustee ................................................................................................................... 53                                    ARTICLE 11                 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE   Section 11.01 .  Company May Consolidate, Etc. on Certain Terms ........................................... 53  Section 11.02 .  Successor Corporation to Be Substituted ........................................................... 53  Section 11.03 .  Opinion of Counsel to Be Given to Trustee ........................................................ 54                                    ARTICLE 12          IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS   Section 12.01 .  Indenture and Notes Solely Corporate Obligations ............................................ 54                                    ARTICLE 13                              INTENTIONALLY OMITTED                                    ARTICLE 14                               CONVERSION OF NOTES   Section 14.01 .  Conversion Privilege .......................................................................................... 55  Section 14.02 .  Conversion Procedure; Settlement Upon Conversion. ....................................... 58  Section 14.03 .  Increased Conversion Rate Applicable to Certain Notes Surrendered in             Connection with Make-Whole Fundamental Changes or During a             Redemption Period ................................................................................................ 62  Section 14.04 .  Adjustment of Conversion Rate ........................................................................... 64  Section 14.05 . Adjustments of Prices ........................................................................................... 74  Section 14.06 .  Shares to Be Fully Paid ...................................................................................... 74                                         iii                                                                                 





 






Section 14.07 .  Effect of Recapitalizations, Reclassifications and Changes of the Common             Stock. ...................................................................................................................... 74  Section 14.08 .  Certain Covenants .............................................................................................. 76  Section 14.09 .  Responsibility of Trustee ..................................................................................... 76  Section 14.10 .  Notice to Holders Prior to Certain Actions ........................................................ 77  Section 14.11 .  Stockholder Rights Plans .................................................................................... 78  Section 14.12 .  Exchange in Lieu of Conversion. ........................................................................ 78                                    ARTICLE 15                     REPURCHASE OF NOTES AT OPTION OF HOLDERS   Section 15.01 .  Intentionally Omitted. ......................................................................................... 79  Section 15.02 .  Repurchase at Option of Holders Upon a Fundamental Change ....................... 79  Section 15.03 .  Withdrawal of Fundamental Change Repurchase Notice .................................. 81  Section 15.04 .  Deposit of Fundamental Change Repurchase Price ........................................... 82  Section 15.05 .  Covenant to Comply with Applicable Laws Upon Repurchase of Notes ............ 83                                    ARTICLE 16                               OPTIONAL REDEMPTION   Section 16.01 .  Optional Redemption .......................................................................................... 83  Section 16.02 .  Notice of Optional Redemption; Selection of Notes ........................................... 83  Section 16.03 .  Payment of Notes Called for Redemption ........................................................... 85  Section 16.04 .  Restrictions on Redemption ................................................................................ 85                                    ARTICLE 17                             MISCELLANEOUS PROVISIONS   Section 17.01 .  Provisions Binding on Company’s Successors ................................................... 85  Section 17.02 .  Official Acts by Successor Corporation .............................................................. 85  Section 17.03 .  Addresses for Notices, Etc .................................................................................. 85  Section 17.04 .  Governing Law; Jurisdiction .............................................................................. 86  Section 17.05 .  Evidence of Compliance with Conditions Precedent; Certificates and             Opinions of Counsel to Trustee ............................................................................. 87  Section 17.06 .  Legal Holidays .................................................................................................... 87  Section 17.07 .  No Security Interest Created ............................................................................... 87  Section 17.08 .  Benefits of Indenture ........................................................................................... 87  Section 17.09 .  Table of Contents, Headings, Etc ....................................................................... 87  Section 17.10 .  Authenticating Agent ........................................................................................... 88  Section 17.11 .  Execution in Counterparts .................................................................................. 89  Section 17.12 .  Severability ......................................................................................................... 89  Section 17.13 .  Waiver of Jury Trial ............................................................................................ 89  Section 17.14 .  Force Majeure .................................................................................................... 89  Section 17.15 .  Calculations ........................................................................................................ 89  Section 17.16 .  U.S.A. PATRIOT Act ........................................................................................... 90                                      EXHIBIT                                        iv                                                                                 





 






Exhibit A    Form of Note                                                 A-1                                          v                                                                                 





 






         INDENTURE, dated as of May 27, 2020, between FIVE9, INC., a Delaware corporation,  as issuer (the “Company”, as more fully set forth in Section 1.01) and U.S. BANK NATIONAL  ASSOCIATION, a national banking association, as trustee (the “Trustee”, as more fully set  forth in Section 1.01).                                 W I T N E S S E T H:         WHEREAS, for its lawful corporate purposes, the Company has duly authorized the  issuance of its 0.500% Convertible Senior Notes due 2025 (the “Notes”), initially in an aggregate  principal amount not to exceed $747,500,000, and in order to provide the terms and conditions  upon which the Notes are to be authenticated, issued and delivered, the Company has duly  authorized the execution and delivery of this Indenture; and         WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note,  the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the  Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms  hereinafter provided; and         WHEREAS, all acts and things necessary to make the Notes, when executed by the  Company and authenticated and delivered by the Trustee or a duly authorized authenticating  agent, as in this Indenture provided, the valid, binding and legal obligations of the Company, and  this Indenture a valid agreement according to its terms, have been done and performed, and the  execution of this Indenture and the issuance hereunder of the Notes have in all respects been duly  authorized.         NOW, THEREFORE, THIS INDENTURE WITNESSETH:         That in order to declare the terms and conditions upon which the Notes are, and are to be,  authenticated, issued and delivered, and in consideration of the premises and of the purchase and  acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the  Trustee for the equal and proportionate benefit of the respective Holders from time to time of the  Notes (except as otherwise provided below), as follows:                                     ARTICLE 1                                   DEFINITIONS         Section 1.01.  Definitions.  The terms defined in this Section 1.01 (except as herein  otherwise expressly provided or unless the context otherwise requires) for all purposes of this  Indenture and of any indenture supplemental hereto shall have the respective meanings specified  in this Section 1.01.  The words “herein,” “hereof,” “hereunder,” and words of similar import  refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.   The terms defined in this Article include the plural as well as the singular.         “Additional Interest” means all amounts, if any, payable pursuant to Section 4.06(d),  Section 4.06(e) and Section 6.03, as applicable.                                                                                                                          





 






      “Additional Shares” shall have the meaning specified in Section 14.03(a).         “Affiliate” of any specified Person means any other Person directly or indirectly  controlling or controlled by or under direct or indirect common control with such specified  Person.  For the purposes of this definition, “control,” when used with respect to any specified  Person means the power to direct or cause the direction of the management and policies of such  Person, directly or indirectly, whether through the ownership of voting securities, by contract or  otherwise; and the terms “controlling” and “controlled” have meanings correlative to the  foregoing. Notwithstanding anything to the contrary herein, the determination of whether one  Person is an “Affiliate” of another Person for purposes of this Indenture shall be made based on  the facts at the time such determination is made or required to be made, as the case may be,  hereunder.         “Bid Solicitation Agent” means the Company or the Person appointed by the Company  to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i).  The  Company shall initially act as the Bid Solicitation Agent.         “Board of Directors” means the board of directors of the Company or a committee of  such board duly authorized to act for it hereunder.         “Board Resolution” means a copy of a resolution certified by the Secretary or an  Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to  be in full force and effect on the date of such certification, and delivered to the Trustee.         “Business Day” means, with respect to any Note, any day other than a Saturday, a  Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by  law or executive order to close or be closed.           “Capital Stock” means, for any entity, any and all shares, interests, rights to purchase,  warrants, options, participations or other equivalents of or interests in (however designated)  stock issued by that entity.         “Cash Settlement” shall have the meaning specified in Section 14.02(a).         “Clause A Distribution” shall have the meaning specified in Section 14.04(c).         “Clause B Distribution” shall have the meaning specified in Section 14.04(c).         “Clause C Distribution” shall have the meaning specified in Section 14.04(c).         “close of business” means 5:00 p.m. (New York City time).         “Combination Settlement” shall have the meaning specified in Section 14.02(a).         “Commission” means the U.S. Securities and Exchange Commission.         “Common Equity” of any Person means Capital Stock of such Person that is generally  entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a                                        2                                                                                 





 






corporation, to vote or otherwise participate in the selection of the governing body, partners,  managers or others that will control the management or policies of such Person.         “Common Stock” means the common stock of the Company, par value $0.001 per share,  at the date of this Indenture, subject to Section 14.07.         “Company” shall have the meaning specified in the first paragraph of this Indenture, and  subject to the provisions of Article 11, shall include its successors and assigns.         “Company Order” means a written order of the Company, signed by the Company’s  Chief Executive Officer, Chief Financial Officer, any President or Vice President (whether or not  designated by a number or numbers or word or words added before or after the title “President”  or “Vice President”) or the Company’s Treasurer, and delivered to the Trustee.         “Conversion Agent” shall have the meaning specified in Section 4.02.         “Conversion Consideration” shall have the meaning specified in Section 14.12.         “Conversion Date” shall have the meaning specified in Section 14.02(c).         “Conversion Obligation” shall have the meaning specified in Section 14.01(a).         “Conversion Price” means as of any time, $1,000, divided by the Conversion Rate as of  such time.         “Conversion Rate” shall have the meaning specified in Section 14.01(a).         “Corporate Trust Office” means the designated office of the Trustee at which at any  time this Indenture shall be administered, which office at the date hereof is located at 633 West  Fifth Street, 24th Floor, Los Angeles, CA 90071 (Five9, Inc.) or such other address as the Trustee  may designate from time to time by notice to the Holders and the Company, or the designated  corporate trust office of any successor trustee (or such other address as such successor trustee  may designate from time to time by notice to the Holders and the Company).          “Custodian” means the Trustee, as custodian for The Depository Trust Company, with  respect to the Global Notes, or any successor entity thereto.         “Daily Conversion Value” means, for each of the 40 consecutive Trading Days during  the relevant Observation Period, one-sixtieth (1/40) of the product of (a) the Conversion Rate on  such Trading Day and (b) the Daily VWAP for such Trading Day.         “Daily Measurement Value” means the Specified Dollar Amount (if any), divided by  40.         “Daily Settlement Amount,” for each of the 40 consecutive Trading Days during the  relevant Observation Period, shall consist of:                                         3                                                                                 





 






            (a)   cash in an amount equal to the lesser of (i) the Daily Measurement Value        and (ii) the Daily Conversion Value on such Trading Day; and               (b)   if the Daily Conversion Value on such Trading Day exceeds the Daily        Measurement Value, a number of shares of Common Stock equal to (i) the difference        between the Daily Conversion Value and the Daily Measurement Value, divided by (ii)        the Daily VWAP for such Trading Day.         “Daily VWAP” means the per share volume-weighted average price as displayed under  the heading “Bloomberg VWAP” on Bloomberg page “FIVN <equity> AQR” (or its equivalent  successor if such page is not available) in respect of the period from the scheduled open of  trading until the scheduled close of trading of the primary trading session on such Trading Day  (or if such volume-weighted average price is unavailable, the market value of one share of the  Common Stock on such Trading Day determined, using a volume-weighted average method, by  a nationally recognized independent investment banking firm retained for this purpose by the  Company).  The “Daily VWAP” shall be determined without regard to after-hours trading or any  other trading outside of the regular trading session trading hours.         “Default” means any event that is, or after notice or passage of time, or both, would be,  an Event of Default.         “Defaulted Amounts” means any amounts on any Note (including, without limitation,  the Redemption Price, the Fundamental Change Repurchase Price, principal and interest) that are  payable but are not punctually paid or duly provided for.         “delivered” with respect to any notice to be delivered, given or mailed to a Holder  pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its designee)  pursuant to the standing instructions from the Depositary or its designee, including by electronic  mail in accordance with accepted practices or procedures at the Depositary (in the case of a  Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it  appears on the Note Register, in each case in accordance with Section 17.03. Notice so  “delivered” shall be deemed to include any notice to be “mailed” or “given,” as applicable, under  this Indenture.         “Depositary” means, with respect to each Global Note, the Person specified in Section  2.05(c) as the Depositary with respect to such Notes, until a successor shall have been appointed  and become such pursuant to the applicable provisions of this Indenture, and thereafter,  “Depositary” shall mean or include such successor.         “Designated Institution” shall have the meaning specified in Section 14.12.         “Distributed Property” shall have the meaning specified in Section 14.04(c).         “Effective Date” shall have the meaning specified in Section 14.03(c), except that, as  used in Section 14.04 and Section 14.05, “Effective Date” means the first date on which shares  of the Common Stock trade on the applicable exchange or in the applicable market, regular way,  reflecting the relevant share split or share combination, as applicable.                                         4                                                                                 





 






      “Event of Default” shall have the meaning specified in Section 6.01.         “Ex-Dividend Date” means the first date on which shares of the Common Stock trade on  the applicable exchange or in the applicable market, regular way, without the right to receive the  issuance, dividend or distribution in question, from the Company or, if applicable, from the seller  of Common Stock on such exchange or market (in the form of due bills or otherwise) as  determined by such exchange or market.         “Exchange” means The Nasdaq Global Market.         “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules  and regulations promulgated thereunder.         “Exchange Election” shall have the meaning specified in Section 14.12.         “Form of Assignment and Transfer” shall mean the “Form of Assignment and  Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.         “Form of Fundamental Change Repurchase Notice” shall mean the “Form of  Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note attached  hereto as Exhibit A.         “Form of Note” shall mean the “Form of Note” attached hereto as Exhibit A.         “Form of Notice of Conversion” shall mean the “Form of Notice of Conversion”  attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.         “Fundamental Change” shall be deemed to have occurred at the time after the Notes are  originally issued if any of the following occurs prior to the Maturity Date:               (a)   a “person” or “group” within the meaning of Section 13(d) of the        Exchange Act, other than the Company, its Wholly Owned Subsidiaries and the        employee benefit plans of the Company and its Wholly Owned Subsidiaries, files a        Schedule TO or any schedule, form or report under the Exchange Act disclosing that such        person or group has become the direct or indirect “beneficial owner,” as defined in Rule        13d-3 under the Exchange Act, of the Common Stock representing more than 50% of the        voting power of the Common Stock;               (b)   the consummation of (A) any recapitalization, reclassification or change of        the Common Stock (other than changes resulting from a subdivision or combination) as a        result of which the Common Stock would be converted into, or exchanged for, stock,        other securities, other property or assets (other than a transaction described in clause (B)        below; (B) any share exchange, consolidation or merger of the Company pursuant to        which the Common Stock will be converted into cash, securities or other property or        assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions        of all or substantially all of the consolidated assets of the Company and its Subsidiaries,        taken as a whole, to any Person other than one of the Company’s Wholly Owned        Subsidiaries; provided, however, that a transaction described in clauses (A) or (B) in                                        5                                                                                 





 






      which the holders of all classes of the Company’s Common Equity immediately prior to        such transaction own, directly or indirectly, more than 50% of all classes of Common        Equity of the continuing or surviving corporation or transferee or the parent thereof        immediately after such transaction in substantially the same proportions as such        ownership immediately prior to such transaction shall not be a Fundamental Change        pursuant to this clause (b);               (c)   the stockholders of the Company approve any plan or proposal for the        liquidation or dissolution of the Company; or               (d)   the Common Stock (or other common stock underlying the Notes) ceases        to be listed or quoted on any of The New York Stock Exchange, The NASDAQ Global        Select Market or the Exchange (or any of their respective successors);   provided, however, that a transaction or transactions described in clauses (a) or (b) above shall  not constitute a Fundamental Change if at least 90% of the consideration received or to be  received by the common stockholders of the Company, excluding cash payments for fractional  shares and cash payments made in respect of dissenters’ statutory appraisal rights, in connection  with such transaction or transactions consists of shares of common stock that are listed or quoted  on any of The New York Stock Exchange, The Nasdaq Global Select Market or the Exchange  (or any of their respective successors) or will be so listed or quoted when issued or exchanged in  connection with such transaction or transactions and as a result of such transaction or  transactions the Notes become convertible into such consideration, excluding cash payments for  fractional shares and cash payments made in respect of dissenters’ statutory appraisal rights  (subject to the provisions of Section 14.02(a)). If any transaction in which the Common Stock is  replaced by the equity securities of another entity occurs, following completion of any related  Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a  Fundamental Change or a Make-Whole Fundamental Change but for the proviso immediately  following clause (d) of this definition, following the effective date of such transaction) references  to the Company in this definition shall instead be references to such other entity.   For purposes of this definition of “Fundamental Change,” any transaction that constitutes a  Fundamental Change pursuant to both clause (a) and clause (b) of such definition (without giving  effect to the proviso in clause (b)) shall be deemed a Fundamental Change solely under clause  (b) of such definition (subject to the proviso in clause (b)).         “Fundamental Change Company Notice” shall have the meaning specified in Section  15.02(c).         “Fundamental Change Repurchase Date” shall have the meaning specified in Section  15.02(a).         “Fundamental Change Repurchase Notice” shall have the meaning specified in Section  15.02(b)(i).         “Fundamental Change Repurchase Price” shall have the meaning specified in Section  15.02(a).                                        6                                                                                 





 






      “Global Note” shall have the meaning specified in Section 2.05(b).         “Holder,” as applied to any Note, or other similar terms (but excluding the term  “beneficial holder”), shall mean any Person in whose name at the time a particular Note is  registered on the Note Register.         “Indenture” means this instrument as originally executed or, if amended or  supplemented as herein provided, as so amended or supplemented.         “Interest Payment Date” means each June 1 and December 1 of each year, beginning on  December 1, 2020.         “Last Reported Sale Price” of the Common Stock on any date means the closing sale  price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if  more than one in either case, the average of the average bid and the average ask prices) on that  date as reported in composite transactions for the principal U.S. national or regional securities  exchange on which the Common Stock is traded.  If the Common Stock is not listed for trading  on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale  Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on  the relevant date as reported by OTC Markets Group Inc. or a similar organization.  If the  Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the  mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of  at least three nationally recognized independent investment banking firms selected by the  Company for this purpose. The “Last Reported Sale Price” shall be determined without regard  to after-hours trading or any other trading outside of the regular trading session trading hours.         “Make-Whole Fundamental Change” means any transaction or event that constitutes a  Fundamental Change (as defined above and determined after giving effect to any exceptions to  or exclusions from such definition, but without regard to the proviso in clause (b) of the  definition thereof).         “Make-Whole Fundamental Change Period” shall have the meaning specified in  Section 14.03(a).         “Market Disruption Event” means, for the purposes of determining amounts due upon  conversion (a) a failure by the primary U.S. national or regional securities exchange or market on  which the Common Stock is listed or admitted for trading to open for trading during its regular  trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any  Scheduled Trading Day for the Common Stock for more than one half-hour period in the  aggregate during regular trading hours of any suspension or limitation imposed on trading (by  reason of movements in price exceeding limits permitted by the relevant stock exchange or  otherwise) in the Common Stock or in any options contracts or futures contracts relating to the  Common Stock.         “Maturity Date” means June 1, 2025.         “Measurement Period” shall have the meaning specified in Section 14.01(b)(i).                                         7                                                                                 





 






      “Merger Event” shall have the meaning specified in Section 14.07(a).         “Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals  of this Indenture.         “Note Register” shall have the meaning specified in Section 2.05(a).         “Note Registrar” shall have the meaning specified in Section 2.05(a).         “Notice of Conversion” shall have the meaning specified in Section 14.02(b).         “Observation Period” with respect to any Note surrendered for conversion means:  (i) subject to clause (ii), if the relevant Conversion Date occurs prior to March 1, 2025, the 40  consecutive Trading Day period beginning on, and including, the second Trading Day  immediately succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs  during a Redemption Period, the 40 consecutive Trading Days beginning on, and including, the  41st Scheduled Trading Day immediately preceding such Redemption Date; and (iii) subject to  clause (ii), if the relevant Conversion Date occurs on or after March 1, 2025, the 40 consecutive  Trading Days beginning on, and including, the 41st Scheduled Trading Day immediately  preceding the Maturity Date.         “Offering Memorandum” means the preliminary offering memorandum dated May 21,  2020, as supplemented by the related pricing term sheet dated May 21, 2020, relating to the  offering and sale of the Notes.         “Officer” means, with respect to the Company,  the Chief Executive Officer, the Chief  Financial Officer, the Chief Accounting Officer, the Treasurer, the Secretary, or any President or  Vice President (whether or not designated by a number or numbers or word or words added  before or after the title “President” or “Vice President”).         “Officer’s Certificate,” when used with respect to the Company, means a certificate that  is delivered to the Trustee and that is signed by an Officer of the Company.  Each such certificate  shall include the statements provided for in Section 17.05 if and to the extent required by the  provisions of such Section.  The Officer giving an Officer’s Certificate pursuant to Section 4.08  shall be the principal executive, financial or accounting officer of the Company.         “open of business” means 9:00 a.m. (New York City time).         “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be  an employee of or counsel to the Company, or other counsel reasonably acceptable to the  Trustee, that is delivered to the Trustee, which opinion may contain customary exceptions and  qualifications as to the matters set forth therein.  Each such opinion shall include the statements  provided for in Section 17.05 if and to the extent required by the provisions of such Section  17.05.         “Optional Redemption” shall have the meaning specified in Section 16.01.                                         8                                                                                 





 






      “outstanding,” when used with reference to Notes, shall, subject to the provisions of  Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the  Trustee under this Indenture, except:               (a)   Notes theretofore canceled by the Trustee or accepted by the Trustee for        cancellation;               (b)   Notes, or portions thereof, that have become due and payable and in        respect of which monies in the necessary amount shall have been deposited in trust with        the Trustee or with any Paying Agent (other than the Company) or shall have been set        aside and segregated in trust by the Company (if the Company shall act as its own Paying        Agent);               (c)   Notes that have been paid pursuant to Section 2.06 or Notes in lieu of        which, or in substitution for which, other Notes shall have been authenticated and        delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is        presented that any such Notes are held by protected purchasers in due course;                (d)   Notes converted pursuant to Article 14 and required to be cancelled        pursuant to Section 2.08;                (e)   Notes redeemed pursuant to Article 16; and                (f)   Notes repurchased by the Company pursuant to the penultimate sentence        of Section 2.10.          “Paying Agent” shall have the meaning specified in Section 4.02.         “Person” means an individual, a corporation, a limited liability company, an association,  a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a  government or an agency or a political subdivision thereof.         “Physical Notes” means permanent certificated Notes in registered form issued in  denominations of $1,000 principal amount and multiples thereof.         “Physical Settlement” shall have the meaning specified in Section 14.02(a).         “Predecessor Note” of any particular Note means every previous Note evidencing all or  a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this  definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for  a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the  mutilated, lost, destroyed or stolen Note that it replaces.         “Record Date” means, with respect to any dividend, distribution or other transaction or  event in which the holders of Common Stock (or other applicable security) have the right to  receive any cash, securities or other property or in which the Common Stock (or such other  security) is exchanged for or converted into any combination of cash, securities or other  property, the date fixed for determination of holders of the Common Stock (or such other                                        9                                                                                 





 






security) entitled to receive such cash, securities or other property (whether such date is fixed by  the Board of Directors, by statute, by contract or otherwise).         “Redemption Date” shall have the meaning specified in Section 16.02(a).         “Redemption Notice” shall have the meaning specified in Section 16.02(a).         “Redemption Notice Date” means the date on which a Redemption Notice is delivered  pursuant to Section 16.02.         “Redemption Period” means the period from, and including, the relevant Redemption  Notice Date until the close of business on the second Scheduled Trading Day immediately  preceding the related Redemption Date.         “Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.01,  100% of the aggregate principal amount of such Notes, plus accrued and unpaid interest, if any,  to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record  Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest  accrued to the Interest Payment Date will be paid to Holders of record of such Notes as of the  close of business on such Regular Record Date, and the Redemption Price will be equal to 100%  of the aggregate principal amount of such Notes).         “Reference Property” shall have the meaning specified in Section 14.07(a).         “Regular Record Date,” with respect to any Interest Payment Date, shall mean the  May 15 or November 15 (whether or not such day is a Business Day) immediately preceding the  applicable June 1 and December 1 Interest Payment Date, respectively.         “Resale Restriction Termination Date” shall have the meaning specified in Section  2.05(c).         “Responsible Officer” means, when used with respect to the Trustee, any officer within  the corporate trust department of the Trustee, including any vice president, assistant vice  president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee  who customarily performs functions similar to those performed by the Persons who at the time  shall be such officers, respectively, or to whom any corporate trust matter relating to this  Indenture is referred because of such person’s knowledge of and familiarity with the particular  subject and who, in each case, shall have direct responsibility for the administration of this  Indenture.         “Restricted Securities” shall have the meaning specified in Section 2.05(c).         “Rule 144” means Rule 144 as promulgated under the Securities Act.         “Rule 144A” means Rule 144A as promulgated under the Securities Act.         “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the  principal U.S. national or regional securities exchange or market on which the Common Stock is                                        10                                                                                 





 






listed or admitted for trading.  If the Common Stock is not so listed or admitted for trading,  “Scheduled Trading Day” means a Business Day.         “Securities Act” means the Securities Act of 1933, as amended, and the rules and  regulations promulgated thereunder.         “Settlement Amount” has the meaning specified in Section 14.02(a)(iv).         “Settlement Method” means, with respect to any conversion of Notes, Physical  Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been  elected) by the Company.         “Settlement Notice” has the meaning specified in Section 14.02(a)(iii).         “Significant Subsidiary” means a Subsidiary of the Company that meets the definition  of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X promulgated by the  Commission.         “Specified Dollar Amount” means the maximum cash amount per $1,000 principal  amount of Notes to be received upon conversion as specified in the Settlement Notice related to  any converted Notes (or deemed specified pursuant to Section 14.02(a)).         “Spin-Off” shall have the meaning specified in Section 14.04(c).         “Stock Price” shall have the meaning specified in Section 14.03(c).         “Subsidiary” means, with respect to any Person, any corporation, association,  partnership or other business entity of which more than 50% of the total voting power of shares  of Capital Stock or other interests (including partnership interests) entitled (without regard to the  occurrence of any contingency) to vote in the election of directors, managers, general partners or  trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii)  such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of  such Person.         “Successor Company” shall have the meaning specified in Section 11.01(a).         “Trading Day” means, except for determining amounts due upon conversion as set forth  below, a day on which (i) trading in the Common Stock (or other security for which a closing  sale price must be determined) generally occurs on the Exchange or, if the Common Stock (or  such other security) is not then listed on the Exchange, 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 only, “Trading Day” means a day on which (x) there is no Market Disruption Event                                        11                                                                                 





 






and (y) trading in the Common Stock generally occurs on the Exchange or, if the Common Stock  is not then listed on the Exchange, on the principal other U.S. national or regional securities  exchange on which the Common Stock is then listed or, if the Common Stock is not then listed  on a U.S. national or regional securities exchange, on the principal other market on which the  Common Stock is then listed or admitted for trading, except that if the Common Stock is not so  listed or admitted for trading, “Trading Day” means a Business Day.         “Trading Price” of the Notes on any date of determination means the average of the  secondary market bid quotations per $1,000 principal amount of Notes obtained by the Bid  Solicitation Agent for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New  York City time, on such determination date from three independent nationally recognized  securities dealers the Company selects for this purpose; provided that if three such bids cannot  reasonably be obtained by the Bid Solicitation Agent but two such bids are obtained, then the  average of the two bids shall be used, and if only one such bid can reasonably be obtained by the  Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot  reasonably obtain at least one bid for $5,000,000 principal amount of Notes from a nationally  recognized securities dealer on any determination date, then the Trading Price per $1,000  principal amount of Notes on such determination date shall be deemed to be less than 98% of the  product of the Last Reported Sale Price of the Common Stock and the Conversion Rate.         “transfer” shall have the meaning specified in Section 2.05(c).         “Trigger Event” shall have the meaning specified in Section 14.04(c).         “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in  force at the date of execution of this Indenture; provided, however, that in the event the Trust  Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall  mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so  amended.         “Trustee” means the Person named as the “Trustee” in the first paragraph of this  Indenture until a successor trustee shall have become such pursuant to the applicable provisions  of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a  Trustee hereunder.         “unit of Reference Property” shall have the meaning specified in Section 14.07(a).         “Valuation Period” shall have the meaning specified in Section 14.04(c).         “Wholly Owned Subsidiary” means, with respect to any Person, any direct or indirect  Subsidiary of such Person, except that, solely for purposes of this definition, the reference to  “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to  “100%”.         Section 1.02.  References to Interest.  Unless the context otherwise requires, any  reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include  Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant                                         12                                                                                 





 






to any of Section 4.06(d), Section 4.06(e) and Section 6.03. Unless the context otherwise  requires, any express mention of Additional Interest in any provision hereof shall not be  construed as excluding Additional Interest in those provisions hereof where such express  mention is not made.                                     ARTICLE 2          ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES         Section 2.01.  Designation and Amount.  The Notes shall be designated as the “0.500%  Convertible Senior Notes due 2025.” The aggregate principal amount of Notes that may be  authenticated and delivered under this Indenture is initially limited to $747,500,000, subject to  Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or  in exchange for, or in lieu of other Notes to the extent permitted hereunder.         Section 2.02.  Form of Notes.  The Notes and the Trustee’s certificate of authentication to  be borne by such Notes shall be substantially in the respective forms set forth in Exhibit A, the  terms and provisions of which shall constitute, and are hereby expressly incorporated in and  made a part of this Indenture.  To the extent applicable, the Company and the Trustee, by their  execution and delivery of this Indenture, expressly agree to such terms and provisions and to be  bound thereby. In the case of any conflict between this Indenture and a Note, the provisions of  this Indenture shall control and govern to the extent of such conflict.          Any Global Note may be endorsed with or have incorporated in the text thereof such  legends or recitals or changes not inconsistent with the provisions of this Indenture as may be  required by the Custodian or the Depositary, or as may be required to comply with any  applicable law or any regulation thereunder or with the rules and regulations of any securities  exchange or automated quotation system upon which the Notes may be listed or traded or  designated for issuance or to conform with any usage with respect thereto, or to indicate any  special limitations or restrictions to which any particular Notes are subject.         Any of the Notes may have such letters, numbers or other marks of identification and  such notations, legends or endorsements as the Officer executing the same may approve  (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with  the provisions of this Indenture, or as may be required to comply with any law or with any rule  or regulation made pursuant thereto or with any rule or regulation of any securities exchange or  automated quotation system on which the Notes may be listed or designated for issuance, or to  conform to usage or to indicate any special limitations or restrictions to which any particular  Notes are subject.         Each Global Note shall represent such principal amount of the outstanding Notes as shall  be specified therein and shall provide that it shall represent the aggregate principal amount of  outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of  outstanding Notes represented thereby may from time to time be increased or reduced to reflect  redemptions, repurchases, cancellations, conversions, transfers or exchanges permitted hereby.   Any endorsement of a Global Note to reflect the amount of any increase or decrease in the  amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian,                                         13                                                                                 





 






at the direction of the Trustee, in such manner and upon instructions given by the Holder of such  Notes in accordance with this Indenture.  Payment of principal (including the Redemption Price  and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest  on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a  record date or other means of determining Holders eligible to receive payment is provided for  herein.         Section 2.03.  Date and Denomination of Notes; Payments of Interest and Defaulted  Amounts.  (a) The Notes shall be issuable in registered form without coupons in denominations  of $1,000 principal amount and multiples thereof.  Each Note shall be dated the date of its  authentication and shall bear interest from the date specified on the face of such Note.  Accrued  interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30- day months and, for partial months, on the basis of the number of days actually elapsed in a 30- day month.        (b)  The Person in whose name any Note (or its Predecessor Note) is registered on the  Note Register at the close of business on any Regular Record Date with respect to any Interest  Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.   The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the  office or agency of the Company designated by the Company for such purposes in the United  States of America, which shall initially be the Corporate Trust Office and (y) in the case of any  Global Note, shall be payable by wire transfer of immediately available funds to the account of  the Depositary or its nominee.  The Company shall pay (or cause the Paying Agent to pay)  interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate  principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their  address as it appears in the Note Register and (B) to Holders holding Physical Notes having an  aggregate principal amount of more than $5,000,000, either by check mailed to each such Holder  or, upon written application by such a Holder to the Note Registrar (containing the requisite  information for the Trustee or Paying Agent (if other than the Trustee) to make such wire  transfer) not later than the relevant Regular Record Date, by wire transfer in immediately  available funds to that Holder’s account within the United States of America, and shall remain in  effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global  Note by wire transfer of immediately available funds to the account of the Depositary or its  nominee.          (c)  Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the  relevant payment date but shall accrue interest per annum at the rate borne by the Notes from,  and including, such relevant payment date, and such Defaulted Amounts together with such  interest thereon shall be paid by the Company, at its election in each case, as provided in clause  (i) or (ii) below:                (i)  The Company may elect to make payment of any Defaulted Amounts to        the Persons in whose names the Notes (or their respective Predecessor Notes) are        registered at the close of business on a special record date for the payment of such        Defaulted Amounts, which shall be fixed in the following manner.  The Company shall        notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid        on each Note and the date of the proposed payment (which shall be not less than 25 days                                        14                                                                                 





 






      after the receipt by the Trustee of such notice, unless the Trustee shall consent to an        earlier date), and at the same time the Company shall deposit with the Trustee an amount        of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts        or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the        date of the proposed payment, such money when deposited to be held in trust for the        benefit of the Persons entitled to such Defaulted Amounts as in this clause provided.         Thereupon the Company shall fix a special record date for the payment of such Defaulted        Amounts which shall be not more than 15 days and not less than 10 days prior to the date        of the proposed payment, and not less than 10 days after the receipt by the Trustee of the        notice of the proposed payment.  The Company shall promptly notify the Trustee in        writing of such special record date and the Trustee, in the name and at the expense of the        Company, shall cause notice of the proposed payment of such Defaulted Amounts and        the special record date therefor to be delivered to each Holder at its address as it appears        in the Note Register, or by electronic means to the Depositary in the case of Global        Notes, not less than 10 days prior to such special record date.  Notice of the proposed        payment of such Defaulted Amounts and the special record date therefor having been so        delivered, such Defaulted Amounts shall be paid to the Persons in whose names the        Notes (or their respective Predecessor Notes) are registered at the close of business on        such special record date and shall no longer be payable pursuant to the following clause        (ii) of this Section 2.03(c). The Trustee shall have no responsibility whatsoever for the        calculation of the Defaulted Amounts.               (ii)  The Company may make payment of any Defaulted Amounts in any other        lawful manner not inconsistent with the requirements of any securities exchange or        automated quotation system on which the Notes may be listed or designated for issuance,        and upon such notice as may be required by such exchange or automated quotation        system, if, after written notice given by the Company to the Trustee of the proposed        payment pursuant to this clause, such manner of payment shall be deemed practicable by        the Trustee.         Section 2.04.  Execution, Authentication and Delivery of Notes.  The Notes shall be  signed in the name and on behalf of the Company by the manual or facsimile signature of any of  its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its  Executive or Senior Vice Presidents.         At any time and from time to time after the execution and delivery of this Indenture, the  Company may deliver Notes executed by the Company to the Trustee for authentication, together  with a Company Order for the authentication and delivery of such Notes, and the Trustee in  accordance with such Company Order shall authenticate and deliver such Notes, without any  further action by the Company hereunder; provided that the Trustee shall be entitled to receive  an Officer’s Certificate and an Opinion of Counsel of the Company with respect to the issuance,  authentication and delivery of such Notes.         Only such Notes as shall bear thereon a certificate of authentication substantially in the  form set forth on the Form of Note attached as Exhibit A hereto, executed manually by an  authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as  provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or                                        15                                                                                 





 






obligatory for any purpose.  Such certificate by the Trustee (or such an authenticating agent)  upon any Note executed by the Company shall be conclusive evidence that the Note so  authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled  to the benefits of this Indenture.         In case any Officer of the Company who shall have signed any of the Notes shall cease to  be such Officer before the Notes so signed shall have been authenticated and delivered by the  Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and  delivered or disposed of as though the Person who signed such Notes had not ceased to be such  Officer of the Company; and any Note may be signed on behalf of the Company by such persons  as, at the actual date of the execution of such Note, shall be the Officers of the Company,  although at the date of the execution of this Indenture any such Person was not such an Officer.         Section 2.05.  Exchange and Registration of Transfer of Notes; Restrictions on Transfer;  Depositary.  (a) The Company shall cause to be kept at the Corporate Trust Office a register (the  register maintained in such office or in any other office or agency of the Company designated  pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations  as it may prescribe, the Company shall provide for the registration of Notes and of transfers of  Notes.  Such register shall be in written form or in any form capable of being converted into  written form within a reasonable period of time.  The Trustee is hereby initially appointed the  “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided.   The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.         Upon surrender for registration of transfer of any Note to the Note Registrar or any co- Note Registrar, and satisfaction of the requirements for such transfer set forth in this Section  2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of  the designated transferee or transferees, one or more new Notes of any authorized denominations  and of a like aggregate principal amount and bearing such restrictive legends as may be required  by this Indenture.         Notes may be exchanged for other Notes of any authorized denominations and of a like  aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or  agency maintained by the Company pursuant to Section 4.02.  Whenever any Notes are so  surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and  deliver, the Notes that the Holder making the exchange is entitled to receive, bearing registration  numbers not contemporaneously outstanding.         All Notes presented or surrendered for registration of transfer or for exchange, repurchase  or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co- Note Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of  transfer in form satisfactory to the Company and duly executed, by the Holder thereof or its  attorney-in-fact duly authorized in writing.         No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any  co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but  the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or  similar issue or transfer tax or other similar governmental charge required in connection                                        16                                                                                 





 






therewith as a result of the name of the Holder of new Notes issued upon such exchange or  registration of transfer being different from the name of the Holder of the old Notes surrendered  for exchange or registration of transfer or otherwise required by law.         None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be  required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a  portion of any Note is surrendered for conversion, such portion thereof surrendered for  conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not  withdrawn) in accordance with Article 15 or (iii) any Notes selected for redemption in  accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.           All Notes issued upon any registration of transfer or exchange of Notes in accordance  with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and  entitled to the same benefits under this Indenture as the Notes surrendered upon such registration  of transfer or exchange.        (b)  So long as the Notes are eligible for book-entry settlement with the Depositary,  unless otherwise required by law, subject to the fourth paragraph from the end of Section 2.05(c)  all Notes shall be represented by one or more Notes in global form (each, a “Global Note”)  registered in the name of the Depositary or the nominee of the Depositary.  The transfer and  exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical  Note shall be effected through the Depositary (but not the Trustee or the Custodian) in  accordance with this Indenture (including the restrictions on transfer set forth herein) and the  procedures of the Depositary therefor.        (c)  Every Note that bears or is required under this Section 2.05(c) to bear the legend  set forth in this Section 2.05(c) (together with any Common Stock issued upon conversion of the  Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the “Restricted  Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c)  (including those contained in the legend set forth below), unless such restrictions on transfer  shall be eliminated or otherwise waived by written consent of the Company, and the Holder of  each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all  such restrictions on transfer.  As used in this Section 2.05(c) and Section 2.05(d), the term  “transfer” encompasses any sale, pledge, transfer or other disposition whatsoever of any  Restricted Security.         Until the date (the “Resale Restriction Termination Date”) that is the later of (1) the  date that is one year after the last date of original issuance of the Notes, or such other period of  time as permitted by Rule 144 or any successor provision thereto, and (2) such later date, if any,  as may be required by applicable law, any certificate evidencing such Note (and all securities  issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued  upon conversion thereof, which shall bear the legend set forth in Section 2.05(d), if applicable)  shall bear a legend in substantially the following form (unless such Notes have been transferred  pursuant to a registration statement that has become or been declared effective under the  Securities Act and that continues to be effective at the time of such transfer, or sold pursuant to  the exemption from registration provided by Rule 144 or any similar provision then in force                                         17                                                                                 





 






under the Securities Act, or unless otherwise agreed by the Company in writing, with notice  thereof to the Trustee):         THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON  CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE  SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT  BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN  ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF  OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:               (1)   REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS        ACTING IS A “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 FIVE9, INC. (THE “COMPANY”)        THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS        SECURITY OR ANY BENEFICIAL INTEREST HEREIN OR ANY COMMON        STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OR ANY        BENEFICIAL INTEREST THEREIN PRIOR TO THE DATE THAT IS THE LATER        OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR        SUCH OTHER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE        SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH        LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,        EXCEPT:                     (A)   TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR                     (B)   PURSUANT TO A REGISTRATION STATEMENT THAT HAS              BEEN DECLARED (OR 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  CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT  TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR  OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO  DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE  WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO                                         18                                                                                 





 






REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM  THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.         No transfer of any Note prior to the Resale Restriction Termination Date will be  registered by the Note Registrar unless the applicable box on the Form of Assignment and  Transfer has been checked.         Any Note (or security issued in exchange or substitution therefor) (i) as to which such  restrictions on transfer shall have expired in accordance with their terms, (ii) that has been  transferred pursuant to a registration statement that has become effective or been declared  effective under the Securities Act and that continues to be effective at the time of such transfer or  (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any  similar provision then in force under the Securities Act, may, upon surrender of such Note for  exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be  exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall  not bear the restrictive legend required by this Section 2.05(c) and shall not be assigned a  restricted CUSIP number. The Company shall be entitled to instruct the Custodian in writing to  so surrender any Global Note as to which any of the conditions set forth in clause (i) through (iii)  of the immediately preceding sentence have been satisfied, and, upon such instruction, the  Custodian shall so surrender such Global Note for exchange; and any new Global Note so  exchanged therefor shall not bear the restrictive legend specified in this Section 2.05(c) and shall  not be assigned a restricted CUSIP number.  The Company shall promptly notify the Trustee  upon the occurrence of the Resale Restriction Termination Date and promptly after a registration  statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the  Notes has been declared effective under the Securities Act. Any exchange pursuant to the  foregoing paragraph shall be in accordance with the applicable procedures of the Depositary.         Notwithstanding any other provisions of this Indenture (other than the provisions set forth  in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by  the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the  Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a  successor Depositary or a nominee of such successor Depositary and (ii) for exchange of a  Global Note or a portion thereof for one or more Physical Notes in accordance with the second  immediately succeeding paragraph.         The Depositary shall be a clearing agency registered under the Exchange Act.  The  Company initially appoints The Depository Trust Company to act as Depositary with respect to  each Global Note.  Initially, each Global Note shall be issued to the Depositary, registered in the  name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as  custodian for Cede & Co.         If (i) the Depositary notifies the Company at any time that the Depositary is unwilling or  unable to continue as depositary for the Global Notes and a successor depositary is not appointed  within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the  Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of  Default with respect to the Notes has occurred and is continuing and a beneficial owner of any  Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall                                        19                                                                                 





 






execute, and the Trustee, upon receipt of an Officer’s Certificate and a Company Order for the  authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (iii),  a Physical Note to such beneficial owner in a principal amount equal to the principal amount of  such Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of  clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a  portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such  Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the  Trustee such Global Notes shall be canceled.         Physical Notes issued in exchange for all or a part of the Global Note pursuant to this  Section 2.05(c) shall be registered in such names and in such authorized denominations as the  Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the  case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall  instruct the Trustee.  Upon execution and authentication, the Trustee shall deliver such Physical  Notes to the Persons in whose names such Physical Notes are so registered.         At such time as all interests in a Global Note have been converted, canceled, redeemed,  repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the  Trustee in accordance with standing procedures and existing instructions between the Depositary  and the Custodian.  At any time prior to such cancellation, if any interest in a Global Note is  exchanged for Physical Notes, converted, canceled, redeemed, repurchased or transferred to a  transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred  for part of such Global Note, the principal amount of such Global Note shall, in accordance with  the standing procedures and instructions existing between the Depositary and the Custodian, be  appropriately reduced or increased, as the case may be, and an endorsement shall be made on  such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such  reduction or increase.         None of the Company, the Trustee or any agent of the Company or the Trustee shall have  any responsibility or liability for any aspect of the records relating to or payments made on  account of beneficial ownership interests of a Global Note or maintaining, supervising or  reviewing any records relating to such beneficial ownership interests.        (d)  Until the Resale Restriction Termination Date, any stock certificate representing  Common Stock issued upon conversion of such Note shall bear a legend in substantially the  following form (unless the Note or such Common Stock has been transferred pursuant to a  registration statement that has become or been declared effective under the Securities Act and  that continues to be effective at the time of such transfer, or pursuant to the exemption from  registration provided by Rule 144 or any similar provision then in force under the Securities Act,  or such Common Stock has been issued upon conversion of Notes that have been transferred  pursuant to a registration statement that has become or been declared effective under the  Securities Act and that continues to be effective at the time of such transfer, or pursuant to the  exemption from registration provided by Rule 144 or any similar provision then in force under  the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the  Trustee and any transfer agent for the Common Stock):                                         20                                                                                 





 






      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 FIVE9, INC. (THE “COMPANY”)        THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS        SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE        THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE        DATE OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS        SECURITY WAS ISSUED OR SUCH OTHER PERIOD OF TIME AS PERMITTED        BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION        THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY        APPLICABLE LAW, EXCEPT:                     (A)   TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR                     (B)   PURSUANT TO A REGISTRATION STATEMENT THAT HAS              BEEN DECLARED (OR 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  CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE  COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY  OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY  REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED  TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND  APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE  AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS  OF THE SECURITIES ACT.         Any such Common Stock (i) as to which such restrictions on transfer shall have expired  in accordance with their terms, (ii) that has been transferred pursuant to a registration statement                                        21                                                                                 





 






that has become or been declared effective under the Securities Act and that continues to be  effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from  registration provided by Rule 144 or any similar provision then in force under the Securities Act,  may, upon surrender of the certificates representing such shares of Common Stock for exchange  in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for  a new certificate or certificates for a like aggregate number of shares of Common Stock, which  shall not bear the restrictive legend required by this Section 2.05(d).        (e)  Any Note or Common Stock issued upon the conversion or exchange of a Note that  is repurchased or owned by any Affiliate of the Company (or any Person who was an Affiliate of  the Company at any time during the three months immediately preceding) may not be resold by  such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or  resold pursuant to an exemption from the registration requirements of the Securities Act in a  transaction that results in such Note or Common Stock, as the case may be, no longer being a  “restricted security” (as defined under Rule 144).  The Company shall cause any Note that is  repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with  Section 2.08.          (f)  The Trustee shall have no obligation or duty to monitor, determine or inquire as to  compliance with any restrictions on transfer imposed under this Indenture or under applicable  law with respect to any transfer of any interest in any Note (including any transfers between or  among Depositary participants or beneficial owners of interests in any Global Note) other than to  require delivery of such certificates and other documentation or evidence 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)  Neither the Trustee nor any agent shall have any responsibility or liability for any  actions taken or not taken by the Depositary.         Section 2.06.  Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall become  mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its  written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate  and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in  exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so  destroyed, lost or stolen.  In every case the applicant for a substituted Note shall furnish to the  Company, to the Trustee and, if applicable, to such authenticating agent such security or  indemnity as may be required by them to save each of them harmless from any loss, liability,  cost or expense caused by or connected with such substitution, and, in every case of destruction,  loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to  such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such  Note and of the ownership thereof.         The Trustee or such authenticating agent may authenticate any such substituted Note and  deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and,  if applicable, such authenticating agent may require.  No service charge shall be imposed by the  Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the                                        22                                                                                 





 






issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to  cover any documentary, stamp or similar issue or transfer tax or other similar governmental  charge required in connection therewith as a result of the name of the Holder of the new  substitute Note being different from the name of the Holder of the old Note that became  mutilated or was destroyed, lost or stolen.  In case any Note that has matured or is about to  mature or has been surrendered for required repurchase or is about to be converted in accordance  with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its  sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or  authorize the conversion of the same (without surrender thereof except in the case of a mutilated  Note), as the case may be, if the applicant for such payment or conversion shall furnish to the  Company, to the Trustee and, if applicable, to such authenticating agent such security or  indemnity as may be required by them to save each of them harmless for any loss, liability, cost  or expense caused by or connected with such substitution, and, in every case of destruction, loss  or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent  or Conversion Agent of the destruction, loss or theft of such Note and of the ownership thereof.         Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of  the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual  obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at  any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set  forth in) this Indenture equally and proportionately with any and all other Notes duly issued  hereunder.  To the extent permitted by law, all Notes shall be held and owned upon the express  condition that the foregoing provisions are exclusive with respect to the replacement, payment,  conversion, redemption or repurchase of mutilated, destroyed, lost or stolen Notes and shall  preclude any and all other rights or remedies notwithstanding any law or statute existing or  hereafter enacted to the contrary with respect to the replacement, payment, conversion,  redemption or repurchase of negotiable instruments or other securities without their surrender.         Section 2.07.  Temporary Notes.  Pending the preparation of Physical Notes, the  Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall,  upon written request of the Company, authenticate and deliver temporary Notes (printed or  lithographed).  Temporary Notes shall be issuable in any authorized denomination, and  substantially in the form of the Physical Notes but with such omissions, insertions and variations  as may be appropriate for temporary Notes, all as may be determined by the Company.  Every  such temporary Note shall be executed by the Company and authenticated by the Trustee or such  authenticating agent upon the same conditions and in substantially the same manner, and with  the same effect, as the Physical Notes.  Without unreasonable delay, the Company shall execute  and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global  Note) and thereupon any or all temporary Notes (other than any Global Note) may be  surrendered in exchange therefor, at each office or agency maintained by the Company pursuant  to Section 4.02 and the Trustee or such authenticating agent shall authenticate and deliver in  exchange for such temporary Notes an equal aggregate principal amount of Physical Notes.   Such exchange shall be made by the Company at its own expense and without any charge  therefor.  Until so exchanged, the temporary Notes shall in all respects be entitled to the same  benefits and subject to the same limitations under this Indenture as Physical Notes authenticated  and delivered hereunder.                                         23                                                                                 





 






      Section 2.08.  Cancellation of Notes Paid, Converted, Etc.  The Company shall cause all  Notes surrendered for the purpose of payment, repurchase, redemption, registration of transfer or  exchange or conversion, if surrendered to any Person that the Company controls (including any  of the Company’s agents or Subsidiaries and affiliates) other than the Trustee, to be delivered to  the Trustee for cancellation.  All Notes delivered to the Trustee shall be cancelled promptly by it.   Except for any Notes surrendered for registration of transfer or exchange, or as otherwise  expressly permitted by any of the provisions of this Indenture, no Notes shall be authenticated in  exchange for any Notes surrendered to the Trustee for cancellation. The Trustee shall dispose of  canceled Notes in accordance with its customary procedures and, after such disposition, shall  deliver a certificate of such disposition to the Company upon the Company’s written request.         Section 2.09.  CUSIP Numbers.  The Company in issuing the Notes may use “CUSIP”  numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all  notices issued to Holders as a convenience to such Holders; provided that any such notice may  state that no representation is made as to the correctness of such numbers either as printed on the  Notes or on such notice and that reliance may be placed only on the other identification numbers  printed on the Notes.  The Company shall promptly notify the Trustee in writing of any change  in the “CUSIP” numbers.           Section 2.10.  Additional Notes; Repurchases.  The Company may, without the consent  of, or notice to, the Holders and notwithstanding Section 2.01, reopen this Indenture and issue  additional Notes hereunder with the same terms as the Notes initially issued hereunder (other  than differences in the issue date, the issue price, interest accrued prior to the issue date of such  additional Notes and, if applicable, restrictions on transfer in respect of such additional Notes  (including pursuant to Section 2.05 hereunder)) in an unlimited aggregate principal amount;  provided that if any such additional Notes are not fungible with the Notes initially issued  hereunder for U.S. federal income tax purposes, such additional Notes shall have one or more  separate CUSIP numbers.  Any additional Notes will be treated as a single series for all purposes  under this Indenture except as set forth in the first sentence of this Section 2.10.  Prior to the  issuance of any such additional Notes, the Company shall deliver to the Trustee a Company  Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate and  Opinion of Counsel to cover such matters required by Section 17.05.  In addition, the Company  may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes  are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by  the Company or its Subsidiaries or through a private or public tender or exchange offer or  through counterparties pursuant to private agreements, including by cash-settled swaps or other  derivatives, in each case without prior notice to, or consent of, Holders.  The Company shall  cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or  other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section  2.08 and such Notes shall no longer be considered outstanding under this Indenture upon their  repurchase, and the Trustee shall cancel all Notes so surrendered.                                          24                                                                                 





 






                                  ARTICLE 3                            SATISFACTION AND DISCHARGE         Section 3.01.  Satisfaction and Discharge.  This Indenture shall upon request of the  Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee, at  the expense of the Company, shall execute such instruments reasonably requested by the  Company acknowledging satisfaction and discharge of this Indenture, when (a) (i) all Notes  theretofore authenticated and delivered (other than (x) Notes which have been destroyed, lost or  stolen and which have been replaced, paid or converted as provided in Section 2.06 and (y)  Notes for whose payment money has theretofore been deposited in trust or segregated and held  in trust by the Company and thereafter repaid to the Company or discharged from such trust, as  provided in Section 4.04(d)) have been delivered to the Trustee for cancellation; or (ii) the  Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes  have become due and payable, whether on the Maturity Date, any Redemption Date, any  Fundamental Change Repurchase Date, upon conversion or otherwise, cash or cash, shares of  Common Stock or a combination thereof, as applicable, solely to satisfy the Company’s  Conversion Obligation, sufficient to pay all of the outstanding Notes and all other sums due and  payable under this Indenture by the Company; and (b) the Company has delivered to the Trustee  an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent  herein provided for relating to the satisfaction and discharge of this Indenture have been  complied with.  Notwithstanding the satisfaction and discharge of this Indenture, the obligations  of the Company to the Trustee under Section 7.06 shall survive.                                     ARTICLE 4                       PARTICULAR COVENANTS OF THE COMPANY         Section 4.01.  Payment of Principal and Interest.  The Company covenants and agrees  that it will cause to be paid the principal (including the Redemption Price and the Fundamental  Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the  Notes at the places, at the respective times and in the manner provided herein and in the Notes.           Notwithstanding anything to the contrary contained in this Indenture, the Company may,  to the extent it is required to do so by law, deduct or withhold income or other similar taxes  imposed by the United States of America from principal, premium or interest (including any  Additional Interest) payments hereunder         Section 4.02.  Maintenance of Office or Agency.  The Company will maintain in the  United States of America an office or agency where the Notes may be surrendered for  registration of transfer or exchange or for presentation for payment or repurchase (“Paying  Agent”) or for conversion (“Conversion Agent”) and where notices and demands to or upon the  Company in respect of the Notes and this Indenture may be served.  The Company will give  prompt written notice to the Trustee of the location, and any change in the location, of such  office or agency.  If at any time the Company shall fail to maintain any such required office or  agency or shall fail to furnish the Trustee with the address thereof, such presentations,  surrenders, notices and demands may be made or served at the Corporate Trust Office in the                                         25                                                                                 





 






United States of America as a place where Notes may be presented for payment or for  registration of transfer.         The Company may also from time to time designate as co-Note Registrars one or more  other offices or agencies where the Notes may be presented or surrendered for any or all such  purposes and may from time to time rescind such designations; provided that no such designation  or rescission shall in any manner relieve the Company of its obligation to maintain an office or  agency in the United States of America so designated by the Trustee as a place for such  purposes.  The Company will give prompt written notice to the Trustee of any such designation  or rescission and of any change in the location of any such other office or agency.  The terms  “Paying Agent” and “Conversion Agent” include any such additional or other offices or  agencies, as applicable.         The Company hereby initially designates the Trustee as the Paying Agent, Note  Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or  agency in the United States of America where Notes may be surrendered for registration of  transfer or exchange or for presentation for payment or repurchase or for conversion and where  notices and demands to or upon the Company in respect of the Notes and this Indenture may be  served; provided that the Corporate Trust Office shall not be a place for service of legal process  on the Company.         Section 4.03.  Appointments to Fill Vacancies in Trustee’s Office.  The Company,  whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner  provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.         Section 4.04.  Provisions as to Paying Agent.  (a) If the Company shall appoint a Paying  Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver  to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the  provisions of this Section 4.04:                (i)  that it will hold all sums held by it as such agent for the payment of the        principal (including the Redemption Price and the Fundamental Change Repurchase        Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the        benefit of the Holders of the Notes;               (ii)  that it will give the Trustee prompt written notice of any failure by the        Company to make any payment of the principal (including the Redemption Price and the        Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest        on, the Notes when the same shall be due and payable; and               (iii) that at any time during the continuance of an Event of Default, upon        request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.         The Company shall, on or before each due date of the principal (including the  Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued  and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such  principal (including the Redemption Price and the Fundamental Change Repurchase Price, if                                        26                                                                                 





 






applicable) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the  Company will promptly notify the Trustee in writing of any failure to take such action; provided  that if such deposit is made on the due date, such deposit must be received by the Paying Agent  by 11:00 a.m., New York City time, on such date.        (b)  If the Company (or any of its Subsidiaries) shall act as Paying Agent, it will, on or  before each due date of the principal (including the Redemption Price and the Fundamental  Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set  aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to  pay such principal (including the Redemption Price and the Fundamental Change Repurchase  Price, if applicable) and accrued and unpaid interest so becoming due and will promptly notify  the Trustee in writing of any failure to take such action and of any failure by the Company to  make any payment of the principal (including the Redemption Price and the Fundamental  Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes when  the same shall become due and payable.        (c)  Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at  any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any  other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in trust by  the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or  amounts to be held by the Trustee upon the trusts herein contained and upon such payment or  delivery by the Company or any Paying Agent to the Trustee, the Company or such Paying  Agent shall be released from all further liability but only with respect to such sums or amounts.  Upon the occurrence of any event specified in Section 6.01(h) or Section 6.01(i), the Trustee  shall automatically become the Paying Agent.         (d)  Subject to applicable escheatment laws, any money or property deposited with the  Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the  principal (including the Redemption Price and the Fundamental Change Repurchase Price, if  applicable) of, accrued and unpaid interest on and the consideration due upon conversion of any  Note and remaining unclaimed for two years after such principal (including the Redemption  Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration due  upon conversion has become due and payable shall be paid to the Company on request of the  Company contained in an Officer’s Certificate, or (if then held by the Company) shall be  discharged from such trust and the Trustee shall have no further liability with respect to such  funds; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to  the Company for payment thereof, and all liability of the Trustee or such Paying Agent with  respect to such trust money and shares of Common Stock, and all liability of the Company as  trustee thereof, shall thereupon cease.         Section 4.05.  Existence.  Subject to Article 11, the Company shall do or cause to be done  all things necessary to preserve and keep in full force and effect its corporate existence.         Section 4.06.  Rule 144A Information Requirement and Annual Reports.  (a)  At any time  the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so  long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall,  at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the                                        27                                                                                 





 






Securities Act, promptly provide to the Trustee and will, upon written request, provide to any  Holder, beneficial owner or prospective purchaser of such Notes or any shares of Common Stock  issuable upon conversion of such Notes, the information required to be delivered pursuant to  Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of  Common Stock pursuant to Rule 144A.  The Company shall take such further action as any  Holder or beneficial owner of such Notes or such Common Stock may reasonably request to the  extent from time to time required to enable such Holder or beneficial owner to sell such Notes or  shares of Common Stock in accordance with Rule 144A, as such rule may be amended from time  to time.        (b)  The Company shall file with the Trustee, within 15 days after the same are required  to be filed with the Commission (giving effect to any grace period provided by Rule 12b-25 (or  any successor rule) under the Exchange Act), copies of any documents or reports that the  Company is required to file with the Commission pursuant to Section 13 or 15(d) of the  Exchange Act (excluding any such information, documents or reports, or portions thereof,  subject to confidential treatment and any correspondence with the Commission).  Any such  document or report that the Company files with the Commission via the Commission’s EDGAR  system (or any successor thereto) shall be deemed to be filed with the Trustee for purposes of  this Section 4.06(b) at the time such documents are filed via the EDGAR system (or any  successor thereto), it being understood that the Trustee shall not be responsible for determining  whether such filings have been made.          (c)  Delivery of the reports and documents described in subsection (b) above to the  Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute  constructive notice of any information contained therein or determinable from information  contained therein, including the Company’s compliance with any of its covenants hereunder (as  to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).        (d)  If, at any time during the six-month period beginning on, and including, the date  that is six months after the last date of original issuance of the Notes, the Company fails to  timely file any document or report that it is required to file with the Commission pursuant to  Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace  periods thereunder and other than Current Reports on Form 8-K), or the Notes are not otherwise  freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders  that were the Company’s Affiliates at any time during the three months immediately preceding  (as a result of restrictions pursuant to U.S. securities laws), the Company shall pay Additional  Interest on the Notes.  Such Additional Interest shall accrue on the Notes at the rate of 0.50% per  annum of the principal amount of the Notes outstanding for each day during such period for  which the Company’s failure to file has occurred and is continuing or the Notes are not otherwise  freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates or Holders  that were the Company’s Affiliates at any time during the three months immediately preceding  (as a result of restrictions pursuant to U.S. securities laws).  As used in this Section 4.06(d),  documents or reports that the Company is required to “file” with the Commission pursuant to  Section 13 or 15(d) of the Exchange Act does not include documents or reports, or portions  thereof, that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the  Exchange Act.                                           28                                                                                 





 






     (e)  If, and for so long as, the restrictive legend on the Notes specified in Section  2.05(c) has not been removed (or deemed removed pursuant to this Indenture), the Notes are  assigned a restricted CUSIP number or the Notes are not otherwise freely tradable pursuant to  Rule 144 by Holders other than the Company’s Affiliates or Holders that were the Company’s  Affiliates at any time during the three months immediately preceding (without restrictions  pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the 375th day  after the last date of original issuance of the Notes, the Company shall pay Additional Interest on  the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until  the restrictive legend on the Notes has been removed in accordance with Section 2.05(c), the  Notes are assigned an unrestricted CUSIP number and the Notes are freely tradable pursuant to  Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s  Affiliates at any time during the three months immediately preceding) (without restrictions  pursuant to U.S. securities laws or the terms of this Indenture or the Notes).          (f)  Additional Interest will be payable in arrears on each Interest Payment Date  following accrual in the same manner as regular interest on the Notes.          (g)  The Additional Interest that is payable in accordance with Section 4.06(d) or  Section 4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be  payable as a result of the Company’s election pursuant to Section 6.03. Notwithstanding the  foregoing, in no event shall Additional Interest accrue pursuant to Section 4.06(d) (including any  Additional Interest payable pursuant to Section 6.03) at a rate in excess of 0.50% per annum,  regardless of the number of events or circumstances giving rise to the requirement to pay such  Additional Interest.        (h)  If Additional Interest is payable by the Company pursuant to Section 4.06(d) or  Section 4.06(e), the Company shall deliver to the Trustee an Officer’s Certificate to that effect  stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such  Additional Interest is payable.  Unless and until a Responsible Officer of the Trustee receives at  the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no  such Additional Interest is payable.  If the Company has paid Additional Interest directly to the  Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting  forth the particulars of such payment.         Section 4.07.  Stay, Extension and Usury Laws.  The Company covenants (to the extent  that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner  whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other  law that would prohibit or forgive the Company from paying all or any portion of the principal of  or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter  in force, or that may affect the covenants or the performance of this Indenture; and the Company  (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such  law, and covenants that it will not, by resort to any such law, hinder, delay or impede the  execution of any power herein granted to the Trustee, but will suffer and permit the execution of  every such power as though no such law had been enacted.         Section 4.08.  Compliance Certificate; Statements as to Defaults.  The Company shall  deliver to the Trustee within 120 days after the end of each fiscal year of the Company                                        29                                                                                 





 






(beginning with the fiscal year ending on December 31, 2020) an Officer’s Certificate stating  whether the signers thereof have knowledge of any failure by the Company to comply with all  conditions and covenants then required to be performed under this Indenture and, if so,  specifying each such failure and the nature thereof.         In addition, the Company shall deliver to the Trustee, as soon as possible, and in any  event within 30 days after the occurrence of any Event of Default or Default, an Officer’s  Certificate setting forth the details of such Event of Default or Default, its status and the action  that the Company is taking or proposing to take in respect thereof; provided  that the Company  shall not be required to deliver any such notice if the relevant Default or Event of Default has  been cured within the applicable grace period (if any) or is no longer continuing.         Section 4.09.  Further Instruments and Acts.  Upon request of the Trustee, the Company  will execute and deliver such further instruments and do such further acts as may be reasonably  necessary or proper to carry out more effectively the purposes of this Indenture.                                     ARTICLE 5             LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE         Section 5.01.  Lists of Holders.  The Company covenants and agrees that it will furnish or  cause to be furnished to the Trustee, semi-annually, not more than 15 days after each May 15 and  November 15 in each year beginning with November 15, 2020, and at such other times as the  Trustee may request in writing, within 30 days after receipt by the Company of any such request  (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide  any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably  require of the names and addresses of the Holders as of a date not more than 15 days (or such  other date as the Trustee may reasonably request in order to so provide any such notices) prior to  the time such information is furnished, except that no such list need be furnished so long as the  Trustee is acting as Note Registrar.         Section 5.02.  Preservation and Disclosure of Lists.  The Trustee shall preserve, in as  current a form as is reasonably practicable, all information as to the names and addresses of the  Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained  by the Trustee in its capacity as Note Registrar, if so acting.  The Trustee may destroy any list  furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.                                     ARTICLE 6                              DEFAULTS AND REMEDIES         Section 6.01.  Events of Default.  Each of the following events shall be an “Event of  Default” with respect to the Notes:        (a)  default in any payment of interest on any Note when due and payable, and the  default continues for a period of 30 days;                                          30                                                                                 





 






     (b)  default in the payment of principal of any Note when due and payable on the  Maturity Date, upon Optional Redemption, upon any required repurchase, upon declaration of  acceleration or otherwise;        (c)  failure by the Company to comply with its obligation to convert the Notes in  accordance with this Indenture upon exercise of a Holder’s conversion right, and such failure  continues for three (3) Business Days;        (d)  failure by the Company to issue a Fundamental Change Company Notice in  accordance with Section 15.02(c), notice of a Make-Whole Fundamental Change in accordance  with Section 14.03(b) or notice of a specified corporate event in accordance with Section  14.01(b)(ii) or (iii), in each case when due;        (e)  failure by the Company to comply with its obligations under Article 11;        (f)  failure by the Company for 60 days after written notice to the Company from the  Trustee or to the Company and the Trustee from the Holders of at least 25% in aggregate  principal amount of the Notes then outstanding has been received by the Company to comply  with any of its other agreements contained in the Notes or this Indenture;        (g)  default by the Company or any Subsidiary of the Company with respect to any  mortgage, agreement or other instrument under which there may be outstanding, or by which  there may be secured or evidenced, any indebtedness for money borrowed in excess of  $50,000,000 (or its foreign currency equivalent) in the aggregate of the Company and/or any  such Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting  in such indebtedness becoming or being declared due and payable prior to its stated maturity or  (ii) constituting a failure to pay the principal of any such indebtedness when due and payable at  its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, in  each case, after the expiration of all applicable grace periods and, in the case of clauses (i) and  (ii), such acceleration shall not have been rescinded or annulled or such failure to pay or default  shall not have been cured or waived, or such indebtedness shall not have been paid or  discharged, as the case may be, within 30 days after written notice to the Company from the  Trustee or the Holders of at least 25% in principal amount of Notes then outstanding in  accordance with this Indenture;        (h)  the Company or any Significant Subsidiary shall commence a voluntary case or  other proceeding seeking liquidation, reorganization or other relief with respect to the Company  or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar  law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,  custodian or other similar official of the Company or any such Significant Subsidiary or any  substantial part of its property, or shall consent to any such relief or to the appointment of or  taking possession by any such official in an involuntary case or other proceeding commenced  against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to  pay its debts as they become due; or        (i)  an involuntary case or other proceeding shall be commenced against the Company  or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to                                        31                                                                                 





 






the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or  other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,  liquidator, custodian or other similar official of the Company or such Significant Subsidiary or  any substantial part of its property, and such involuntary case or other proceeding shall remain  undismissed and unstayed for a period of 30 consecutive days; or        (j)  a final judgment or judgments for the payment of $50,000,000 (or its foreign  currency equivalent) or more (excluding any amounts covered by insurance) in the aggregate  rendered against the Company or any Subsidiary of the Company, which judgment is not  discharged, bonded, paid, waived or stayed within 60 days after (i) the date on which the right to  appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights  to appeal have been extinguished.         Section 6.02.  Acceleration; Rescission and Annulment.  If one or more Events of Default  shall have occurred and be continuing (whatever the reason for such Event of Default and  whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any  judgment, decree or order of any court or any order, rule or regulation of any administrative or  governmental body), then, and in each and every such case (other than an Event of Default  specified in Section 6.01(h) or Section 6.01(i) with respect to the Company), unless the principal  of all of the Notes shall have already become due and payable, either the Trustee or the Holders  of at least 25% in aggregate principal amount of the Notes then outstanding determined in  accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given  by Holders), may declare 100% of the principal of, and accrued and unpaid interest, if any, on,  all the Notes to be due and payable immediately, and upon any such declaration the same shall  become and shall automatically be immediately due and payable, anything in this Indenture or in  the Notes contained to the contrary notwithstanding.  If an Event of Default specified in Section  6.01(h) or Section 6.01(i) with respect to the Company occurs and is continuing, 100% of the  principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall  automatically be immediately due and payable without any declaration or other act on the part of  the Trustee or any Holder.           The immediately preceding paragraph, however, is subject to the conditions that if, at any  time after the principal of the Notes shall have been so declared due and payable, and before any  judgment or decree for the payment of the monies due shall have been obtained or entered as  hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to  pay installments of accrued and unpaid interest upon all Notes and the principal of any and all  Notes that shall have become due otherwise than by acceleration (with interest on overdue  installments of accrued and unpaid interest, and on such principal at the rate borne by the Notes  at such time) and amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission  would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any  and all existing Events of Default under this Indenture, other than the nonpayment of the  principal of and accrued and unpaid interest, if any, on Notes that shall have become due solely  by such acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every  such case (except as provided in the immediately succeeding sentence) the Holders of a majority  in aggregate principal amount of the Notes then outstanding, by written notice to the Company  and to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and  rescind and annul such declaration and its consequences and such Default shall cease to exist,                                        32                                                                                 





 






and any Event of Default arising therefrom shall be deemed to have been cured for every purpose  of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect  any subsequent Default or Event of Default, or shall impair any right consequent thereon.   Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment  shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment  of the principal (including the Redemption Price and the Fundamental Change Repurchase Price,  if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any  Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due  upon conversion of the Notes.         Section 6.03.  Additional Interest.  Notwithstanding anything in this Indenture or in the  Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default  relating to the Company’s failure to comply with its obligations as set forth in Section 4.06(b)  shall, for the first 180 days after the occurrence of such an Event of Default, consist exclusively  of the right to receive Additional Interest on the Notes at a rate equal to (i) 0.25% per annum of  the principal amount of the Notes outstanding for each day during the first 90 calendar days after  the occurrence of such an Event of Default during which such Event of Default is continuing (or,  if earlier, the date on which such Event of Default is cured or waived as provided for in this  Indenture) and (ii) 0.50% per annum of the principal amount of the Notes outstanding for each  day from, and including, the 91st calendar day to, and including, the 180th calendar day after the  occurrence of such an Event of Default during which such Event of Default is continuing (or, if  earlier, the date on which such Event of Default is cured or waived as provided for in this  Indenture). Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not in  lieu of, any Additional Interest payable pursuant to Section 4.06(d) or Section 4.06(e). If the  Company so elects, such Additional Interest shall be payable in the same manner and on the  same dates as the stated interest payable on the Notes, and shall accrue as described in the second  immediately preceding sentence.  On the 181st day after such Event of Default (if the Event of  Default relating to the Company’s failure to comply with its obligations as set forth in Section  4.06(b) is not cured or waived prior to such 181st day), the Notes shall cease to accrue  Additional Interest pursuant to this Section 6.03 and be immediately subject to acceleration as  provided in Section 6.02.  The provisions of this paragraph will not affect the rights of Holders  of Notes in the event of the occurrence of any Event of Default other than the Company’s failure  to comply with its obligations as set forth in Section 4.06(b). In the event the Company does not  elect to pay Additional Interest following an Event of Default in accordance with this Section  6.03 or the Company elected to make such payment but does not pay the Additional Interest  when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.         In order to elect to pay Additional Interest as the sole remedy during the first 180 days  after the occurrence of any Event of Default described in the immediately preceding paragraph,  the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such  election prior to the beginning of such 180-day period.  Upon the failure to timely give such  notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02.         In no event shall Additional Interest accrue under the terms of this Indenture (aggregating  any Additional Interest payable pursuant to this Section 6.03 with any Additional Interest  payable pursuant to Section 4.06(d) or Section 4.06(e)) at a rate in excess of 0.50% per annum,  regardless of the number of events or circumstances giving rise to the requirement to pay such                                        33                                                                                 





 






Additional Interest. For the avoidance of doubt, if the Company elects to pay Additional Interest  for failure to comply with its reporting obligations pursuant to this Section 6.03, such Additional  Interest will not accrue at a rate in excess of (x) 0.25% per annum of the principal amount of the  Notes outstanding for each day during the first 90 days after the occurrence of such an Event of  Default during which such Event of Default is continuing and (y) 0.50% per annum of the  principal amount of the Notes outstanding for each day from the 91st day until the 180th day  following the occurrence of such an Event of Default during which such Event of Default is  continuing, regardless of the number of events or circumstances giving rise to the requirement to  pay such Additional Interest pursuant to this Section 6.03 unless Additional Interest is also  payable pursuant to Sections 4.06(d) or 4.06(e), in which case all Additional Interest shall be  subject to the 0.50% per annum cap described in the immediately preceding sentence.           Section 6.04.  Payments of Notes on Default; Suit Therefor.  If an Event of Default  described in clause (a) or (b) of Section 6.01 shall have occurred and be continuing, the  Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of  the Notes, the whole amount then due and payable on the Notes for principal and interest, if any,  with interest on any overdue principal and interest, if any, at the rate borne by the Notes at such  time, and, in addition thereto, such further amount as shall be sufficient to cover any amounts  due to the Trustee under Section 7.06.  If the Company shall fail to pay such amounts forthwith  upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a  judicial proceeding for the collection of the sums so due and unpaid, may prosecute such  proceeding to judgment or final decree and may enforce the same against the Company or any  other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the  manner provided by law out of the property of the Company or any other obligor upon the Notes,  wherever situated.         In the event there shall be pending proceedings for the bankruptcy or for the  reorganization of the Company or any other obligor on the Notes under Title 11 of the United  States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy  or reorganization, liquidator, sequestrator or similar official shall have been appointed for or  taken possession of the Company or such other obligor, the property of the Company or such  other obligor, or in the event of any other judicial proceedings relative to the Company or such  other obligor upon the Notes, or to the creditors or property of the Company or such other  obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and  payable as therein expressed or by declaration or otherwise and irrespective of whether the  Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be  entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a  claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in  respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and  other papers or documents and to take such other actions as it may deem necessary or advisable  in order to have the claims of the Trustee (including any claim for the reasonable compensation,  expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders  allowed in such judicial proceedings relative to the Company or any other obligor on the Notes,  its or their creditors, or its or their property, and to collect and receive any monies or other  property payable or deliverable on any such claims, and to distribute the same after the deduction  of any amounts due to the Trustee under Section 7.06; and any receiver, assignee or trustee in                                         34                                                                                 





 






bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by  each of the Holders to make such payments to the Trustee, as administrative expenses, and, in  the event that the Trustee shall consent to the making of such payments directly to the Holders,  to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and  disbursements, including agents and counsel fees, and including any other amounts due to the  Trustee under Section 7.06, incurred by it up to the date of such distribution.  To the extent that  such payment of reasonable compensation, expenses, advances and disbursements out of the  estate in any such proceedings shall be denied for any reason, payment of the same shall be  secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies,  securities and other property that the Holders of the Notes may be entitled to receive in such  proceedings, whether in liquidation or under any plan of reorganization or arrangement or  otherwise.         Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent  to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,  adjustment or composition affecting such Holder or the rights of any Holder thereof, or to  authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.         All rights of action and of asserting claims under this Indenture, or under any of the  Notes, may be enforced by the Trustee without the possession of any of the Notes, or the  production thereof at any trial or other proceeding relative thereto, and any such suit or  proceeding instituted by the Trustee shall be brought in its own name as trustee of an express  trust, and any recovery of judgment shall, after provision for the payment of the reasonable  compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be  for the ratable benefit of the Holders of the Notes.         In any proceedings brought by the Trustee (and in any proceedings involving the  interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee  shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any  Holders of the Notes parties to any such proceedings.         In case the Trustee shall have proceeded to enforce any right under this Indenture and  such proceedings shall have been discontinued or abandoned because of any waiver pursuant to  Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or  shall have been determined adversely to the Trustee, then and in every such case the Company,  the Holders and the Trustee shall, subject to any determination in such proceeding, be restored  respectively to their several positions and rights hereunder, and all rights, remedies and powers  of the Company, the Holders and the Trustee shall continue as though no such proceeding had  been instituted.         Section 6.05.  Application of Monies Collected by Trustee.  Any monies or property  collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the  following order, at the date or dates fixed by the Trustee for the distribution of such monies,  upon presentation of the several Notes, and stamping thereon the payment, if only partially paid,  and upon surrender thereof, if fully paid:         First, to the payment of all amounts due the Trustee under Section 7.06;                                        35                                                                                 





 






      Second, in case the principal of the outstanding Notes shall not have become due and be  unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default  in the order of the date due of the payments of such interest and cash due upon conversion, as the  case may be, with interest (to the extent that such interest has been collected by the Trustee)  upon such overdue payments at the rate borne by the Notes at such time, such payments to be  made ratably to the Persons entitled thereto;         Third, in case the principal of the outstanding Notes shall have become due, by  declaration or otherwise, and be unpaid to the payment of the whole amount (including, if  applicable, the payment of the Redemption Price, the Fundamental Change Repurchase Price and  any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest,  if any, with interest on the overdue principal and, to the extent that such interest has been  collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at  such time, and in case such monies shall be insufficient to pay in full the whole amounts so due  and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the  Redemption Price, the Fundamental Change Repurchase Price and any cash due upon  conversion) and interest without preference or priority of principal over interest, or of interest  over principal or of any installment of interest over any other installment of interest, or of any  Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the  Redemption Price, the Fundamental Change Repurchase Price and any cash due upon  conversion) and accrued and unpaid interest; and         Fourth, to the payment of the remainder, if any, to the Company.         Section 6.06.  Proceedings by Holders.  Except to enforce the right to receive payment of  principal (including, if applicable, the Redemption Price and the Fundamental Change  Repurchase Price) or interest when due, or the right to receive payment or delivery of the  consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by  availing of any provision of this Indenture or the Notes to institute any suit, action or proceeding  in equity or at law upon or under or with respect to this Indenture, or for the appointment of a  receiver, trustee, liquidator, custodian or other similar official, or for any other remedy  hereunder, unless:         (a)  such Holder previously shall have given to the Trustee written notice of an Event of  Default and of the continuance thereof, as herein provided;        (b)  Holders of at least 25% in aggregate principal amount of the Notes then  outstanding shall have made written request upon the Trustee to institute such action, suit or  proceeding in its own name as Trustee hereunder;        (c)  such Holders shall have offered to the Trustee such security or indemnity  reasonably satisfactory to it against any loss, liability or expense to be incurred therein or  thereby;        (d)  the Trustee shall have failed to comply with such request for 60 days after its  receipt of such request and the offer of such security or indemnity; and                                          36                                                                                 





 






     (e)  no direction that, in the opinion of the Trustee, is inconsistent with such written  request shall have been given to the Trustee by the Holders of a majority in aggregate principal  amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,    it being understood and intended, and being expressly covenanted by the taker and Holder of  every Note with every other taker and Holder and the Trustee that no one or more Holders shall  have any right in any manner whatever by virtue of or by availing of any provision of this  Indenture to affect, disturb or prejudice the rights of any other Holder (it being understood that  the Trustee shall not have an affirmative duty to ascertain whether or not any such direction is  unduly prejudicial to any other Holder), or to obtain or seek to obtain priority over or preference  to any other such Holder, or to enforce any right under this Indenture, except in the manner  herein provided and for the equal, ratable and common benefit of all Holders (except as  otherwise provided herein).  For the protection and enforcement of this Section 6.06, each and  every Holder and the Trustee shall be entitled to such relief as can be given either at law or in  equity.         Notwithstanding any other provision of this Indenture and any provision of any Note, the  right of any Holder to receive payment or delivery, as the case may be, of (x) the principal  (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable)  of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of,  such Note, on or after the respective due dates expressed or provided for in such Note or in this  Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case  may be, on or after such respective dates against the Company shall not be impaired or affected  without the consent of such Holder.         Section 6.07.  Proceedings by Trustee.  In case of an Event of Default, the Trustee may in  its discretion proceed to protect and enforce the rights vested in it by this Indenture by such  appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either  by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the  specific enforcement of any covenant or agreement contained in this Indenture or in aid of the  exercise of any power granted in this Indenture, or to enforce any other legal or equitable right  vested in the Trustee by this Indenture or by law.         Section 6.08.  Remedies Cumulative and Continuing.  Except as provided in the last  paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to  the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any  thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes,  by judicial proceedings or otherwise, to enforce the performance or observance of the covenants  and agreements contained in this Indenture, and no delay or omission of the Trustee or of any  Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of  Default shall impair any such right or power, or shall be construed to be a waiver of any such  Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section  6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders  may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or  by the Holders.                                         37                                                                                 





 






      Section 6.09.  Direction of Proceedings and Waiver of Defaults by Majority of Holders.   The Holders of a majority in aggregate principal amount of the Notes at the time outstanding  determined in accordance with Section 8.04 shall have the right to direct the time, method and  place of conducting any proceeding for any remedy available to the Trustee or exercising any  trust or power conferred on the Trustee with respect to the Notes; provided, however, that (a)  such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the  Trustee may take any other action deemed proper by the Trustee that is not inconsistent with  such direction.  The Trustee may refuse to follow any direction that it determines is unduly  prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability  (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or  not any such direction is unduly prejudicial to any other Holder).  The Holders of a majority in  aggregate principal amount of the Notes at the time outstanding determined in accordance with  Section 8.04 may on behalf of the Holders of all of the Notes waive any past Default or Event of  Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid  interest, if any, on, or the principal (including any Redemption Price, any Fundamental Change  Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of  Section 6.01, (ii) a failure by the Company to pay or deliver, as the case may be, the  consideration due upon conversion of the Notes or (iii) a default in respect of a covenant or  provision hereof which under Article 10 cannot be modified or amended without the consent of  each Holder of an outstanding Note affected.  Upon any such waiver the Company, the Trustee  and the Holders of the Notes shall be restored to their former positions and rights hereunder; but  no such waiver shall extend to any subsequent or other Default or Event of Default or impair any  right consequent thereon.  Whenever any Default or Event of Default hereunder shall have been  waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes  of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no  such waiver shall extend to any subsequent or other Default or Event of Default or impair any  right consequent thereon.         Section 6.10.  Notice of Defaults.  The Trustee shall, within 90 days after the occurrence  and continuance of a Default of which the Trustee has actual knowledge, deliver to all Holders  notice of all such Defaults, unless such Defaults shall have been cured or waived before the  giving of such notice; provided that, except in the case of a Default in the payment of the  principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if  applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or  delivery of the consideration due upon conversion, the Trustee shall be protected in withholding  such notice if and so long as it in good faith determines that the withholding of such notice is in  the interests of the Holders.         Section 6.11.  Undertaking to Pay Costs.  All parties to this Indenture agree, and each  Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may,  in its discretion, require, in any suit for the enforcement of any right or remedy under this  Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the  filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that  such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and  expenses, against any party litigant in such suit, having due regard to the merits and good faith of  the claims or defenses made by such party litigant; provided that the provisions of this Section                                         38                                                                                 





 






6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any  suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in  principal amount of the Notes at the time outstanding determined in accordance with Section  8.04, or to any suit instituted by any Holder for the enforcement of the payment of the principal  of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the  Redemption Price and the Fundamental Change Repurchase Price with respect to the Notes  being repurchased as provided in this Indenture) on or after the due date expressed or provided  for in such Note or to any suit for the enforcement of the right to convert any Note in accordance  with the provisions of Article 14.                                     ARTICLE 7                              CONCERNING THE TRUSTEE         Section 7.01.  Duties and Responsibilities of Trustee.  The Trustee, prior to the  occurrence of an Event of Default and after the curing or waiver of all Events of Default that  may have occurred, undertakes to perform such duties and only such duties as are specifically set  forth in this Indenture.  In the event an Event of Default has occurred and is continuing, the  Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the  same degree of care and skill in its exercise, as a prudent person would exercise or use under the  circumstances in the conduct of such person’s own affairs; provided that if an Event of Default  occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or  powers under this Indenture at the request or direction of any of the Holders unless such Holders  have offered (and, if requested, provided) to the Trustee indemnity or security satisfactory to it  against any loss, liability or expense that might be incurred by it in compliance with such request  or direction.         No provision of this Indenture shall be construed to relieve the Trustee from liability for  its own grossly negligent action, its own grossly negligent failure to act or its own willful  misconduct, except that:        (a)  prior to the occurrence of an Event of Default and after the curing or waiving of all  Events of Default that may have occurred:                (i)  the duties and obligations of the Trustee shall be determined solely by the        express provisions of this Indenture, and the Trustee shall not be liable except for the        performance of such duties and obligations as are specifically set forth in this Indenture        and no implied covenants or obligations shall be read into this Indenture against the        Trustee; and               (ii)  in the absence of bad faith or willful misconduct on the part of the Trustee,        the Trustee may conclusively rely, as to the truth of the statements and the correctness of        the opinions expressed therein, upon any certificates or opinions furnished to the Trustee        and conforming to the requirements of this Indenture; but, in the case of any such        certificates or opinions that by any provisions hereof are specifically required to be        furnished to the Trustee, the Trustee shall be under a duty to examine the same to        determine whether or not they conform to the requirements of this Indenture (but need                                         39                                                                                 





 






      not confirm or investigate the accuracy of any mathematical calculations or other facts        stated therein);        (b)  the Trustee shall not be liable for any error of judgment made in good faith by a  Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was  grossly negligent in ascertaining the pertinent facts;        (c)  the Trustee shall not be liable with respect to any action taken or omitted to be  taken by it in good faith in accordance with the direction of the Holders of not less than a  majority of the aggregate principal amount of the Notes at the time outstanding determined as  provided in Section 8.04 relating to the time, method and place of conducting any proceeding for  any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee,  under this Indenture;        (d)  whether or not therein provided, every provision of this Indenture relating to the  conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the  provisions of this Section;        (e)  the Trustee shall not be liable in respect of any payment (as to the correctness of  amount, entitlement to receive or any other matters relating to payment) or notice effected by the  Company or any Paying Agent or any records maintained by any co-Note Registrar with respect  to the Notes;        (f)  if any party fails to deliver a notice relating to an event the fact of which, pursuant  to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on  its failure to receive such notice as reason to act as if no such event occurred, unless a  Responsible Officer of the Trustee had actual knowledge of such event;        (g)  in the absence of written investment direction from the Company, all cash received  by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the  Trustee be liable for the selection of investments or for investment losses incurred thereon or for  losses incurred as a result of the liquidation of any such investment prior to its maturity date or  the failure of the party directing such investments prior to its maturity date or the failure of the  party directing such investment to provide timely written investment direction, and the Trustee  shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such  written investment direction from the Company;         (h)  in the event that the Trustee is also acting as Custodian, Note Registrar, Paying  Agent, Conversion Agent, Bid Solicitation Agent or transfer agent hereunder, the rights and  protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such  Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer  agent; and        (i)  under no circumstances shall the Trustee be liable in its individual capacity for the  obligations evidenced by the Notes.                                          40                                                                                 





 






      None of the provisions contained in this Indenture shall require the Trustee to expend or  risk its own funds or otherwise incur personal financial liability in the performance of any of its  duties or in the exercise of any of its rights or powers.         Section 7.02.  Reliance on Documents, Opinions, Etc.  Except as otherwise provided in  Section 7.01:        (a)  the Trustee may conclusively rely and shall be fully protected in acting upon any  resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,  bond, note, coupon or other paper or document (whether in its original or facsimile form)  believed by it in good faith to be genuine and to have been signed or presented by the proper  party or parties;        (b)  any request, direction, order or demand of the Company mentioned herein shall be  sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be  herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a  copy thereof certified by the Secretary or an Assistant Secretary of the Company;        (c)  the Trustee may consult with counsel of its selection and require an Opinion of  Counsel and any written or verbal advice of such counsel or Opinion of Counsel shall be full and  complete authorization and protection in respect of any action taken or omitted by it hereunder in  good faith and in accordance with such advice or Opinion of Counsel;        (d)  the Trustee shall not be bound to make any investigation into the facts or matters  stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,  direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its  discretion, may make such further inquiry or investigation into such facts or matters as it may see  fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be  entitled to examine the books, records and premises of the Company, personally or by agent or  attorney at the expense of the Company and shall incur no liability of any kind by reason of such  inquiry or investigation;         (e)  the Trustee may execute any of the trusts or powers hereunder or perform any  duties hereunder either directly or by or through agents, custodians, nominees or attorneys and  the Trustee shall not be responsible for any misconduct or negligence on the part of any agent,  custodian, nominee or attorney appointed by it with due care hereunder;         (f)  the permissive rights of the Trustee enumerated herein shall not be construed as  duties;        (g)  the Trustee shall not be required to give any bond or surety in respect of the  performance of its powers and duties hereunder; and        (h)  the Trustee may request that the Company deliver a certificate setting forth the  names of individuals and/or titles of officers authorized at such time to take specified actions  pursuant to this Indenture.                                         41                                                                                 





 






      In no event shall the Trustee be liable for any consequential, punitive, special or indirect  loss or damage of any kind whatsoever (including but not limited to lost profits), even if the  Trustee has been advised of the likelihood of such loss or damage and regardless of the form of  action.  The Trustee shall not be charged with knowledge of any Default or Event of Default with  respect to the Notes, unless either (1) a Responsible Officer shall have actual knowledge of such  Default or Event of Default or (2) written notice of such Default or Event of Default shall have  been given to the Trustee by the Company or by any Holder of the Notes at the Corporate Trust  Office and such notice references the Notes and/or this Indenture.         Section 7.03.  No Responsibility for Recitals, Etc.  The recitals contained herein and in  the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of  the Company, and the Trustee assumes no responsibility for the correctness of the same.  The  Trustee makes no representations as to the validity or sufficiency of this Indenture or of the  Notes.  The Trustee shall not be accountable for the use or application by the Company of any  Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity  with the provisions of this Indenture or any money paid to the Company or upon the Company’s  direction under any provision of the Indenture.         Section 7.04.  Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note  Registrar May Own Notes.  The Trustee, any Paying Agent, any Conversion Agent, Bid  Solicitation Agent (if other than the Company or any Affiliate thereof) or Note Registrar, in its  individual or any other capacity, may become the owner or pledgee of Notes with the same rights  it would have if it were not the Trustee, Paying Agent, Conversion Agent, Bid Solicitation Agent  or Note Registrar.         Section 7.05.  Monies and Shares of Common Stock to Be Held in Trust.  All monies and  any shares of Common Stock received by the Trustee shall, until used or applied as herein  provided, be held in trust for the purposes for which they were received.  Money and shares of  Common Stock held by the Trustee in trust hereunder need not be segregated from other funds or  property except to the extent required by law.  The Trustee shall be under no liability for interest  on any money or shares of Common Stock received by it hereunder except as may be agreed  from time to time by the Company and the Trustee.         Section 7.06.  Compensation and Expenses of Trustee.  The Company covenants and  agrees to pay to the Trustee, in any capacity under this Indenture, from time to time, and the  Trustee shall be entitled to, compensation for all services rendered by it hereunder in any  capacity (which shall not be limited by any provision of law in regard to the compensation of a  trustee of an express trust) as mutually agreed to in writing between the Trustee and the  Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable  and documented expenses, disbursements and advances reasonably incurred or made by the  Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder  (including the reasonable compensation and the reasonable and documented expenses and  disbursements of its agents and counsel and of all Persons not regularly in its employ) except any  such expense, disbursement or advance as shall have been caused by its gross negligence or  willful misconduct as determined by a final, non-appealable decision of a court of competent  jurisdiction. The Company also covenants to indemnify the Trustee in any capacity under this  Indenture and any other document or transaction entered into in connection herewith and its                                        42                                                                                 





 






officers, directors, employees and agents and any authenticating agent for, and to hold them  harmless against, any loss, claim (whether asserted by the Company, a Holder or any Person),  damage, liability or expense incurred without gross negligence or willful misconduct on the part  of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent,  as the case may be, as determined by a final, non-appealable decision of a court of competent  jurisdiction, and arising out of or in connection with the acceptance or administration of this  Indenture or in any other capacity hereunder, including the costs and expenses of defending  themselves against any claim of liability in the premises.  The obligations of the Company under  this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for  expenses, disbursements and advances shall be secured by a senior lien to which the Notes are  hereby made subordinate on all money or property held or collected by the Trustee, except,  subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of  particular Notes.  The Trustee’s right to receive payment of any amounts due under this Section  7.06 shall not be subordinate to any other liability or indebtedness of the Company.  The  obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of  this Indenture and the earlier resignation or removal of the Trustee.  The Company need not pay  for any settlement made without its consent, which consent shall not be unreasonably withheld.   The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents  and employees of the Trustee.         Without prejudice to any other rights available to the Trustee under applicable law, when  the Trustee and its agents and any authenticating agent incur expenses or render services after an  Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and the  compensation for the services are intended to constitute expenses of administration under any  bankruptcy, insolvency or similar laws.         Section 7.07.  Officer’s Certificate as Evidence.  Except as otherwise provided in Section  7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it  necessary or desirable that a matter be proved or established prior to taking or omitting any  action hereunder, such matter (unless other evidence in respect thereof be herein specifically  prescribed) may, in the absence of gross negligence or willful misconduct on the part of the  Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate  delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence or  willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action  taken or omitted by it under the provisions of this Indenture upon the faith thereof.         Section 7.08.  Eligibility of Trustee.  There shall at all times be a Trustee hereunder which  shall be a Person that is eligible pursuant to the Trust Indenture Act (as if, for this purpose, the  Trust Indenture Act were applicable hereto) to act as such and has a combined capital and  surplus of at least $50,000,000.  If such Person publishes reports of condition at least annually,  pursuant to law or to the requirements of any supervising or examining authority, then for the  purposes of this Section, the combined capital and surplus of such Person shall be deemed to be  its combined capital and surplus as set forth in its most recent report of condition so published.   If at any time the Trustee shall cease to be eligible in accordance with the provisions of this  Section, it shall resign immediately in the manner and with the effect hereinafter specified in this  Article.                                         43                                                                                 





 






      Section 7.09.  Resignation or Removal of Trustee.  (a) The Trustee may at any time resign  by giving written notice of such resignation to the Company and by delivering notice thereof to  the Holders.  Upon receiving such notice of resignation, the Company shall promptly appoint a  successor trustee by written instrument, in duplicate, executed by order of the Board of  Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy  to the successor trustee.  If no successor trustee shall have been so appointed and have accepted  appointment within 60 days after the giving of such notice of resignation to the Holders, the  resigning Trustee may, upon ten Business Days’ notice to the Company and the Holders and at  the expense of the Company, petition any court of competent jurisdiction for the appointment of  a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least  six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on  behalf of himself or herself and all others similarly situated, petition any such court for the  appointment of a successor trustee.  Such court may thereupon, after such notice, if any, as it  may deem proper and prescribe, appoint a successor trustee.        (b)  In case at any time any of the following shall occur:                (i)  the Trustee shall cease to be eligible in accordance with the provisions of        Section 7.08 and shall fail to resign after written request therefor by the Company or by        any such Holder, or               (ii)  the Trustee shall become incapable of acting, or shall be adjudged a        bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed, or        any public officer shall take charge or control of the Trustee or of its property or affairs        for the purpose of rehabilitation, conservation or liquidation,   then, in either case, the Company may by a Board Resolution remove the Trustee and appoint a  successor trustee by written instrument, in duplicate, executed by order of the Board of  Directors, one copy of which instrument shall be delivered to the Trustee so removed and one  copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has  been a bona fide holder of a Note or Notes for at least six months (or since the date of this  Indenture) may, on behalf of himself or herself and all others similarly situated, petition any  court of competent jurisdiction for the removal of the Trustee and the appointment of a successor  trustee.  Such court may thereupon, after such notice, if any, as it may deem proper and  prescribe, remove the Trustee and appoint a successor trustee.        (c)  The Holders of a majority in aggregate principal amount of the Notes at the time  outstanding, as determined in accordance with Section 8.04, may at any time remove the Trustee  and nominate a successor trustee that shall be deemed appointed as successor trustee unless  within ten days after notice to the Company of such nomination the Company objects thereto, in  which case the Trustee so removed or any Holder, upon the terms and conditions and otherwise  as in Section 7.09(a) provided, may petition any court of competent jurisdiction for an  appointment of a successor trustee.        (d)  Any resignation or removal of the Trustee and appointment of a successor trustee  pursuant to any of the provisions of this Section 7.09 shall become effective upon acceptance of  appointment by the successor trustee as provided in Section 7.10.                                        44                                                                                 





 






      Section 7.10.  Acceptance by Successor Trustee.  Any successor trustee appointed as  provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its  predecessor trustee an instrument accepting such appointment hereunder, and thereupon the  resignation or removal of the predecessor trustee shall become effective and such successor  trustee, without any further act, deed or conveyance, shall become vested with all the rights,  powers, duties and obligations of its predecessor hereunder, with like effect as if originally  named as Trustee herein; but, nevertheless, on the written request of the Company or of the  successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it  pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such  successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any  such successor trustee, the Company shall execute any and all instruments in writing for more  fully and certainly vesting in and confirming to such successor trustee all such rights and powers.   Any trustee ceasing to act shall, nevertheless, retain a senior lien to which the Notes are hereby  made subordinate on all money or property held or collected by such trustee as such, except for  funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due  it pursuant to the provisions of Section 7.06.         No successor trustee shall accept appointment as provided in this Section 7.10 unless at  the time of such acceptance such successor trustee shall be eligible under the provisions of  Section 7.08.         Upon acceptance of appointment by a successor trustee as provided in this Section 7.10,  each of the Company and the successor trustee, at the written direction and at the expense of the  Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder  to the Holders.  If the Company fails to deliver such notice within ten days after acceptance of  appointment by the successor trustee, the successor trustee shall cause such notice to be  delivered at the expense of the Company.         Section 7.11.  Succession by Merger, Etc.  Any corporation or other entity into which the  Trustee may be merged or converted or with which it may be consolidated, or any corporation or  other entity resulting from any merger, conversion or consolidation to which the Trustee shall be  a party, or any corporation or other entity succeeding to all or substantially all of the corporate  trust business of the Trustee (including the administration of this Indenture), shall be the  successor to the Trustee hereunder without the execution or filing of any paper or any further act  on the part of any of the parties hereto; provided that in the case of any corporation or other  entity succeeding to all or substantially all of the corporate trust business of the Trustee such  corporation or other entity shall be eligible under the provisions of Section 7.08.         In case at the time such successor to the Trustee shall succeed to the trusts created by this  Indenture, any of the Notes shall have been authenticated but not delivered, any such successor  to the Trustee may adopt the certificate of authentication of any predecessor trustee or  authenticating agent appointed by such predecessor trustee, and deliver such Notes so  authenticated; and in case at that time any of the Notes shall not have been authenticated, any  successor to the Trustee or an authenticating agent appointed by such successor trustee may  authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of  the successor trustee; and in all such cases such certificates shall have the full force which it is  anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have;                                        45                                                                                 





 






provided, however, that the right to adopt the certificate of authentication of any predecessor  trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its  successor or successors by merger, conversion or consolidation.         Section 7.12.  Trustee’s Application for Instructions from the Company.  Any application  by the Trustee for written instructions from the Company (other than with regard to any action  proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders  of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any  action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or  after which such action shall be taken or such omission shall be effective.  The Trustee shall not  be liable for any action taken by, or omission of, the Trustee in accordance with a proposal  included in such application on or after the date specified in such application (which date shall  not be less than three Business Days after the date notice to the Company is deemed to be  received pursuant to Section 17.03, unless any such officer shall have consented in writing to any  earlier date), unless, prior to taking any such action (or the effective date in the case of any  omission), the Trustee shall have received written instructions in accordance with this Indenture  in response to such application specifying the action to be taken or omitted.                                     ARTICLE 8                             CONCERNING THE HOLDERS         Section 8.01.  Action by Holders.  Whenever in this Indenture it is provided that the  Holders of a specified percentage of the aggregate principal amount of the Notes may take any  action (including the making of any demand or request, the giving of any notice, consent or  waiver or the taking of any other action), the fact that at the time of taking any such action, the  Holders of such specified percentage have joined therein may be evidenced (a) by any instrument  or any number of instruments of similar tenor executed by Holders in person or by agent or  proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any  meeting of Holders duly called and held in accordance with the provisions of Article 9, or (c) by  a combination of such instrument or instruments and any such record of such a meeting of  Holders.  Whenever the Company or the Trustee solicits the taking of any action by the Holders  of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of  such solicitation, a date as the record date for determining Holders entitled to take such action.   The record date if one is selected shall be not more than fifteen days prior to the date of  commencement of solicitation of such action.         Section 8.02.  Proof of Execution by Holders.  Subject to the provisions of Section 7.01,  Section 7.02 and Section 9.05, proof of the execution of any instrument by a Holder or its agent  or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as  may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.  The  holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.   The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.         Section 8.03.  Who Are Deemed Absolute Owners.  The Company, the Trustee, any  authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may  deem the Person in whose name a Note shall be registered upon the Note Register to be, and may                                         46                                                                                 





 






treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and  notwithstanding any notation of ownership or other writing thereon made by any Person other  than the Company or any Note Registrar) for the purpose of receiving payment of or on account  of the principal (including any Redemption Price and any Fundamental Change Repurchase  Price) of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion  of such Note and for all other purposes under this Indenture; and neither the Company nor the  Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be  affected by any notice to the contrary.  The sole registered holder of a Global Note shall be the  Depositary or its nominee.  All such payments or deliveries so made to any Holder for the time  being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock  so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares  deliverable upon any such Note.  Notwithstanding anything to the contrary in this Indenture or  the Notes following an Event of Default, any owner of a beneficial interest in a Global Note may  directly enforce against the Company, without the consent, solicitation, proxy, authorization or  any other action of the Depositary or any other Person, such holder’s right to exchange such  beneficial interest for a Note in certificated form in accordance with the provisions of this  Indenture.         Section 8.04.  Company-Owned Notes Disregarded.  In determining whether the Holders  of the requisite aggregate principal amount of Notes have concurred in any direction, consent,  waiver or other action under this Indenture, Notes that are owned by the Company, by any  Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be  disregarded and deemed not to be outstanding for the purpose of any such determination;  provided that for the purposes of determining whether the Trustee shall be protected in relying  on any such direction, consent, waiver or other action only Notes that a Responsible Officer  actually knows are so owned shall be so disregarded.  Notes so owned that have been pledged in  good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee  shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such  Notes and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the  Company or a Subsidiary thereof.  In the case of a dispute as to such right, any decision or  indecision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.   Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s  Certificate listing and identifying all Notes, if any, known by the Company to be owned or held  by or for the account of any of the above described Persons; and, subject to Section 7.01, the  Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts  therein set forth and of the fact that all Notes not listed therein are outstanding for the purpose of  any such determination.         Section 8.05.  Revocation of Consents; Future Holders Bound.  At any time prior to (but  not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action  by the Holders of the percentage of the aggregate principal amount of the Notes specified in this  Indenture in connection with such action, any Holder of a Note that is shown by the evidence to  be included in the Notes the Holders of which have consented to such action may, by filing  written notice with the Trustee at its Corporate Trust Office and upon proof of holding as  provided in Section 8.02, revoke such action so far as concerns such Note.  Except as aforesaid,  any such action taken by the Holder of any Note shall be conclusive and binding upon such                                         47                                                                                 





 






Holder and upon all future Holders and owners of such Note and of any Notes issued in  exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether  any notation in regard thereto is made upon such Note or any Note issued in exchange or  substitution therefor or upon registration of transfer thereof.                                     ARTICLE 9                                HOLDERS’ MEETINGS         Section 9.01.  Purpose of Meetings.  A meeting of Holders may be called at any time and  from time to time pursuant to the provisions of this Article 9 for any of the following purposes:        (a)  to give any notice to the Company or to the Trustee or to give any directions to the  Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of  Default hereunder (in each case, as permitted under this Indenture) and its consequences, or to  take any other action authorized to be taken by Holders pursuant to any of the provisions of  Article 6;        (b)  to remove the Trustee and nominate a successor trustee pursuant to the provisions  of Article 7;        (c)  to consent to the execution of an indenture or indentures supplemental hereto  pursuant to the provisions of Section 10.02; or        (d)  to take any other action authorized to be taken by or on behalf of the Holders of any  specified aggregate principal amount of the Notes under any other provision of this Indenture or  under applicable law.         Section 9.02.  Call of Meetings by Trustee.  The Trustee may at any time call a meeting  of Holders to take any action specified in Section 9.01, to be held at such time and at such place  as the Trustee shall determine.  Notice of every meeting of the Holders, setting forth the time and  the place of such meeting and in general terms the action proposed to be taken at such meeting  and the establishment of any record date pursuant to Section 8.01, shall be delivered to Holders  of such Notes.  Such notice shall also be delivered to the Company.  Such notices shall be  delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.         Any meeting of Holders shall be valid without notice if the Holders of all Notes then  outstanding are present in person or by proxy or if notice is waived before or after the meeting by  the Holders of all Notes then outstanding, and if the Company and the Trustee are either present  by duly authorized representatives or have, before or after the meeting, waived notice.         Section 9.03.  Call of Meetings by Company or Holders.  In case at any time the  Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate  principal amount of the Notes then outstanding, shall have requested the Trustee to call a  meeting of Holders, by written request setting forth in reasonable detail the action proposed to be  taken at the meeting, and the Trustee shall not have delivered the notice of such meeting within  20 days after receipt of such request, then the Company or such Holders may determine the time                                         48                                                                                 





 






and the place for such meeting and may call such meeting to take any action authorized in  Section 9.01, by delivering notice thereof as provided in Section 9.02.         Section 9.04.  Qualifications for Voting.  To be entitled to vote at any meeting of Holders  a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting  or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more  Notes on the record date pertaining to such meeting.  The only Persons who shall be entitled to  be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such  meeting and their counsel and any representatives of the Trustee and its counsel and any  representatives of the Company and its counsel.         Section 9.05.  Regulations.  Notwithstanding any other provisions of this Indenture, the  Trustee may make such reasonable regulations as it may deem advisable for any meeting of  Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in  regard to the appointment and duties of inspectors of votes, the submission and examination of  proxies, certificates and other evidence of the right to vote, and such other matters concerning  the conduct of the meeting as it shall think fit.         The Trustee shall, by an instrument in writing, appoint a temporary chairman of the  meeting, unless the meeting shall have been called by the Company or by Holders as provided in  Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be,  shall in like manner appoint a temporary chairman.  A permanent chairman and a permanent  secretary of the meeting shall be elected by vote of the Holders of a majority in aggregate  principal amount of the Notes represented at the meeting and entitled to vote at the meeting.         Subject to the provisions of Section 8.04, at any meeting of Holders each Holder or  proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or  represented by him or her; provided, however, that no vote shall be cast or counted at any  meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the  meeting to be not outstanding.  The chairman of the meeting shall have no right to vote other  than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the  proxy to vote on behalf of other Holders.  Any meeting of Holders duly called pursuant to the  provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of  a majority of the aggregate principal amount of Notes represented at the meeting, whether or not  constituting a quorum, and the meeting may be held as so adjourned without further notice.         Section 9.06.  Voting.  The vote upon any resolution submitted to any meeting of Holders  shall be by written ballot on which shall be subscribed the signatures of the Holders or of their  representatives by proxy and the outstanding aggregate principal amount of the Notes held or  represented by them.  The permanent chairman of the meeting shall appoint two inspectors of  votes who shall count all votes cast at the meeting for or against any resolution and who shall  make and file with the secretary of the meeting their verified written reports in duplicate of all  votes cast at the meeting.  A record in duplicate of the proceedings of each meeting of Holders  shall be prepared by the secretary of the meeting and there shall be attached to said record the  original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by  one or more Persons having knowledge of the facts setting forth a copy of the notice of the  meeting and showing that said notice was delivered as provided in Section 9.02.  The record                                        49                                                                                 





 






shall show the aggregate principal amount of the Notes voting in favor of or against any  resolution.  The record shall be signed and verified by the affidavits of the permanent chairman  and secretary of the meeting and one of the duplicates shall be delivered to the Company and the  other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots  voted at the meeting.         Any record so signed and verified shall be conclusive evidence of the matters therein  stated.         Section 9.07.  No Delay of Rights by Meeting.  Nothing contained in this Article 9 shall  be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or  any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay  in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders  under any of the provisions of this Indenture or of the Notes. Nothing contained in this Article 9  shall be deemed or construed to limit any Holder’s actions pursuant to the applicable procedures  of the Depositary so long as the Notes are Global Notes.                                    ARTICLE 10                             SUPPLEMENTAL INDENTURES         Section 10.01.  Supplemental Indentures Without Consent of Holders.  Without the  consent of, or prior notice to, any Holder, the Company, when authorized by the resolutions of  the Board of Directors, and the Trustee, at the Company’s expense, may from time to time and at  any time enter into an indenture or indentures supplemental hereto for one or more of the  following purposes:        (a)  to cure any ambiguity, omission, defect or inconsistency;        (b)  to provide for the assumption by a Successor Company of the obligations of the  Company under this Indenture pursuant to Article 11;        (c)  to add guarantees with respect to the Notes;        (d)  to secure the Notes;        (e)  provide for the issuance of additional Notes as provided for in Section 2.10;        (f)  to add to the covenants or Events of Default of the Company for the benefit of the  Holders or surrender any right or power conferred upon the Company under this Indenture;        (g)  to make any other change that does not adversely affect the rights of any Holder in  any material respect;        (h)  in connection with any Merger Event, to provide that the Notes are convertible into  Reference Property, subject to the provisions of Section 14.02, and make such related changes to  the terms of the Notes to the extent expressly required by Section 14.07                                         50                                                                                 





 






     (i)  to increase the Conversion Rate as provided in this Indenture;        (j)  to provide for the acceptance of appointment by a successor trustee pursuant to  Section 7.09 or to facilitate the administration of the trusts by more than one trustee;        (k)  to irrevocably elect or eliminate a Settlement Method and/or irrevocably elect a  minimum Specified Dollar Amount;         (l)  to conform the provisions of this Indenture or the Notes to the “Description of  Notes” section of the Offering Memorandum; or       (m)   comply with any requirement of the Commission relating to the qualification of this  Indenture under the Trust Indenture Act.         Upon the written request of the Company, the Trustee is hereby authorized to, and shall  join with the Company in the execution of any such supplemental indenture, to make any further  appropriate agreements and stipulations that may be therein contained, except that the Trustee  shall not be obligated to, but may in its discretion, enter into any supplemental indenture that  affects the Trustee’s own rights, duties, liabilities or immunities under this Indenture or  otherwise.         Any supplemental indenture authorized by the provisions of this Section 10.01 may be  executed by the Company and the Trustee without the consent of the Holders of any of the Notes  at the time outstanding, notwithstanding any of the provisions of Section 10.02.         Section 10.02.  Supplemental Indentures with Consent of Holders.  With the consent  (evidenced as provided in Article 8) of the Holders of at least a majority in aggregate principal  amount of the Notes then outstanding (determined in accordance with Article 8 and including,  without limitation, consents obtained in connection with a repurchase of, or tender or exchange  offer for, the Notes), the Company, when authorized by the resolutions of the Board of Directors,  and the Trustee, at the Company’s expense, may from time to time and at any time enter into an  indenture or indentures supplemental hereto for the purpose of adding any provisions to or  changing in any manner or eliminating any of the provisions of this Indenture, the Notes or any  supplemental indenture or of modifying in any manner the rights of the Holders; provided,  however, that, without the consent of each Holder of an outstanding Note affected, no such  supplemental indenture shall:        (a)  reduce the principal amount of Notes whose Holders must consent to an  amendment;        (b)  reduce the rate of or extend the stated time for payment of interest on any Note;        (c)  reduce the principal of or extend the Maturity Date of any Note;        (d)  other than as expressly required or otherwise permitted by this Indenture, make any  change that adversely affects the conversion rights of any Notes;                                         51                                                                                 





 






     (e)  reduce the Redemption Price or the Fundamental Change Repurchase Price of any  Note or amend or modify in any manner adverse to the Holders the Company’s obligation to  make such payments, whether through an amendment or waiver of provisions in the covenants,  definitions or otherwise;        (f)  make any Note payable in a currency, or at a place of payment, other than that  stated in the Note;        (g)  change the ranking of the Notes;         (h)  impair the right of any Holder to receive payment of principal and interest on such  Holder’s Notes on or after the due dates therefor or to institute suit for the enforcement of any  payment on or with respect to such Holder’s Note; or        (i)  make any change in this Article 10 that requires each Holder’s consent or in the  waiver provisions in Section 6.02 or Section 6.09.         Upon the written request of the Company, and upon the filing with the Trustee of  evidence of the consent of the requisite Holders as aforesaid and subject to Section 10.05, the  Trustee shall join with the Company in the execution of such supplemental indenture unless such  supplemental indenture affects the Trustee’s own rights, duties, liabilities or immunities under  this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be  obligated to, enter into such supplemental indenture.         Holders do not need under this Section 10.02 to approve the particular form of any  proposed supplemental indenture.  It shall be sufficient if such Holders approve the substance  thereof.  After any such supplemental indenture becomes effective, the Company shall deliver to  the Holders (with a copy to the Trustee) a notice briefly describing such supplemental indenture.  However, the failure to give such notice to all the Holders (with a copy to the Trustee), or any  defect in the notice, will not impair or affect the validity of the supplemental indenture.         Section 10.03.  Effect of Supplemental Indentures.  Upon the execution of any  supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and  be deemed to be modified and amended in accordance therewith and the respective rights,  limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the  Company and the Holders shall thereafter be determined, exercised and enforced hereunder  subject in all respects to such modifications and amendments and all the terms and conditions of  any such supplemental indenture shall be and be deemed to be part of the terms and conditions of  this Indenture for any and all purposes.         Section 10.04.  Notation on Notes.  Notes authenticated and delivered after the execution  of any supplemental indenture pursuant to the provisions of this Article 10 may, at the  Company’s request and expense, bear a notation in form approved by the Trustee as to any  matter provided for in such supplemental indenture.  If the Company or the Trustee shall so  determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company,  to any modification of this Indenture contained in any such supplemental indenture may, at the  Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or                                        52                                                                                 





 






an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in  exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.         Section 10.05.  Evidence of Compliance of Supplemental Indenture to Be Furnished  Trustee.  In addition to the documents required by Section 17.05, the Trustee shall receive an  Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental  indenture executed pursuant hereto complies with the requirements of this Article 10 and is  permitted or authorized by this Indenture and that the supplemental indenture constitutes the  legal, valid and binding obligation of the Company enforceable in accordance with its terms.                                    ARTICLE 11                 CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE         Section 11.01.  Company May Consolidate, Etc. on Certain Terms.  Subject to the  provisions of Section 11.02, the Company shall not consolidate with, merge with or into, or sell,  convey, transfer or lease all or substantially all of its properties and assets to another Person,  unless:        (a)  the resulting, surviving or transferee Person (the “Successor Company”), if not the  Company, shall be a corporation organized and existing under the laws of the United States of  America, any State thereof or the District of Columbia, and the Successor Company (if not the  Company) shall expressly assume, by supplemental indenture all of the obligations of the  Company under the Notes and this Indenture; and        (b)  immediately after giving effect to such transaction, no Default or Event of Default  shall have occurred and be continuing under this Indenture.         For purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or  substantially all of the properties and assets of one or more Subsidiaries of the Company to  another Person, which properties and assets, if held by the Company instead of such  Subsidiaries, would constitute all or substantially all of the properties and assets of the Company  on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or  substantially all of the properties and assets of the Company to another Person.         Section 11.02.  Successor Corporation to Be Substituted.  In case of any such  consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the  Successor Company, by supplemental indenture, executed and delivered to the Trustee and  satisfactory in form to the Trustee, of the due and punctual payment of the principal of and  accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the  case may be, of any consideration due upon conversion of the Notes and the due and punctual  performance of all of the covenants and conditions of this Indenture to be performed by the  Company, such Successor Company (if not the Company) shall succeed to and, except in the  case of a lease of all or substantially all of the Company’s properties and assets, shall be  substituted for the Company, with the same effect as if it had been named herein as the party of  the first part.  Such Successor Company thereupon may cause to be signed, and may issue either  in its own name or in the name of the Company any or all of the Notes issuable hereunder which  theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon                                        53                                                                                 





 






the order of such Successor Company instead of the Company and subject to all the terms,  conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall  deliver, or cause to be authenticated and delivered, any Notes that previously shall have been  signed and delivered by the Officers of the Company to the Trustee for authentication, and any  Notes that such Successor Company thereafter shall cause to be signed and delivered to the  Trustee for that purpose.  All the Notes so issued shall in all respects have the same legal rank  and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with  the terms of this Indenture as though all of such Notes had been issued at the date of the  execution hereof.  In the event of any such consolidation, merger, sale, conveyance or transfer  (but not in the case of a lease), upon compliance with this Article 11 the Person named as the  “Company” in the first paragraph of this Indenture (or any successor that shall thereafter have  become such in the manner prescribed in this Article 11) may be dissolved, wound up and  liquidated at any time thereafter and, except in the case of a lease, such Person shall be released  from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture  and the Notes.         In case of any such consolidation, merger, sale, conveyance, transfer or lease, such  changes in phraseology and form (but not in substance) may be made in the Notes thereafter to  be issued as may be appropriate.         Section 11.03.  Opinion of Counsel to Be Given to Trustee.  No such consolidation,  merger, sale, conveyance, transfer or lease shall be effective unless the Trustee shall receive an  Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any such  consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a  supplemental indenture is required in connection with such transaction, such supplemental  indenture, complies with the provisions of this Article 11.                                    ARTICLE 12          IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS         Section 12.01.  Indenture and Notes Solely Corporate Obligations.  No recourse for the  payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based  thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant  or agreement of the Company in this Indenture or in any supplemental indenture or in any Note,  nor because of the creation of any indebtedness represented thereby, shall be had against any  incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past,  present or future, of the Company or of any successor corporation, either directly or through the  Company or any successor corporation, whether by virtue of any constitution, statute or rule of  law, or by the enforcement of any assessment or penalty or otherwise; it being expressly  understood that all such liability is hereby expressly waived and released as a condition of, and  as a consideration for, the execution of this Indenture and the issue of the Notes.                                          54                                                                                 





 






                                 ARTICLE 13                              INTENTIONALLY OMITTED                                    ARTICLE 14                               CONVERSION OF NOTES         Section 14.01.  Conversion Privilege.  (a) Subject to and upon compliance with the  provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option,  to convert all or any portion (if the portion to be converted is $1,000 principal amount or a  multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section  14.01(b), at any time prior to the close of business on the Business Day immediately preceding  March 1, 2025 under the circumstances and during the periods set forth in Section 14.01(b), and  (ii) regardless of the conditions described in Section 14.01(b), on or after March 1, 2025 and  prior to the close of business on the second Scheduled Trading Day immediately preceding the  Maturity Date, in each case, at an initial conversion rate of 7.4437 shares of Common Stock  (subject to adjustment as provided in this Article 14, the “Conversion Rate”) per $1,000  principal amount of Notes (subject to, and in accordance with, the settlement provisions of  Section 14.02, the “Conversion Obligation”).        (b)  (i) Prior to the close of business on the Business Day immediately preceding  March 1, 2025, a Holder may surrender all or any portion of its Notes for conversion at any time  during the five Business Day period after any five consecutive Trading Day period (the  “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as  determined following a request by a Holder of Notes in accordance with this Section 14.01(b)(i),  for each Trading Day of the Measurement Period was less than 98% of the product of the Last  Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading Day.   The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this Section  14.01(b)(i) and the definition of Trading Price set forth in this Indenture.  The Company shall  provide written notice to the Bid Solicitation Agent (if other than the Company) of the three  independent nationally recognized securities dealers selected by the Company pursuant to the  definition of Trading Price to solicit bids, along with appropriate contact information for each.   The Bid Solicitation Agent (if other than the Company) shall have no obligation to determine the  Trading Price per $1,000 principal amount of Notes unless the Company has requested such  determination in writing, and the Company shall have no obligation to make such request (or, if  the Company is acting as Bid Solicitation Agent, the Company shall have no obligation to  determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least  $1,000,000 aggregate principal amount of Notes provides the Company with reasonable  evidence that the Trading Price per $1,000 principal amount of Notes would be less than 98% of  the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate, at  which time the Company shall instruct the Bid Solicitation Agent (if other than the Company) to  determine, or if the Company is acting as Bid Solicitation Agent, the Company shall determine,  the Trading Price per $1,000 principal amount of Notes beginning on the next Trading Day and  on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is  greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock  and the Conversion Rate and the Company shall instruct the three independent nationally  recognized securities dealers to deliver bids to the Bid Solicitation Agent (if other than the                                        55                                                                                 





 






Company). If (x) the Company is not acting as Bid Solicitation Agent, and the Company does  not instruct the Bid Solicitation Agent in writing to determine the Trading Price per $1,000  principal amount of Notes when obligated as provided in the preceding sentence, or if the  Company so instructs the Bid Solicitation Agent to obtain bids and the Bid Solicitation Agent  fails to make such determination, or (y) the Company is acting as Bid Solicitation Agent and the  Company fails to make such determination when obligated as provided in the preceding sentence  then, in either case, the Trading Price per $1,000 principal amount of Notes shall be deemed to  be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the  Conversion Rate on each Trading Day of such failure.  If the Trading Price condition set forth  above has been met, the Company shall so notify the Holders, the Trustee and the Conversion  Agent (if other than the Trustee) in writing on or within one Business Day of such determination  (and the relevant five Business Day period during which Holders may surrender their notes for  conversion pursuant to this Section 14.01(b)(i) shall begin on the date the Company provides  such notice (or if such date is not a Business Day, the immediately following Business Day).  If,  at any time after the Trading Price condition set forth above has been met, the Trading Price per  $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last  Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company  shall so notify the Holders of the Notes, the Trustee and the Conversion Agent (if other than the  Trustee) in writing that the Trading Price condition is no longer met.                (ii)  If, prior to the close of business on the Business Day immediately        preceding March 1, 2025, the Company elects to:                      (A)   issue to all or substantially all holders of the Common Stock any              rights, options or warrants (other than in connection with a stockholder rights              plan prior to the separation of  such rights from the Common Stock) entitling              them, for a period of not more than 45 calendar days after the announcement date              of such issuance, to subscribe for or purchase shares of the Common Stock at a              price per share that is less than the average of the Last Reported Sale Prices of              the Common Stock for the 10 consecutive Trading Day period ending on, and              including, the Trading Day immediately preceding the date of announcement of              such issuance; or                      (B)   distribute to all or substantially all holders of the Common Stock              the Company’s assets, securities or rights to purchase securities of the Company              (other than in connection with a stockholder rights plan prior to the separation of               such rights from the Common Stock), which distribution has a per share value, as              reasonably determined by the Company in good faith, exceeding 10% of the Last              Reported Sale Price of the Common Stock on the Trading Day preceding the date              of announcement for such distribution,   then, in either case, the Company shall notify all Holders of the Notes, the Trustee and the  Conversion Agent (if other than the Trustee) at least 50 Scheduled Trading Days prior to the Ex- Dividend Date for such issuance or distribution.  Once the Company has given such notice, a  Holder may surrender all or any portion of its Notes for conversion at any time until the earlier of  (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for  such issuance or distribution and (2) the Company’s announcement that such issuance or                                        56                                                                                 





 






distribution will not take place, in each case, even if the Notes are not otherwise convertible at  such time.               (iii) If (i) a transaction or event that constitutes a Fundamental Change or a        Make-Whole Fundamental Change occurs prior to the close of business on the Business        Day immediately preceding March 1, 2025, regardless of whether a Holder has the right        to require the Company to repurchase the Notes pursuant to Section 15.02, or (ii) if the        Company is a party to a consolidation, merger, binding share exchange, or transfer or        lease of all or substantially all of its assets (in each case, other than solely for the purpose        of changing the Company’s jurisdiction of organization that (x) does not constitute a        Fundamental Change or a Make-Whole Fundamental Change and (y) results in a        reclassification, conversion or exchange of outstanding shares of the Common Stock        solely into shares of common stock of the surviving entity and such common stock        becomes Reference Property for the Notes pursuant to Section 14.07) that occurs prior to        the close of business on the Business Day immediately preceding March 1, 2025, in each        case pursuant to which the Common Stock would be converted into cash, securities or        other assets, then, in each case, all or any portion of a Holder’s Notes may be surrendered        for conversion at any time from or after the effective date of the transaction or event until        35 Trading Days after the actual effective date of such transaction or event or, if such        transaction also constitutes a Fundamental Change, until the close of business on the        Business Day immediately preceding the related Fundamental Change Repurchase Date.         The Company shall notify Holders, the Trustee and the Conversion Agent (if other than        the Trustee) as promptly as practicable following the date the Company publicly        announces such transaction or event but in no event later than the actual effective date of        such transaction or event.               (iv)  Prior to the close of business on the Business Day immediately preceding        March 1, 2025, a Holder may surrender all or any portion of its Notes for conversion at        any time during any calendar quarter commencing after the calendar quarter ending on        September 30, 2020 (and only during such calendar quarter), if the Last Reported Sale        Price of the Common Stock for at least 20 Trading Days (whether or not consecutive)        during the period of 30 consecutive Trading Days ending on, and including, the last        Trading Day of the immediately preceding calendar quarter is greater than or equal to        130% of the Conversion Price on each applicable Trading Day.               (v)   If the Company calls any or all of the Notes for redemption pursuant to        Article 16 prior to the close of business on the Business Day immediately preceding        March 1, 2025, then a Holder may surrender all or any portion of its Notes for conversion        at any time prior to the close of business on the second Scheduled Trading Day prior to        the Redemption Date, even if the Notes are not otherwise convertible at such time.  After        that time, the right to convert shall expire, unless the Company defaults in the payment of        the Redemption Price, in which case a Holder of Notes may convert its Notes until the        Redemption Price has been paid or duly provided for.                                          57                                                                                 





 






      Section 14.02.  Conversion Procedure; Settlement Upon Conversion.          (a)  Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon  conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting  Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash  Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering  any fractional share of Common Stock in accordance with subsection (j) of this Section 14.02  (“Physical Settlement”) or a combination of cash and shares of Common Stock, together with  cash, if applicable, in lieu of delivering  any fractional share of Common Stock in accordance  with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth  in this Section 14.02.                (i)  All conversions occurring (x) on or after March 1, 2025 or (y) during a        Redemption Period shall be settled using the same Settlement Method.                 (ii)  Except for any conversions for which the relevant Conversion Date occurs        during a Redemption Period and any conversions for which the relevant Conversion Date        occurs on or after March 1, 2025, the Company shall use the same Settlement Method for        all conversions occurring on the same Conversion Date, but the Company shall not have        any obligation to use the same Settlement Method with respect to conversions that occur        on different Conversion Dates.               (iii) If, in respect of any Conversion Date (or any conversions occurring        (x) during a Redemption Period or (y) on or after March 1, 2025, as the case may be), the        Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement        Method in respect of such Conversion Date (or such period, as the case may be), the        Company shall deliver such Settlement Notice to converting Holders, the Trustee and the        Conversion Agent (if other than the Trustee) no later than the close of business on the        Trading Day immediately following the relevant Conversion Date (or, in the case of any        conversions occurring (x) during a Redemption Period, in such Redemption Notice, or        (y) on or after March 1, 2025, no later than the close of business on Business Day        immediately preceding March 1, 2025).  If the Company does not timely elect a        Settlement Method prior to the deadline set forth in the immediately preceding sentence,        the Company shall no longer have the right to elect Cash Settlement or Physical        Settlement for such conversion or during such period and the Company shall be deemed        to have elected Combination Settlement in respect of its Conversion Obligation, and the        Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be        equal to $1,000.  Such Settlement Notice shall specify the relevant Settlement Method        and in the case of an election of Combination Settlement, the relevant Settlement Notice        shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes to be        converted.  If the Company delivers a Settlement Notice electing Combination Settlement        in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount        per $1,000 principal amount of Notes to be converted in such Settlement Notice, the        Specified Dollar Amount per $1,000 principal amount of Notes to be converted shall be        deemed to be $1,000.                                         58                                                                                 





 






      By notice to Holders of the Notes, the Trustee and the Conversion Agent (if other  than the Trustee), the Company may, prior to March 1, 2025, at its option, irrevocably  elect to satisfy our Conversion Obligation with respect to the Notes through Combination  Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of  $1,000 for all Conversion Dates occurring subsequent to delivery of such notice;  provided, however, that no such election will affect any Settlement Method theretofore  elected (or deemed to be elected) with respect to any Note; provided, further, that any  such election that is made during a Redemption Period (but after the related Redemption  Notice Date) will not apply to any conversions of Notes called for redemption with  Conversion Dates that occur during such Redemption Period. For the avoidance of doubt,  such an irrevocable election, if made, will be effective without the need to amend this  Indenture or the Notes, including pursuant to Section 10.01(k). However, the Company  may nonetheless choose to execute such an amendment at its option.         (iv)  The cash, shares of Common Stock or combination of cash and shares of  Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall  be computed as follows:                (A)   if the Company elects to satisfy its Conversion Obligation in        respect of such conversion by Physical Settlement, the Company shall deliver to        the converting Holder in respect of each $1,000 principal amount of Notes being        converted a number of shares of Common Stock equal to the Conversion Rate in        effect on the Conversion Date;                (B)   if the Company elects to satisfy its Conversion Obligation in        respect of such conversion by Cash Settlement, the Company shall pay to the        converting Holder in respect of each $1,000 principal amount of Notes being        converted cash in an amount equal to the sum of the Daily Conversion Values for        each of the 40 consecutive Trading Days during the related Observation Period;        and                (C)   if the Company elects (or is deemed to have elected) to satisfy its        Conversion Obligation in respect of such conversion by Combination Settlement,        the Company shall pay or deliver, as the case may be, in respect of each $1,000        principal amount of Notes being converted, a Settlement Amount equal to the        sum of the Daily Settlement Amounts for each of the 40 consecutive Trading        Days during the related Observation Period.           (v)   The Daily Settlement Amounts (if applicable) and the Daily Conversion  Values (if applicable) shall be determined by the Company promptly following the last  day of the Observation Period.  Promptly after such determination of the Daily Settlement  Amounts or the Daily Conversion Values, as the case may be, and the amount of cash  payable in lieu of delivering any fractional share of Common Stock, the Company shall  notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily  Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount  of cash payable in lieu of delivering fractional shares of Common Stock.  The Trustee                                   59                                                                           





 






      and the Conversion Agent (if other than the Trustee) shall have no responsibility for any        such determination.        (b)  Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert  a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the  procedures of the Depositary in effect at that time and, if required, pay funds equal to interest  payable on the next Interest Payment Date to which such Holder is not entitled as set forth in  Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver  an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion  (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the  office of the Conversion Agent and state in writing therein the principal amount of Notes to be  converted and the name or names (with addresses) in which such Holder wishes the certificate or  certificates for any shares of Common Stock to be delivered upon settlement of the Conversion  Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank  (and accompanied by appropriate endorsement and transfer documents), at the office of the  Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and  (4) if required, pay funds equal to interest payable on the next Interest Payment Date to which  such Holder is not entitled as set forth in Section 14.02(h).  The Trustee (and, if different, the  Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the  Conversion Date for such conversion.  No Notes may be surrendered for conversion by a Holder  thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the  Company in respect of such Notes and has not validly withdrawn such Fundamental Change  Repurchase Notice in accordance with Section 15.03.         If more than one Note shall be surrendered for conversion at one time by the same  Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of  the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted  thereby) so surrendered.        (c)  A Note shall be deemed to have been converted immediately prior to the close of  business on the date (the “Conversion Date”) that the Holder has complied with the  requirements set forth in subsection (b) above.  Except as set forth in Section 14.03(b) and  Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in  respect of the Conversion Obligation on the second Business Day immediately following the  relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business  Day immediately following the last Trading Day of the relevant Observation Period, in the case  of any other Settlement Method.  If any shares of Common Stock are due to converting Holders,  the Company shall issue or cause to be issued, and deliver to the Conversion Agent or to such  Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the  Depositary for the full number of shares of Common Stock to which such Holder shall be  entitled in satisfaction of the Company’s Conversion Obligation.        (d)  In case any Note shall be surrendered for partial conversion, the Company shall  execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder  of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate  principal amount equal to the unconverted portion of the surrendered Note, without payment of  any service charge by the converting Holder but, if required by the Company or Trustee, with                                        60                                                                                 





 






payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or  similar governmental charge required by law or that may be imposed in connection therewith as  a result of the name of the Holder of the new Notes issued upon such conversion being different  from the name of the Holder of the old Notes surrendered for such conversion.        (e)  If a Holder submits a Note for conversion, the Company shall pay any  documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common  Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued  in a name other than the Holder’s name, in which case the Holder shall pay that tax.  The  Conversion Agent may refuse to deliver the certificates representing the shares of Common  Stock being issued in a name other than the Holder’s name until the Trustee receives a sum  sufficient to pay any tax that is due by such Holder in accordance with the immediately  preceding sentence.          (f)  Except as provided in Section 14.04, no adjustment shall be made for dividends on  any shares of Common Stock issued upon the conversion of any Note as provided in this Article  14.        (g)  Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian  at the direction of the Trustee, shall make a notation on such Global Note as to the reduction in  the principal amount represented thereby.  The Company shall notify the Trustee in writing of  any conversion of Notes effected through any Conversion Agent other than the Trustee.        (h)  Upon conversion, a Holder shall not receive any separate cash payment for accrued  and unpaid interest, if any, except as set forth below, and the Company shall not adjust the  Conversion Rate for any accrued and unpaid interest.  The Company’s settlement of the full  Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal  amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant  Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the  relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished  or forfeited.  Upon a conversion of Notes into a combination of cash and shares of Common  Stock, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such  conversion.  Notwithstanding the foregoing, if Notes are converted after the close of business on  a Regular Record Date and prior to the open of business on the corresponding Interest Payment  Date, Holders of such Notes as of the close of business on such Regular Record Date will receive  the full amount of interest payable on such Notes on the corresponding Interest Payment Date  notwithstanding the conversion.  Notes surrendered for conversion during the period from the  close of business on any Regular Record Date until the open of business on the immediately  following Interest Payment Date must be accompanied by funds equal to the amount of interest  payable on the Notes so converted (regardless of whether or not the converting Holder was the  record holder on such Regular Record Date); provided that no such payment shall be required (1)  for conversions following the Regular Record Date immediately preceding the Maturity Date; (2)  if the Company has specified a Fundamental Change Repurchase Date that is after a Regular  Record Date and on or prior to the Business Day immediately following the corresponding  Interest Payment Date; (3) if the Company has specified a Redemption Date that is after a  Regular Record Date and on or prior to the second Scheduled Trading Day immediately  following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted                                        61                                                                                 





 






Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note.   Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date  immediately preceding the Maturity Date shall receive the full interest payment due on the  Maturity Date in cash regardless of whether their Notes have been converted following such  Regular Record Date.        (i)  The Person in whose name the certificate for any shares of Common Stock  delivered upon conversion is registered shall be treated as a stockholder of record as of the close  of business on the relevant Conversion Date (if the Company elects to satisfy the related  Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant  Observation Period (if the Company elects to satisfy the related Conversion Obligation by  Combination Settlement), as the case may be.  Upon a conversion of Notes, such Person shall no  longer be a Holder of such Notes surrendered for conversion.        (j)  The Company shall not issue any fractional share of Common Stock upon  conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of  Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion  Date (in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day  of the relevant Observation Period (in the case of Combination Settlement). For each Note  surrendered for conversion, if the Company has elected (or is deemed to have elected)  Combination Settlement, the full number of shares that shall be issued upon conversion thereof  shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant  Observation Period and any fractional shares remaining after such computation shall be paid in  cash.           Section 14.03.  Increased Conversion Rate Applicable to Certain Notes Surrendered in  Connection with Make-Whole Fundamental Changes or During a Redemption Period.  (a)  If  (x) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date  and a Holder elects to convert its Notes in connection with such Make-Whole Fundamental  Change or the Company issues a Redemption Notice pursuant to Section 16.02 and a Holder  elects to convert its Notes during the related Redemption Period, the Company shall, under the  circumstances described below, increase the Conversion Rate for the Notes so surrendered for  conversion by a number of additional shares of Common Stock (the “Additional Shares”), as  described below.  A conversion of Notes shall be deemed for these purposes to be “in connection  with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received  by the Conversion Agent from, and including, the Effective Date of the Make-Whole  Fundamental Change up to, and including, the close of business on the Business Day  immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a  Make-Whole Fundamental Change that would have been a Fundamental Change but for the  proviso in clause (b) of the definition thereof, the close of business on the 35th Trading Day  immediately following the Effective Date of such Make-Whole Fundamental Change) (such  period, the “Make-Whole Fundamental Change Period”).          (b)  Upon surrender of Notes for conversion in connection with a Make-Whole  Fundamental Change pursuant to Section 14.01(b)(iii) or during a Redemption Period pursuant  to Section 14.01(b)(v), the Company shall, at its option, satisfy the related Conversion  Obligation by Physical Settlement, Cash Settlement or Combination Settlement in accordance                                        62                                                                                 





 






with Section 14.02 based on the Conversion Rate as increased to reflect the Additional Shares  pursuant to the table below; provided, however, that if, at the effective time of a Make-Whole  Fundamental Change described in clause (b) of the definition of Fundamental Change, the  Reference Property following such Make-Whole Fundamental Change is composed entirely of  cash, for any conversion of Notes following the Effective Date of such Make-Whole  Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock  Price for the transaction and shall be deemed to be an amount of cash per $1,000 principal  amount of converted Notes equal to the Conversion Rate (including any adjustment for  Additional Shares), multiplied by such Stock Price.  In such event, the Conversion Obligation  shall be determined and paid to Holders in cash on the second Business Day following the  Conversion Date. The Company shall notify the Holders of Notes, the Trustee and the  Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole  Fundamental Change no later than five Business Days after such Effective Date.        (c)  The number of Additional Shares, if any, by which the Conversion Rate shall be  increased for conversions during the Make-Whole Fundamental Change Period or during the  Redemption Period shall be determined by reference to the table below, based on the date on  which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”)  or the Redemption Notice Date, as the case may be, and the price (the “Stock Price”) paid (or  deemed to be paid) per share of the Common Stock in the Make-Whole Fundamental Change or  on the Redemption Notice Date, as applicable, as set forth in this Section 14.03.  If the holders of  the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole  Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock  Price shall be the cash amount paid per share.  In the case of any other Make-Whole  Fundamental Change or in the case of any Optional Redemption, the Stock Price shall be the  average of the Last Reported Sale Prices of the Common Stock over the five consecutive Trading  Day period ending on, and including, the Trading Day immediately preceding the Effective Date  of the Make-Whole Fundamental Change or the Redemption Notice Date, as the case may be.   The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith  determination, to account for any adjustment to the Conversion Rate that becomes effective, or  any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective  Date (as such term is defined for purposes of Section 14.04) or expiration date of the event  occurs, during such five consecutive Trading Day period. In the event that a Conversion Date  occurs during both a Redemption Period and a Make-Whole Fundamental Change Period, a  Holder of any such Notes to be converted will be entitled to a single increase to the Conversion  Rate with respect to the first to occur of (i) the applicable Redemption Notice Date and (ii) the  Effective Date, and the later event shall be deemed not to have occurred for purposes of this  Section 14.03.        (d)  The Stock Prices set forth in the column headings of the table below shall be  adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted.  The  adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such  adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately  prior to such adjustment giving rise to the Stock Price adjustment and the denominator of which  is the Conversion Rate as so adjusted.  The number of Additional Shares set forth in the table                                         63                                                                                 





 






    below shall be adjusted in the same manner and at the same time as the Conversion Rate as set      forth in Section 14.04.            (e)  The following table sets forth the number of Additional Shares of Common Stock      by which the Conversion Rate shall be increased per $1,000 principal amount of Notes pursuant      to this Section 14.03 for each Stock Price and Effective Date set forth below:                                                 Stock Price  Effective Date/  Redemption  Notice Date $103.34 $110.00 $120.00 $134.34 $140.00 $150.00 $160.00 $174.64 $180.00 $200.00 $220.00 $260.00 $300.00 $350.00 $400.00  May 27, 2020 · 2.2330 1.9241 1.5495 1.1498 1.0256 0.8412 0.6929 0.5247 0.4747 0.3278 0.2269 0.1070 0.0468 0.0123 0.0007  June 1, 2021 ·· 2.2330 1.9221 1.5271 1.1102 0.9819 0.7931 0.6431 0.4757 0.4265 0.2846 0.1899 0.0820 0.0315 0.0056 0.0000  June 1, 2022 ·· 2.2330 1.8935 1.4746 1.0391 0.9071 0.7157 0.5663 0.4035 0.3567 0.2253 0.1415 0.0525 0.0155 0.0006 0.0000  June 1, 2023 ·· 2.2330 1.8338 1.3815 0.9227 0.7875 0.5958 0.4511 0.3006 0.2590 0.1479 0.0830 0.0225 0.0029 0.0000 0.0000  June 1, 2024 ·· 2.2330 1.7275 1.2139 0.7177 0.5803 0.3969 0.2701 0.1530 0.1240 0.0553 0.0229 0.0014 0.0000 0.0000 0.0000  June 1, 2025 ·· 2.2330 1.6472 0.8897 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000                   The exact Stock Prices and Effective Dates or Redemption Notice Dates, may not be set forth in      the table above, in which case:                    (i)  if the Stock Price is between two Stock Prices in the table above or the            Effective Date or the Redemption Notice Date, as the case may be, is between two            Effective Dates or Redemption Notice Dates, as applicable, in the table above, the            number of Additional Shares by which the Conversion Rate shall be increased shall be            determined by a straight-line interpolation between the number of Additional Shares set            forth for the higher and lower Stock Prices and the earlier and later Effective Dates or            Redemption Notice Dates, as applicable, based on a 365-day year;                   (ii)  if the Stock Price is greater than $400.00 per share (subject to adjustment            in the same manner as the Stock Prices set forth in the column headings of the table            above pursuant to subsection (d) above), no Additional Shares shall be added to the            Conversion Rate; and                    (iii) if the Stock Price is less than $103.34 per share (subject to adjustment in            the same manner as the Stock Prices set forth in the column headings of the table above            pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion            Rate.       Notwithstanding the foregoing, in no event shall the Conversion Rate per $1,000 principal      amount of Notes exceed 9.6767 shares of Common Stock, subject to adjustment in the same      manner as the Conversion Rate pursuant to Section 14.04.            (f)  Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate      pursuant to Section 14.04 in respect of a Make-Whole Fundamental Change.             Section 14.04.  Adjustment of Conversion Rate.  The Conversion Rate shall be adjusted      from time to time by the Company if any of the following events occurs, except that the      Company shall not make any adjustments to the Conversion Rate if Holders of the Notes                                            64                                                                                     





 






participate (other than in the case of (x) a share split or share combination or (y) a tender or  exchange offer), at the same time and upon the same terms as holders of the Common Stock and  solely as a result of holding the Notes, in any of the transactions described in this Section 14.04,  without having to convert their Notes, as if they held a number of shares of Common Stock equal  to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes  held by such Holder.        (a)  If the Company exclusively issues shares of Common Stock as a dividend or  distribution on shares of the Common Stock, or if the Company effects a share split or share  combination, the Conversion Rate shall be adjusted based on the following formula:                                             OS'                                CR' = CR 0                                                OS0  where,   CR0   =    the Conversion Rate in effect immediately prior to the open of business on the Ex-            Dividend Date of such dividend or distribution, or immediately prior to the open of             business on the Effective Date of such share split or share combination, as             applicable;   CR'   =    the Conversion Rate in effect immediately after the open of business on such Ex-            Dividend Date or Effective Date, as the case may be;   OS0   =    the number of shares of Common Stock outstanding immediately prior to the open             of business on such Ex-Dividend Date or Effective Date (before giving effect to             any such dividend, distribution, share split or share combination), as the case may             b; and   OS'   =    the number of shares of Common Stock outstanding immediately after giving             effect to such dividend, distribution, share split or share combination, as the case             may be.   Any adjustment made under this Section 14.04(a) shall become effective immediately after the  open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after  the open of business on the Effective Date for such share split or share combination, as  applicable.  If any dividend or distribution of the type described in this Section 14.04(a) is  declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective  as of the date the Board of Directors determines not to pay such dividend or distribution, to the  Conversion Rate that would then be in effect if such dividend or distribution had not been  declared.        (b)  If the Company issues to all or substantially all holders of the Common Stock any  rights, options or warrants (other than in connection with a stockholder rights plan) entitling  them, for a period of not more than 45 calendar days after the announcement date of such  issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is  less than the average of the Last Reported Sale Prices of the Common Stock for the 10                                        65                                                                                 





 






consecutive Trading Day period ending on, and including, the Trading Day immediately  preceding the date of announcement of such issuance, the Conversion Rate shall be increased  based on the following formula:                                            OS0 + X                               CR' = CR 0                                                OS0 + Y  where,   CR0   =    the Conversion Rate in effect immediately prior to the open of business on the Ex-            Dividend Date for such issuance;   CR'   =    the Conversion Rate in effect immediately after the open of business on such Ex-            Dividend Date;   OS0   =    the number of shares of Common Stock outstanding immediately prior to the open             of business on such Ex-Dividend Date;   X     =    the total number of shares of Common Stock issuable pursuant to such rights,             options or warrants; and   Y     =    the number of shares of Common Stock equal to the aggregate price payable to             exercise such rights, options or warrants, divided by the average of the Last             Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day             period ending on, and including, the Trading Day immediately preceding the date             of announcement of the issuance of such rights, options or warrants.   Any increase made under this Section 14.04(b) shall be made successively whenever any such  rights, options or warrants are issued and shall become effective immediately after the open of  business on the Ex-Dividend Date for such issuance.  To the extent that shares of the Common  Stock are not delivered after the expiration of such rights, options or warrants, the Conversion  Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with  respect to the issuance of such rights, options or warrants been made on the basis of delivery of  only the number of shares of Common Stock actually delivered.  If such rights, options or  warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that  would then be in effect if such Ex-Dividend Date for such issuance had not occurred.         For purposes of this Section 14.04(b) and Section 14.01(b)(ii)(A), in determining whether  any rights, options or warrants entitle the holders of Common Stock to subscribe for or purchase  shares of the Common Stock at a price per share that is less than such average of the Last  Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending  on, and including, the Trading Day immediately preceding the date of announcement of such  issuance, and in determining the aggregate offering price of such shares of Common Stock, there  shall be taken into account any consideration received by the Company for such rights, options  or warrants and any amount payable on exercise or conversion thereof, the value of such  consideration, if other than cash, to be determined in good faith by the Company.                                           66                                                                                 





 






     (c)  If the Company distributes shares of its Capital Stock, evidences of its  indebtedness, other assets or property of the Company or rights, options or warrants to acquire its  Capital Stock or other securities of the Company, to all or substantially all holders of the  Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment  was effected pursuant to Section 14.04(a) or Section 14.04(b), (ii) dividends or distributions paid  exclusively in cash as to which the provisions of Section 14.04(d) shall apply, (iii) rights issued  pursuant a stockholder rights plan except, and to the extent, set forth in Section 14.11,  (iv) distributions of Reference Property in a transaction described in Section 14.07 and (v) Spin- Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of such  shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or  warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the  Conversion Rate shall be increased based on the following formula:                                              SP0                              CR' = CR 0                                                  SP0 − FMV  where,   CR0   =    the Conversion Rate in effect immediately prior to the open of business on the Ex-            Dividend Date for such distribution;   CR'   =    the Conversion Rate in effect immediately after the open of business on such Ex-            Dividend Date;   SP0   =    the average of the Last Reported Sale Prices of the Common Stock over the 10             consecutive Trading Day period ending on, and including, the Trading Day             immediately preceding the Ex-Dividend Date for such distribution; and   FMV   =    the fair market value (as determined by the Company in good faith) of the             Distributed Property with respect to each outstanding share of the Common Stock             on the Ex-Dividend Date for such distribution.   Any increase made under the portion of this Section 14.04(c) above shall become effective  immediately after the open of business on the Ex-Dividend Date for such distribution.  If such  distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion  Rate that would then be in effect if such distribution had not been declared.  Notwithstanding the  foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in  lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000  principal amount thereof, at the same time and upon the same terms as holders of the Common  Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder  would have received if such Holder owned a number of shares of Common Stock equal to the  Conversion Rate in effect on the Ex-Dividend Date for the distribution.  If the Company  determines the “FMV” (as defined above) of any distribution for purposes of this Section  14.04(c) by reference to the actual or when-issued trading market for any securities, it shall in  doing so consider the prices in such market over the same period used in computing the Last  Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending                                         67                                                                                 





 






on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such  distribution.           With respect to an adjustment pursuant to this Section 14.04(c) where there has been a  payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of  any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit  of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S.  national securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the  following formula:                                          FMV0  + MP0                             CR' = CR 0                                                      MP0  where,   CR0   =    the Conversion Rate in effect immediately prior to the end of the Valuation Period;   CR'   =    the Conversion Rate in effect immediately after the end of the Valuation Period;   FMV0  =    the average of the Last Reported Sale Prices of the Capital Stock or similar equity             interest distributed to holders of the Common Stock applicable to one share of the             Common Stock (determined by reference to the definition of Last Reported Sale             Price as set forth in Section 1.01 as if references therein to Common Stock were to             such Capital Stock or similar equity interest) over the first 10 consecutive Trading             Day period after, and including, the Ex-Dividend Date of the Spin-Off (the             “Valuation Period”) provided that, if there is no Last Reported Sale Price of the             Capital Stock or similar equity interest distributed to holders of the Common Stock             on such Ex-Dividend Date, the “Valuation Period” shall be the first 10 consecutive             Trading Day period after, and including the first Trading Day such Last Reported             Sale Price is available; and   MP0   =    the average of the Last Reported Sale Prices of the Common Stock over the             Valuation Period.   The increase to the Conversion Rate under the preceding paragraph shall occur at the close of  business on the last Trading Day of the Valuation Period; provided that (x) in respect of any  conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date  occurs during the Valuation Period, references to “10” in the portion of this Section 14.04(c)  related to Spin-Offs shall be deemed to be replaced with such lesser number of Trading Days as  have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in  determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash  Settlement or Combination Settlement is applicable, for any Trading Day that falls within the  relevant Observation Period for such conversion and within the Valuation Period, references to  “10” in the portion of this Section 14.04(c) related to Spin-Offs shall be deemed to be replaced  with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such  Spin-Off and such Trading Day in determining the Conversion Rate as of such Trading Day. If  any dividend or distribution that constitutes a Spin-Off is declared, but not so made, the                                        68                                                                                 





 






Conversion Rate shall be immediately decreased, effective as of the date that the Board of  Directors determines not to make such dividend or distribution, to the Conversion Rate that  would then be in effect if such dividend or distribution had not been declared or announced.         For purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights,  options or warrants distributed by the Company to all holders of the Common Stock entitling  them to subscribe for or purchase shares of the Company’s Capital Stock, including Common  Stock (either initially or under certain circumstances), which rights, options or warrants, until the  occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred  with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in  respect of future issuances of the Common Stock, shall be deemed not to have been distributed  for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this  Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon  such rights, options or warrants shall be deemed to have been distributed and an appropriate  adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.04(c).   If any such right, option or warrant, including any such existing rights, options or warrants  distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which  such rights, options or warrants become exercisable to purchase different securities, evidences of  indebtedness or other assets, then the date of the occurrence of any and each such event shall be  deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options  or warrants with such rights (in which case the existing rights, options or warrants shall be  deemed to terminate and expire on such date without exercise by any of the holders thereof).  In  addition, in the event of any distribution (or deemed distribution) of rights, options or warrants,  or any Trigger Event or other event (of the type described in the immediately preceding  sentence) with respect thereto that was counted for purposes of calculating a distribution amount  for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the  case of any such rights, options or warrants that shall all have been redeemed or purchased  without exercise by any holders thereof, upon such final redemption or purchase (x) the  Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and  (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed  distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to  the per share redemption or purchase price received by a holder or holders of Common Stock  with respect to such rights, options or warrants (assuming such holder had retained such rights,  options or warrants), made to all holders of Common Stock as of the date of such redemption or  purchase, and (2) in the case of such rights, options or warrants that shall have expired or been  terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if  such rights, options and warrants had not been issued.         For purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any  dividend or distribution to which this Section 14.04(c) is applicable also includes one or both of:          (A)   a dividend or distribution of shares of Common Stock to which Section 14.04(a)  is applicable (the “Clause A Distribution”); or         (B)   a dividend or distribution of rights, options or warrants to which Section 14.04(b)  is applicable (the “Clause B Distribution”),                                         69                                                                                 





 






then, in either case, (1) such dividend or distribution, other than the Clause A Distribution and  the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section  14.04(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment  required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made,  and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately  follow the Clause C Distribution and any Conversion Rate adjustment required by Section  14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined  by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B  Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II)  any shares of Common Stock included in the Clause A Distribution or Clause B Distribution  shall be deemed not to be “outstanding immediately prior to the open of business on such Ex- Dividend Date or Effective Date” within the meaning of Section 14.04(a) or “outstanding  immediately prior to the open of business on such Ex-Dividend Date” within the meaning of  Section 14.04(b).        (d)  If any cash dividend or distribution is made to all or substantially all holders of the  Common Stock, the Conversion Rate shall be adjusted based on the following formula:                                             SP0                               CR' = CR 0                                                 SP0 − C  where,   CR0   =    the Conversion Rate in effect immediately prior to the open of business on the Ex-            Dividend Date for such dividend or distribution;   CR'   =    the Conversion Rate in effect immediately after the open of business on the Ex-            Dividend Date for such dividend or distribution;   SP0   =    the Last Reported Sale Price of the Common Stock on the Trading Day             immediately preceding the Ex-Dividend Date for such dividend or distribution; and   C     =    the amount in cash per share the Company distributes to all or substantially all             holders of the Common Stock.   Any increase pursuant to this Section 14.04(d) shall become effective immediately after the open  of business on the Ex-Dividend Date for such dividend or distribution.  If such dividend or  distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the  Board of Directors determines not to make or pay such dividend or distribution, to be the  Conversion Rate that would then be in effect if such dividend or distribution had not been  declared.  Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than  “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive,  for each $1,000 principal amount of Notes it holds, at the same time and upon the same terms as  holders of shares of the Common Stock, the amount of cash that such Holder would have  received if such Holder owned a number of shares of Common Stock equal to the Conversion  Rate in effect on the Ex-Dividend Date for such cash dividend or distribution.                                           70                                                                                 





 






     (e)  If the Company or any of its Subsidiaries make a payment in respect of a tender or  exchange offer for the Common Stock (other than an odd-lot tender offer), to the extent that the  cash and value of any other consideration included in the payment per share of the Common  Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10  consecutive Trading Day period commencing on, and including, the Trading Day next  succeeding the last date on which tenders or exchanges may be made pursuant to such tender or  exchange offer, the Conversion Rate shall be increased based on the following formula:                                        AC + (SP'OS')                            CR' = CR 0                                                      OS0 SP'  where,   CR0   =    the Conversion Rate in effect immediately prior to the close of business on the 10th             Trading Day immediately following, and including, the Trading Day next             succeeding the date such tender or exchange offer expires;   CR'   =    the Conversion Rate in effect immediately after the close of business on the 10th             Trading Day immediately following, and including, the Trading Day next             succeeding the date such tender or exchange offer expires;   AC    =    the aggregate value of all cash and any other consideration (the value of any such             non-cash consideration as determined by the Company in good faith) paid or             payable for shares of Common Stock purchased in such tender or exchange offer;   OS0   =    the number of shares of Common Stock outstanding immediately prior to the date             such tender or exchange offer expires (prior to giving effect to the purchase of all             shares of Common Stock accepted for purchase or exchange in such tender or             exchange offer);   OS'   =    the number of shares of Common Stock outstanding immediately after the date             such tender or exchange offer expires (after giving effect to the purchase of all             shares of Common Stock accepted for purchase or exchange in such tender or             exchange offer); and   SP'   =    the average of the Last Reported Sale Prices of the Common Stock over the 10             consecutive Trading Day period commencing on, and including, the Trading Day             next succeeding the date such tender or exchange offer expires.   The increase to the Conversion Rate under this Section 14.04(e) shall occur at the close of  business on the 10th Trading Day immediately following, and including, the Trading Day next  succeeding the date such tender or exchange offer expires; provided that (x) in respect of any  conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date  occurs during the 10 Trading Days immediately following, and including, the Trading Day next  succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in  this Section 14.04(e) shall be deemed replaced with such lesser number of Trading Days as have  elapsed between the date that such tender or exchange offer expires and the Conversion Date in                                        71                                                                                 





 






determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash  Settlement or Combination Settlement is applicable, for any Trading Day that falls within the  relevant Observation Period for such conversion and within the 10 Trading Days immediately  following, and including, the Trading Day next succeeding the expiration date of any tender or  exchange offer, references to “10” or “10th” in this Section 14.04(e) shall be deemed replaced  with such lesser number of Trading Days as have elapsed between the expiration date of such  tender or exchange offer and such Trading Day in determining the Conversion Rate as of such  Trading Day.   In the event the Company or one of its Subsidiaries is obligated to purchase Common Stock  pursuant to any such tender offer or exchange offer described in this Section 14.04(e) but the  Company or such Subsidiary is permanently prevented by applicable law from consummating  any such transaction, or all such purchases are rescinded, then the Conversion Rate shall be  decreased to be the Conversion Rate that would then be in effect if such tender offer or exchange  offer had not been made or had been made only in respect of the purchases that have been  consummated.        (f)  Notwithstanding this Section 14.04 or any other provision of this Indenture or the  Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend Date, and a  Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the  related Record Date would be treated as the record holder of the shares of Common Stock as of  the related Conversion Date as described under Section 14.02(i) based on an adjusted Conversion  Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment  provisions in this Section 14.04, the Conversion Rate adjustment relating to such Ex-Dividend  Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if  such Holder were the record owner of the shares of Common Stock on an unadjusted basis and  participate in the related dividend, distribution or other event giving rise to such adjustment.         (g)  Except as stated herein, the Company shall not adjust the Conversion Rate for the  issuance of shares of the Common Stock or any securities convertible into or exchangeable for  shares of the Common Stock or the right to purchase shares of the Common Stock or such  convertible or exchangeable securities.        (h)  In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this  Section 14.04, and to the extent permitted by applicable law and subject to the applicable rules of  any exchange on which any of the Company’s securities are then listed, the Company from time  to time may increase the Conversion Rate by any amount for a period of at least 20 Business  Days if the Board of Directors determines that such increase would be in the Company’s best  interest.  In addition, to the extent permitted by applicable law and subject to the applicable rules  of any exchange on which any of the Company’s securities are then listed, the Company may  (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to  holders of Common Stock or rights to purchase Common Stock in connection with a dividend or  distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar  event.  Whenever the Conversion Rate is increased pursuant to either of the preceding two  sentences, the Company shall deliver to the Holder of each Note, the Trustee and the Conversion  Agent (if other than the Trustee) a notice of the increase at least 15 days prior to the date the                                         72                                                                                 





 






increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate  and the period during which it will be in effect.        (i)  Notwithstanding anything to the contrary in this Article 14, the Conversion Rate  shall not be adjusted:                (i)  upon the issuance of any shares of Common Stock pursuant to any present        or future plan providing for the reinvestment of dividends or interest payable on the        Company’s securities and the investment of additional optional amounts in shares of        Common Stock under any plan;               (ii)  upon the issuance of any shares of Common Stock or options or rights to        purchase those shares pursuant to any present or future employee, director or consultant        benefit plan or program of or assumed by the Company or any of the Company’s        Subsidiaries;               (iii) upon the issuance of any shares of the Common Stock pursuant to any        option, warrant, right or exercisable, exchangeable or convertible security not described        in clause (ii) of this subsection and outstanding as of the date the Notes were first issued               (iv)  upon the repurchase of shares of Common Stock pursuant to an open-       market share repurchase program or other buy-back transaction that is not a tender offer        or exchange offer of the nature described in Section 14.04(e);               (v)   solely for a change in the par value of the Common Stock; or               (vi)  for accrued and unpaid interest, if any.        (j)  All calculations and other determinations under this Article 14 shall be made by the  Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a share. If an  adjustment to the Conversion Rate otherwise required pursuant to clauses (a), (b), (c), (d) or (e)  of this Section 14.04 would result in a change of less than 1% of the Conversion Rate, then,  notwithstanding the foregoing, the Company may, at its election, defer and carry forward such  adjustment, except that all such deferred adjustments must be given effect immediately upon the  earliest to occur of the following: (i) when all such deferred adjustments would result in an  aggregate change of at least 1% of the Conversion Rate, and (ii) the Conversion Date for any  Notes (if Physical Settlement applies to such conversion), or each Trading Day of the applicable  Observation Period for any Note (if Cash Settlement or Combination Settlement applies to such  conversion), (iii) the Effective Date of a Make-Whole Fundamental Change or the effective date  of a Fundamental Change or (iv) March 1, 2025, in each case without duplication.         (k)  Whenever the Conversion Rate is adjusted as herein provided, the Company shall  promptly file with the Trustee (and the Conversion Agent if not the Trustee) an Officer’s  Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief  statement of the facts requiring such adjustment.  Unless and until a Responsible Officer of the  Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have  knowledge of any adjustment of the Conversion Rate and may assume without inquiry that the                                         73                                                                                 





 






last Conversion Rate of which it has knowledge is still in effect.  Promptly after delivery of such  certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting  forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and  shall deliver such notice of such adjustment of the Conversion Rate to each Holder.  Failure to  deliver such notice shall not affect the legality or validity of any such adjustment.        (l)  For purposes of this Section 14.04, the number of shares of Common Stock at any  time outstanding shall not include shares of Common Stock held in the treasury of the Company  so long as the Company does not pay any dividend or make any distribution on shares of  Common Stock held in the treasury of the Company, but shall include shares of Common Stock  issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.         Section 14.05. Adjustments of Prices.  Whenever any provision of this Indenture requires  the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily  Conversion Values or the Daily Settlement Amounts over a span of multiple days (including,  without limitation, an Observation Period and the period, if any, for determining the Stock Price  for purposes of a Make-Whole Fundamental Change), the Company shall make appropriate  adjustments to each to account for any adjustment to the Conversion Rate that becomes effective,  or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date,  Effective Date or expiration date of the event occurs, at any time during the period when the Last  Reported Sale Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement  Amounts are to be calculated.           Section 14.06.  Shares to Be Fully Paid.  The Company shall use its commercially  reasonable efforts to provide, free from preemptive rights, out of its authorized but unissued  shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of  the Notes from time to time as such Notes are presented for conversion (assuming delivery of the  maximum number of Additional Shares pursuant to Section 14.03 and that at the time of  computation of such number of shares, all such Notes would be converted by a single Holder and  that Physical Settlement is applicable).         Section 14.07.  Effect of Recapitalizations, Reclassifications and Changes of the Common  Stock.          (a)  In the case of:                (i)  any recapitalization, reclassification or change of the Common Stock        (other than changes resulting from a subdivision or combination),                (ii)  any consolidation, merger or combination involving the Company,                (iii) any sale, lease or other transfer to a third party of the consolidated assets        of the Company and the Company’s Subsidiaries substantially as an entirety or                (iv)  any statutory share exchange,                                           74                                                                                 





 






in each case, as a result of which the Common Stock would be converted into, or exchanged for,  stock, other securities, other property or assets (including cash or any combination thereof) (any  such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the  right to convert each $1,000 principal amount of Notes shall be changed into a right to convert  such principal amount of Notes into the kind and amount of shares of stock, other securities or  other property or assets (including cash or any combination thereof) that a holder of a number of  shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event  would have owned or been entitled to receive (the “Reference Property”, with each “unit of  Reference Property” meaning the kind and amount of Reference Property that a holder of one  share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the  effective time of such Merger Event, the Company or the successor or purchasing Person, as the  case may be, shall execute with the Trustee a supplemental indenture permitted under Section  10.01(g) providing for such change in the right to convert each $1,000 principal amount of  Notes; provided, however, that at and after the effective time of the Merger Event (A) the  Company shall continue to have the right to determine the form of consideration to be paid or  delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and  (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section  14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company  would have been required to deliver upon conversion of the Notes in accordance with Section  14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of  that number of shares of Common Stock would have received in such Merger Event and (III) the  Daily VWAP shall be calculated based on the value of a unit of Reference Property.         If the Merger Event causes the Common Stock to be converted into, or exchanged for, the  right to receive more than a single type of consideration (determined based in part upon any form  of stockholder election), then (i) the Reference Property into which the Notes will be convertible  shall be deemed to be the weighted average of the types and amounts of consideration actually  received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of  the immediately preceding paragraph shall refer to the consideration referred to in clause (i)  attributable to one share of Common Stock.  If the holders of the Common Stock receive only  cash in such Merger Event, then for all conversions for which the relevant Conversion Date  occurs after the effective date of such Merger Event (A) the consideration due upon conversion  of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the  Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares  pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such  Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to  converting Holders on the second Business Day immediately following the relevant Conversion  Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the  Trustee) of such weighted average as soon as practicable after such determination is made.         Such supplemental indenture described in the second immediately preceding paragraph  shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is  possible to the adjustments provided for in this Article 14.  If, in the case of any Merger Event,  the Reference Property includes shares of stock, securities or other property or assets (including  cash or any combination thereof) of a Person other than the Company or the successor or  purchasing corporation, as the case may be, in such Merger Event, then such supplemental                                         75                                                                                 





 






indenture shall also be executed by such other Person and shall contain such additional  provisions to protect the interests of the Holders of the Notes as the Board of Directors shall  reasonably consider necessary by reason of the foregoing, including the provisions providing for  the purchase rights set forth in Article 15.        (b)  When the Company executes a supplemental indenture pursuant to subsection (a)  of this Section 14.07, the Company shall promptly file with the Trustee an Officer’s Certificate  briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that  will comprise a unit of Reference Property after any such Merger Event, any adjustment to be  made with respect thereto and that all conditions precedent have been complied with, and shall  promptly deliver or cause to be delivered notice thereof to all Holders.  The Company shall cause  notice of the execution of such supplemental indenture to be delivered to each Holder within 20  days after execution thereof.  Failure to deliver such notice shall not affect the legality or validity  of such supplemental indenture.        (c)  (c)     The Company shall not become a party to any Merger Event unless its  terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the  right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a  combination of cash and shares of Common Stock, as applicable, as set forth in Section 14.01  and Section 14.02 prior to the effective date of such Merger Event.        (d)  The above provisions of this Section shall similarly apply to successive Merger  Events.         (e)  Upon the consummation of any Merger Event, references to “Common Stock” shall  be deemed to refer to any Reference Property that constitutes capital stock after giving effect to  such Merger Event.         Section 14.08.  Certain Covenants.  (a) The Company covenants that all shares of  Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the  Company and free from all taxes, liens and charges with respect to the issue thereof.        (b)  The Company covenants that, if any shares of Common Stock to be provided for  the purpose of conversion of Notes hereunder require registration with or approval of any  governmental authority under any federal or state law before such shares of Common Stock may  be validly issued upon conversion, the Company will, to the extent then permitted by the rules  and interpretations of the Commission, secure such registration or approval, as the case may be.        (c)  The Company further covenants that if at any time the Common Stock shall be  listed on any national securities exchange or automated quotation system the Company will list  and keep listed, so long as the Common Stock shall be so listed on such exchange or automated  quotation system, any Common Stock issuable upon conversion of the Notes.         Section 14.09.  Responsibility of Trustee.  The Trustee and any other Conversion Agent  shall not at any time be under any duty or responsibility to any Holder to determine the  Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any  adjustment (including any increase) of the Conversion Rate, or with respect to the nature or                                        76                                                                                 





 






extent or calculation of any such adjustment when made, or with respect to the method  employed, or herein or in any supplemental indenture provided to be employed, in making the  same.  The Trustee and any other Conversion Agent shall not be accountable with respect to the  validity or value (or the kind or amount) of any shares of Common Stock, or of any securities,  property or cash that may at any time be issued or delivered upon the conversion of any Note;  and the Trustee and any other Conversion Agent make no representations with respect thereto.   Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the  Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other  securities or property or cash upon the surrender of any Note for the purpose of conversion or to  comply with any of the duties, responsibilities or covenants of the Company contained in this  Article.  Without limiting the generality of the foregoing, neither the Trustee nor any Conversion  Agent shall be under any responsibility to determine the correctness of any provisions contained  in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or  amount of shares of stock or securities or property (including cash) receivable by Holders upon  the conversion of their Notes after any event referred to in such Section 14.07 or to any  adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may  accept (without any independent investigation) as conclusive evidence of the correctness of any  such provisions, and shall be protected in conclusively relying upon, the Officer’s Certificate  (which the Company shall be obligated to file with the Trustee prior to the execution of any such  supplemental indenture) with respect thereto.  Neither the Trustee nor the Conversion Agent  shall be responsible for determining whether any event contemplated by Section 14.01(b) has  occurred that makes the Notes eligible for conversion or no longer eligible therefor until the  Company has delivered to the Trustee and the Conversion Agent the notices referred to in  Section 14.01(b) with respect to the commencement or termination of such conversion rights, on  which notices the Trustee and the Conversion Agent may conclusively rely, and the Company  agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the  occurrence of any such event or at such other times as shall be provided for in Section 14.01(b).  Except as otherwise expressly provided herein, neither the Trustee nor any other agent acting  under this Indenture (other than the Company, if acting in such capacity) shall have any  obligation to make any calculation or to determine whether the Notes may be surrendered for  conversion pursuant to this Indenture, or to notify the Company or the Depositary or any of the  Holders if the Notes have become convertible pursuant to the terms of this Indenture.         Section 14.10.  Notice to Holders Prior to Certain Actions.  In case of any:          (a)  action by the Company or one of its Subsidiaries that would require an adjustment  in the Conversion Rate pursuant to Section 14.04 or Section 14.11;        (b)  Merger Event; or        (c)  voluntary or involuntary dissolution, liquidation or winding-up of the Company or  any of its Subsidiaries;   then, in each case (unless notice of such event is otherwise required pursuant to another  provision of this Indenture), the Company shall cause to be filed with the Trustee and the  Conversion Agent (if other than the Trustee) and to be delivered to each Holder, as promptly as  possible but in any event at least 20 days prior to the applicable date hereinafter specified, a                                        77                                                                                 





 






notice stating (i) the date on which a record is to be taken for the purpose of such action by the  Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the  holders of Common Stock of record are to be determined for the purposes of such action by the  Company or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution,  liquidation or winding-up is expected to become effective or occur, and the date as of which it is  expected that holders of Common Stock of record shall be entitled to exchange their Common  Stock for securities or other property deliverable upon such Merger Event, dissolution,  liquidation or winding-up.  Failure to give such notice, or any defect therein, shall not affect the  legality or validity of such action by the Company or one of its Subsidiaries, Merger Event,  dissolution, liquidation or winding-up.         Section 14.11.  Stockholder Rights Plans.  If the Company has a stockholder rights plan  in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such  conversion shall be entitled to receive the appropriate number of rights, if any, and the  certificates representing the Common Stock issued upon such conversion shall bear such  legends, if any, in each case as may be provided by the terms of any such stockholder rights plan,  as the same may be amended from time to time. However, if, prior to any conversion of Notes,  the rights have separated from the shares of Common Stock in accordance with the provisions of  the applicable stockholder rights plan so that the Holders would not be entitled to receive any  rights in respect of Common Stock, if any, issuable upon conversion of the Notes, the  Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or  substantially all holders of the Common Stock Distributed Property as provided in Section  14.04(c), subject to readjustment in the event of the expiration, termination or redemption of  such rights.         Section 14.12.  Exchange in Lieu of Conversion.         (a)  When a Holder surrenders its Notes for conversion, the Company may, at its  election (an “Exchange Election”), direct the Conversion Agent to surrender, on or prior to the  second Business Day (or, if the Company elects Physical Settlement in respect of such  conversion, the Business Day) following the Conversion Date, such Notes to a financial  institution designated by the Company (the “Designated Institution”) for exchange in lieu of  conversion.  In order to accept any Notes surrendered for conversion for exchange in lieu of  conversion, the Designated Institution must agree to timely deliver, in exchange for such Notes,  the cash, shares of Common Stock or combination of cash and Common Stock, at the  Company’s election, that would otherwise be due upon conversion as described in Section 14.02  above or such other amount agreed to by the converting Holder and the Designated Institution  (the “Conversion Consideration”). If the Company makes an Exchange Election, the Company  shall, by the close of business on the Business Day following the relevant Conversion Date,  notify in writing the Holder surrendering Notes for conversion, the Trustee and the Conversion  Agent (if the other than the Trustee) that it has made such election.  In addition, the Company  shall concurrently notify the Designated Institution of the relevant deadline for delivery of the  Conversion Consideration.  Any Notes exchanged by the Designated Institution will remain  outstanding, subject to the applicable procedures of the Depositary.        (b)  If the Designated Institution agrees to accept any Notes for exchange but does not  timely deliver the related Conversion Consideration to the Conversion Agent, or if the                                        78                                                                                 





 






Designated Institution does not accept such Notes for exchange, the Company shall, within the  time period specified in Section 14.02(c), deliver the relevant Conversion Consideration in  accordance with the provisions of Section 14.02.        (c)  For the avoidance of doubt, in no event will the Company’s designation of a  Designated Institution pursuant to this Section 14.12 require the Designated Institution to accept  any Notes for exchange.                                    ARTICLE 15                     REPURCHASE OF NOTES AT OPTION OF HOLDERS         Section 15.01.  Intentionally Omitted.           Section 15.02.  Repurchase at Option of Holders Upon a Fundamental Change.  (a)  If a  Fundamental Change occurs at any time prior to the Maturity Date, each Holder shall have the  right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s  Notes, or any portion thereof properly surrendered and not validly withdrawn pursuant to Section  15.03 that is equal to $1,000 or a multiple of $1,000, on the date (the “Fundamental Change  Repurchase Date”) specified by the Company that is not less than 20 calendar days or more  than 35 calendar days following the date of the Fundamental Change Company Notice at a  repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest,  if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental  Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a  Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record  Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid  interest to Holders of record as of the close of business on such Regular Record Date, and the  Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes  to be repurchased pursuant to this Article 15.  The Fundamental Change Repurchase Date shall  be subject to postponement, without penalty to the Company, in order to allow the Company to  comply with applicable law as a result of any changes to such applicable law occurring after the  date of this Indenture.         (b)  Repurchases of Notes under this Section 15.02 shall be made, at the option of the  Holder thereof, upon:                (i)  delivery to the Paying Agent by a Holder of a duly completed notice (the        “Fundamental Change Repurchase Notice”) in the form set forth in Attachment 2 to        the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in        compliance with the Depositary’s procedures for surrendering interests in Global Notes,        if the Notes are Global Notes, in each case on or before the close of business on the        Business Day immediately preceding the Fundamental Change Repurchase Date; and               (ii)  delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent        at any time after delivery of the Fundamental Change Repurchase Notice (together with        all necessary endorsements for transfer) at the Corporate Trust Office of the Paying        Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance                                         79                                                                                 





 






      with the procedures of the Depositary, in each case such delivery being a condition to        receipt by the Holder of the Fundamental Change Repurchase Price therefor.         The Fundamental Change Repurchase Notice in respect of any Notes to be repurchased  shall state:                (i)  in the case of Physical Notes, the certificate numbers of the Notes to be        delivered for repurchase;               (ii)  the portion of the principal amount of Notes to be repurchased, which        must be $1,000 or a multiple thereof; and               (iii) that the Notes are to be repurchased by the Company pursuant to the        applicable provisions of the Notes and this Indenture;   provided, however, that if the Notes are Global Notes, the Fundamental Change Repurchase  Notice must comply with appropriate Depositary procedures.         Notwithstanding anything herein to the contrary, any Holder delivering to the Paying  Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall  have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at  any time prior to the close of business on the Business Day immediately preceding the  Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the  Paying Agent in accordance with Section 15.03.         The Paying Agent shall promptly notify the Company of the receipt by it of any  Fundamental Change Repurchase Notice or written notice of withdrawal thereof.        (c)  On or before the 20th calendar day after the occurrence of the effective date of a  Fundamental Change, the Company shall provide to all Holders of Notes and the Trustee and the  Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental  Change Company Notice”) of the occurrence of the effective date of the Fundamental Change  and of the repurchase right at the option of the Holders arising as a result thereof.  In the case of  Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such  notice shall be delivered in accordance with the applicable procedures of the Depositary.  Each  Fundamental Change Company Notice shall specify:                (i)  the events causing the Fundamental Change;               (ii)  the effective date of the Fundamental Change;               (iii) the last date on which a Holder may exercise the repurchase right pursuant        to this Article 15;               (iv)  the Fundamental Change Repurchase Price;               (v)   the Fundamental Change Repurchase Date;                                         80                                                                                 





 






            (vi)  the name and address of the Paying Agent and the Conversion Agent, if        applicable;              (vii)  if applicable, the Conversion Rate and any adjustments to the Conversion        Rate as a result of such Fundamental Change (or related Make-Whole Fundamental        Change);              (viii) that the Notes with respect to which a Fundamental Change Repurchase        Notice has been delivered by a Holder may be converted only if the Holder validly        withdraws the Fundamental Change Repurchase Notice in accordance with the terms of        this Indenture; and               (ix)  the procedures that Holders must follow to require the Company to        repurchase their Notes.         No failure of the Company to give the foregoing notices and no defect therein shall limit  the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the  Notes pursuant to this Section 15.02.          At the Company’s request, given at least five days prior to the date the Fundamental  Change Company Notice is to be sent, the Trustee shall give such notice in the Company’s name  and at the Company’s expense; provided, however, that, in all cases, the text of such  Fundamental Change Company Notice shall be prepared by the Company.        (d)  Notwithstanding the foregoing, no Notes may be repurchased by the Company on  any date at the option of the Holders upon a Fundamental Change if the principal amount of the  Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such  date (except in the case of an acceleration resulting from a Default by the Company in the  payment of the Fundamental Change Repurchase Price with respect to such Notes). The Paying  Agent will promptly return to the respective Holders thereof any Physical Notes held by it during  the acceleration of the Notes (except in the case of an acceleration resulting from a Default by  the Company in the payment of the Fundamental Change Repurchase Price with respect to such  Notes), or any instructions for book-entry transfer of the Notes in compliance with the  procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or  cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect  thereto shall be deemed to have been withdrawn.        (e)  Notwithstanding anything to the contrary in this Indenture, the Company shall not  be required to make an offer to repurchase Notes upon the occurrence of a Fundamental Change  otherwise required under this Section 15.02 if a third party makes an offer to purchase Notes in a  manner, at the times and otherwise in compliance with the requirements set forth in this  Indenture applicable to such an offer by the Company and such third party purchases all Notes  properly tendered and not validly withdrawn under such offer to purchase at the same time and  otherwise in compliance with the requirements set forth in this Article 15.         Section 15.03.  Withdrawal of Fundamental Change Repurchase Notice.  (a)  A  Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a                                        81                                                                                 





 






written notice of withdrawal received by the Paying Agent in accordance with this Section 15.03  at any time prior to the close of business on the Business Day immediately preceding the  Fundamental Change Repurchase Date, specifying:                (i)  the principal amount of the Notes with respect to which such notice of        withdrawal is being submitted, which must be $1,000 or a multiple thereof,               (ii)  if Physical Notes have been issued, the certificate number of the Note in        respect of which such notice of withdrawal is being submitted, and               (iii) the principal amount, if any, of such Note that remains subject to the        original Fundamental Change Repurchase Notice, which portion must be in principal        amounts of $1,000 or a multiple of $1,000;   provided, however, that if the Notes are Global Notes, the notice must comply with appropriate  procedures of the Depositary.         Section 15.04.  Deposit of Fundamental Change Repurchase Price.  (a)  The Company  will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the  Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in  Section 4.04) on or prior to 11:00 a.m., New York City time, on the Fundamental Change  Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased  at the appropriate Fundamental Change Repurchase Price.  Subject to receipt of funds and/or  Notes by the Trustee (or other Paying Agent appointed by the Company), payment for Notes  surrendered for repurchase (and not withdrawn prior to the close of business on the Business Day  immediately preceding the Fundamental Change Repurchase Date) will be made on the later of  (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in  Section 15.02) and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee  (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required  by Section 15.02 by mailing checks for the amount payable to the Holders of such Notes entitled  thereto as they shall appear in the Note Register; provided, however, that payments to the  Depositary shall be made by wire transfer of immediately available funds to the account of the  Depositary or its nominee.  The Trustee shall, promptly after such payment and upon written  demand by the Company, return to the Company any funds in excess of the Fundamental Change  Repurchase Price.        (b)  If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase  Date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to  make payment on all the Notes or portions thereof that are to be repurchased on such   Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly  surrendered for repurchase and have not been validly withdrawn in accordance with the  provisions of this Indenture, (i) such Notes will cease to be outstanding, (ii) interest will cease to  accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the  Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders  of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase  Price).                                         82                                                                                 





 






     (c)  Upon surrender of a Note that is to be repurchased in part pursuant to Section  15.02, the Company shall execute and the Trustee shall authenticate and deliver to the Holder a  new Note in an authorized denomination equal in principal amount to the unrepurchased portion  of the Note surrendered.         Section 15.05.  Covenant to Comply with Applicable Laws Upon Repurchase of Notes.  In  connection with any repurchase offer, the Company will, if required:        (a)  comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer  rules under the Exchange Act that may then be applicable;        (b)  file a Schedule TO or any other required schedule under the Exchange Act; and        (c)  otherwise comply with all federal and state securities laws in connection with any  offer by the Company to repurchase the Notes;   in each case, so as to permit the rights and obligations under this Article 15 to be exercised in the  time and in the manner specified in this Article 15.                                    ARTICLE 16                               OPTIONAL REDEMPTION         Section 16.01.  Optional Redemption.  The Notes shall not be redeemable by the  Company prior to June 6, 2023.  On or after June 6, 2023 and prior to March 1, 2025, the  Company may, at its option, redeem (an “Optional Redemption”) for cash all or, from time to  time, any portion of the Notes, at the Redemption Price, if the Last Reported Sale Price of the  Common Stock has been at least 130% of the Conversion Price then in effect for at least 20  Trading Days (whether or not consecutive) during any 30 consecutive Trading Day period  (including the last Trading Day of such period) ending not more than two Trading Days  immediately preceding the date on which the Company provides the Redemption Notice in  accordance with Section 16.02.         Section 16.02.  Notice of Optional Redemption; Selection of Notes.  (a)  In case the  Company exercises its Optional Redemption right to redeem all or, as the case may be, any part  of the Notes pursuant to Section 16.01, it shall fix a date for redemption (each, a “Redemption  Date”) and it or, at its written request received by the Trustee not less than 5 Business Days prior  to the date such Redemption Notice is to be sent (or such shorter period of time as may be  acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall  deliver or cause to be delivered a notice of such Optional Redemption (a “Redemption Notice”)  not less than 45 nor more than 65 Scheduled Trading Days prior to the Redemption Date to each  Holder of Notes so to be redeemed as a whole or in part; provided, however, that any  Redemption Notice Date must be at least one calendar day prior to the first Scheduled Trading  Day of any related Observation Period; provided further that, if the Company shall give such  notice, it shall also give written notice of the Redemption Date to the Trustee.  The Redemption  Date must be a Business Day.                                         83                                                                                 





 






     (b)  The Redemption Notice, if delivered in the manner herein provided, shall be  conclusively presumed to have been duly given, whether or not the Holder receives such notice.   In any case, failure to give such Redemption Notice or any defect in the Redemption Notice to  the Holder of any Note designated for redemption as a whole or in part shall not affect the  validity of the proceedings for the redemption of any other Note.        (c)  Each Redemption Notice shall specify:                (i)  the Redemption Date;               (ii)  the Redemption Price;               (iii) that on the Redemption Date, the Redemption Price will become due and        payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to        accrue on and after the Redemption Date;                (iv)  the place or places where such Notes are to be surrendered for payment of        the Redemption Price;               (v)   that Holders may surrender their Notes for conversion at any time prior to        the close of business on the second Scheduled Trading Day immediately preceding the        Redemption Date;               (vi)  the procedures a converting Holder must follow to convert its Notes and        the Settlement Method and Specified Dollar Amount, if applicable;               (vii)  the Conversion Rate and, if applicable, the number of Additional Shares        added to the Conversion Rate in accordance with Section 14.03;               (viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes;        and               (ix)  in case any Note is to be redeemed in part only, the portion of the principal        amount thereof to be redeemed and on and after the Redemption Date, upon surrender of        such Note, a new Note in principal amount equal to the unredeemed portion thereof shall        be issued, which principal amount must be $1,000 or a multiple thereof.   A Redemption Notice shall be irrevocable.        (d)  If fewer than all of the outstanding Notes are to be redeemed, the Notes to be  redeemed will be selected (x) according to the Depositary’s applicable procedures, in the case of  Notes represented by a Global Note, or (y) in the case of Notes represented by Physical Notes,  by the Trustee pro rata or by lot or in such manner as the Trustee shall deem appropriate and fair.   If any Note selected for partial redemption is submitted for conversion in part after such  selection, the portion of the Note submitted for conversion shall be deemed (so far as may be  possible) to be the portion selected for redemption.                                         84                                                                                 





 






      Section 16.03.  Payment of Notes Called for Redemption.  (a)  If any Redemption Notice  has been given in respect of the Notes in accordance with Section 16.02, the Notes shall become  due and payable on the Redemption Date at the place or places stated in the Redemption Notice  and at the applicable Redemption Price.  On presentation and surrender of the Notes at the place  or places stated in the Redemption Notice, the Notes shall be paid and redeemed by the  Company at the applicable Redemption Price.         (b)  Prior to 11:00 a.m. New York City time on the Redemption Date, the Company  shall deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting  as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of  cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the  Redemption Price of all of the Notes to be redeemed on such Redemption Date.  If the Paying  Agent holds money sufficient to pay the Redemption Price of the Notes to be redeemed on the  applicable Redemption Date, then, with respect to the Notes to be redeemed on such Redemption  Date (which, for the avoidance of doubt, shall not include Notes converted during the related  Redemption Period), such Notes will cease to be outstanding and interest will cease to accrue  (whether or not book-entry transfer of the Notes is made or whether or not the Note is delivered  to the Paying Agent), and all other rights with respect to such Notes of the Holder thereof will  terminate (other than the right to receive the Redemption Price).  Subject to receipt of funds by  the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption Date  for such Notes.  The Paying Agent shall, promptly after such payment and upon written demand  by the Company, return to the Company any funds in excess of the Redemption Price.         Section 16.04.  Restrictions on Redemption.  The Company may not redeem any Notes on  any date if the principal amount of the Notes has been accelerated in accordance with the terms  of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption  Date (except in the case of an acceleration resulting from a Default by the Company in the  payment of the Redemption Price with respect to such Notes).                                    ARTICLE 17                             MISCELLANEOUS PROVISIONS         Section 17.01.  Provisions Binding on Company’s Successors.  All the covenants,  stipulations, promises and agreements of the Company contained in this Indenture shall bind its  successors and assigns whether so expressed or not.         Section 17.02.  Official Acts by Successor Corporation.  Any act or proceeding by any  provision of this Indenture authorized or required to be done or performed by any board,  committee or Officer of the Company shall and may be done and performed with like force and  effect by the like board, committee or officer of any corporation or other entity that shall at the  time be the lawful sole successor of the Company.         Section 17.03.  Addresses for Notices, Etc.  Any notice or demand that by any provision  of this Indenture is required or permitted to be given or served by the Trustee or by the Holders  on the Company shall be deemed to have been sufficiently given or made, for all purposes if  given or served by being deposited postage prepaid by registered or certified mail in a post office                                         85                                                                                 





 






letter box addressed (until another address is filed by the Company with the Trustee) to Five9,  Inc., Bishop Ranch 8, 4000 Executive Parkway, Suite 400, San Ramon, CA 94583, Attention:  General Counsel.  Any notice, direction, request or demand hereunder to or upon the Trustee  shall be deemed to have been sufficiently given or made, for all purposes, if given or served by  being deposited postage prepaid by registered or certified mail in a post office letter box  addressed to the Corporate Trust Office or sent electronically in PDF format.         The Trustee, by notice to the Company, may designate additional or different addresses  for subsequent notices or communications.         Any notice or communication delivered or to be delivered to a Holder of Physical Notes  shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the Note  Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice  or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in  accordance with the applicable procedures of the Depositary and shall be sufficiently given to it  if so delivered within the time prescribed.         Failure to mail or deliver a notice or communication to a Holder or any defect in it shall  not affect its sufficiency with respect to other Holders.  If a notice or communication is mailed or  delivered, as the case may be, in the manner provided above, it is duly given, whether or not the  addressee receives it.         In case by reason of the suspension of regular mail service or by reason of any other  cause it shall be impracticable to give such notice to Holders by mail, then such notification as  shall be made with the approval of the Trustee shall constitute a sufficient notification for every  purpose hereunder.         Section 17.04.  Governing Law; Jurisdiction.  THIS INDENTURE AND EACH NOTE,  AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO  THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED  IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.         The Company irrevocably consents and agrees, for the benefit of the Holders from time  to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with  respect to obligations, liabilities or any other matter arising out of or in connection with this  Indenture or the Notes may be brought in the courts of the State of New York or the courts of the  United States located in the Borough of Manhattan, New York City, New York and, until  amounts due and to become due in respect of the Notes have been paid, hereby irrevocably  consents and submits to the non-exclusive jurisdiction of each such court in personam, generally  and unconditionally with respect to any action, suit or proceeding for itself in respect of its  properties, assets and revenues.           The Company irrevocably and unconditionally waives, to the fullest extent permitted by  law, any objection which it may now or hereafter have to the laying of venue of any of the  aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought  in the courts of the State of New York or the courts of the United States located in the Borough  of Manhattan, New York City, New York and hereby further irrevocably and unconditionally                                        86                                                                                 





 






waives and agrees not to plead or claim in any such court that any such action, suit or proceeding  brought in any such court has been brought in an inconvenient forum.         Section 17.05.  Evidence of Compliance with Conditions Precedent; Certificates and  Opinions of Counsel to Trustee.  Upon any application or demand by the Company to the Trustee  to take any action under any of the provisions of this Indenture, the Company shall furnish to the  Trustee an Officer’s Certificate and, if requested by the Trustee, an Opinion of Counsel stating  that such action is permitted by the terms of this Indenture.  With respect to matters of fact, an  Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.         Each Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the  Company in this Indenture and delivered to the Trustee with respect to compliance with this  Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a) a  statement that the person signing such certificate is familiar with the requested action and this  Indenture; (b) a brief statement as to the nature and scope of the examination or investigation  upon which the statement contained in such certificate is based; (c) a statement that, in the  judgment of such person, he or she has made such examination or investigation as is necessary to  enable him or her to express an informed judgment as to whether or not such action is permitted  by this Indenture; and (d) a statement as to whether or not, in the judgment of such person, such  action is permitted by this Indenture and that all conditions precedent thereto have been complied  with.         Notwithstanding anything to the contrary in this Section 17.05, if any provision in this  Indenture specifically provides that the Trustee shall or may receive an Opinion of Counsel in  connection with any action to be taken by the Trustee or the Company hereunder, the Trustee  shall be entitled to such Opinion of Counsel.         Section 17.06.  Legal Holidays.  In any case where any Interest Payment Date,  Fundamental Change Repurchase Date or Maturity Date is not a Business Day, then any action  to be taken on such date need not be taken on such date, but may be taken on the next succeeding  Business Day with the same force and effect as if taken on such date, and no interest shall accrue  in respect of the delay.         Section 17.07.  No Security Interest Created.  Nothing in this Indenture or in the Notes,  expressed or implied, shall be construed to constitute a security interest under the Uniform  Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any  jurisdiction.         Section 17.08.  Benefits of Indenture.  Nothing in this Indenture or in the Notes,  expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any  Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their  successors hereunder, any benefit or any legal or equitable right, remedy or claim under this  Indenture.         Section 17.09.  Table of Contents, Headings, Etc.  The table of contents and the titles and  headings of the articles and sections of this Indenture have been inserted for convenience of                                         87                                                                                 





 






reference only, are not to be considered a part hereof, and shall in no way modify or restrict any  of the terms or provisions hereof.         Section 17.10.  Authenticating Agent.  The Trustee may appoint an authenticating agent  that shall be authorized to act on its behalf and subject to its direction in the authentication and  delivery of Notes in connection with the original issuance thereof and transfers and exchanges of  Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section  10.04 and Section 15.04 as fully to all intents and purposes as though the authenticating agent  had been expressly authorized by this Indenture and those Sections to authenticate and deliver  Notes.  For all purposes of this Indenture, the authentication and delivery of Notes by the  authenticating agent shall be deemed to be authentication and delivery of such Notes “by the  Trustee” and a certificate of authentication executed on behalf of the Trustee by an  authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for the  Trustee’s certificate of authentication.  Such authenticating agent shall at all times be a Person  eligible to serve as trustee hereunder pursuant to Section 7.08.         Any corporation or other entity into which any authenticating agent may be merged or  converted or with which it may be consolidated, or any corporation or other entity resulting from  any merger, consolidation or conversion to which any authenticating agent shall be a party, or  any corporation or other entity succeeding to the corporate trust business of any authenticating  agent, shall be the successor of the authenticating agent hereunder, if such successor corporation  or other entity is otherwise eligible under this Section 17.10, without the execution or filing of  any paper or any further act on the part of the parties hereto or the authenticating agent or such  successor corporation or other entity.         Any authenticating agent may at any time resign by giving written notice of resignation  to the Trustee and to the Company.  The Trustee may at any time terminate the agency of any  authenticating agent by giving written notice of termination to such authenticating agent and to  the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case  at any time any authenticating agent shall cease to be eligible under this Section, the Trustee may  appoint a successor authenticating agent (which may be the Trustee), shall give written notice of  such appointment to the Company and shall deliver notice of such appointment to all Holders.         The Company agrees to pay to the authenticating agent from time to time reasonable  compensation for its services although the Company may terminate the authenticating agent, if it  determines such agent’s fees to be unreasonable.         The provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section  17.10 shall be applicable to any authenticating agent.         If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have  endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative  certificate of authentication in the following form:   __________________________,  as Authenticating Agent, certifies that this is one of the Notes described  in the within-named Indenture.                                        88                                                                                 





 






By: ____________________  Authorized Signatory         Section 17.11.  Execution in Counterparts.  This Indenture may be executed in any  number of counterparts, each of which shall be an original, but such counterparts shall together  constitute but one and the same instrument. The exchange of copies of this Indenture and of  signature pages by facsimile or PDF transmission shall constitute effective execution and  delivery of this Indenture as to the parties hereto and may be used in lieu of the original  Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall  be deemed to be their original signatures for all purposes.         All notices, approvals, consents, requests and any communications hereunder must be in  writing (provided that any such communication sent to Trustee hereunder must be in the form of  a document that is signed manually or by way of a digital signature provided by DocuSign (or  such other digital signature provider as specified in writing to Trustee by the authorized  representative), in English.  The Company agrees to assume all risks arising out of the use of  using digital signatures and electronic methods to submit communications to Trustee, including  without limitation the risk of Trustee acting on unauthorized instructions, and the risk of  interception and misuse by third parties.         Section 17.12.  Severability.  In the event any provision of this Indenture or in the Notes  shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,  legality or enforceability of the remaining provisions shall not in any way be affected or  impaired.         Section 17.13.  Waiver of Jury Trial.  EACH OF THE COMPANY AND THE  TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED  BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL  PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR  THE TRANSACTIONS CONTEMPLATED HEREBY.         Section 17.14.  Force Majeure.  In no event shall the Trustee be responsible or liable for  any failure or delay in the performance of its obligations hereunder arising out of or caused by,  directly or indirectly, forces beyond its control, including, without limitation, strikes, work  stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural  catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications  or computer (software and hardware) services; it being understood that the Trustee shall use  reasonable efforts that are consistent with accepted practices in the banking industry to resume  performance as soon as practicable under the circumstances.         Section 17.15.  Calculations.  Except as otherwise provided herein, the Company shall be  responsible for making all calculations called for under the Notes.  These calculations include,  but are not limited to, determinations of the Stock Price, the Last Reported Sale Prices of the  Common Stock, the Trading Prices of the Notes (solely for purposes of Section 14.01(b)(i)) the  Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, accrued interest  payable on the Notes and the Conversion Rate of the Notes.  The Company shall make all these  calculations in good faith and, absent manifest error, the Company’s calculations shall be final                                        89                                                                                 





 






and binding on Holders of Notes.  The Company shall provide a schedule of its calculations to  each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent is  entitled to rely conclusively upon the accuracy of the Company’s calculations without  independent verification.  The Company will forward the Company’s calculations to any Holder  of Notes upon the request of that Holder at the sole cost and expense of the Company.         Section 17.16.  U.S.A. PATRIOT Act.  The parties hereto acknowledge that in accordance  with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in  order to help fight the funding of terrorism and money laundering, is required to obtain, verify,  and record information that identifies each person or legal entity that establishes a relationship or  opens an account with the Trustee.  The parties to this Indenture agree that they will provide the  Trustee with such information as it may request in order for the Trustee to satisfy the  requirements of the U.S.A. Patriot Act.                        [Remainder of page intentionally left blank]                                             90                                                                                 





 






         IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly  executed as of the date first written above.                                    FIVE9, INC.                                    By:      /s/ Barry Zwarenstein                                       Name: Barry Zwarenstein                                       Title: Chief Financial Officer                                      U.S. BANK NATIONAL ASSOCIATION, as                                      Trustee                                    By:      /s/ Paula Oswald                                       Name: Paula Oswald                                       Title: Vice President                                                                                                                              





 






                                                                      EXHIBIT A                             [FORM OF FACE OF NOTE]                 [INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]         [UNLESS  THIS  CERTIFICATE  IS  PRESENTED  BY  AN  AUTHORIZED  REPRESENTATIVE  OF  THE  DEPOSITORY  TRUST  COMPANY,  A  NEW  YORK  CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF  TRANSFER,  EXCHANGE,  OR  PAYMENT,  AND  ANY  CERTIFICATE  ISSUED  IS  REGISTERED  IN  THE  NAME  OF  CEDE  &  CO.  OR  IN  SUCH  OTHER  NAME  AS  IS  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT  HEREUNDER  IS  MADE  TO  CEDE  &  CO.  OR  TO  SUCH  OTHER  ENTITY  AS  IS  REQUESTED  BY  AN  AUTHORIZED  REPRESENTATIVE  OF  DTC),  ANY  TRANSFER,  PLEDGE,  OR  OTHER  USE  HEREOF  FOR  VALUE  OR  OTHERWISE  BY  OR  TO  ANY  PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &  CO., HAS AN INTEREST HEREIN.]            [INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]         [THIS  SECURITY  AND  THE  COMMON  STOCK,  IF    ANY,  ISSUABLE  UPON  CONVERSION  OF  THIS  SECURITY  HAVE  NOT  BEEN  REGISTERED  UNDER  THE  SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT  BE  OFFERED,  SOLD,  PLEDGED  OR  OTHERWISE  TRANSFERRED  EXCEPT  IN  ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF  OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:               (1)  REPRESENTS  THAT  IT  AND  ANY  ACCOUNT  FOR  WHICH  IT  IS        ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING        OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE        INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND               (2) AGREES FOR THE BENEFIT OF FIVE9, INC. (THE “COMPANY”) THAT        IT  WILL  NOT  OFFER,  SELL,  PLEDGE  OR  OTHERWISE  TRANSFER  THIS        SECURITY OR ANY BENEFICIAL INTEREST HEREIN OR ANY COMMON STOCK        ISSUABLE  UPON  CONVERSION  OF  THIS  SECURITY  OR  ANY  BENEFICIAL        INTEREST  THEREIN  PRIOR  TO  THE  DATE  THAT  IS  THE  LATER  OF  (X)  ONE        YEAR  AFTER  THE  LAST  ORIGINAL  ISSUE  DATE  HEREOF  OR  SUCH  OTHER        PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT        OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF        ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:                     (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR                                         A-1                                                                                 





 






                  (B)  PURSUANT  TO  A  REGISTRATION  STATEMENT  THAT  HAS              BEEN DECLARED (OR 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  CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO  REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER  EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER FOR THE COMPANY TO  DETERMINE  THAT  THE  PROPOSED  TRANSFER  IS  BEING  MADE  IN  COMPLIANCE  WITH  THE  SECURITIES  ACT  AND  APPLICABLE  STATE  SECURITIES  LAWS.  NO  REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM  THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]         NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF  FIVE9, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144  UNDER  THE  SECURITIES  ACT)  OF  FIVE9,  INC.  DURING  THE    IMMEDIATELY  PRECEDING  THREE  MONTHS  MAY  PURCHASE,  OTHERWISE  ACQUIRE  OR  HOLD  THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.                                         A-2                                                                                 





 






                                  Five9, Inc.                                                                0.500% Convertible Senior Note due 2025   No. RA-[●]                                             Initially $[●]   CUSIP No. 338307 AC51         Five9, Inc., a corporation duly organized and validly existing under the laws of the State  of Delaware (the “Company,” which term includes any successor corporation or other entity  under the Indenture referred to on the reverse hereof), for value received hereby promises to pay  to CEDE & CO., or registered assigns, the principal sum as set forth in the “Schedule of  Exchanges of Notes” attached hereto, which amount, taken together with the principal amounts  of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $747,500,000  in aggregate at any time, in accordance with the rules and procedures of the Depositary, on June  1, 2025, and interest thereon as set forth below.         This Note shall bear interest at the rate of 0.500% per year from May 27, 2020, or from  the most recent date to which interest has been paid or provided for to, but excluding, the next  scheduled Interest Payment Date until June 1, 2025.  Accrued interest on this Note shall be  computed on the basis of a 360-day year composed of twelve 30-day months and, for partial  months, on the basis of the number of days actually elapsed in a 30-day month.  Interest is  payable semi-annually in arrears on each June 1 and December 1, commencing on December 1,  2020, to Holders of record at the close of business on the preceding May 15 and November 15  (whether or not such day is a Business Day), respectively.  Additional Interest will be payable as  set forth in Section 4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture,  and any reference to interest on, or in respect of, any Note therein shall be deemed to include  Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant  to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the  payment of Additional Interest in any provision therein shall not be construed as excluding  Additional Interest in those provisions thereof where such express mention is not made.         Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes,  from, and including, the relevant payment date to, but excluding, the date on which such  Defaulted Amounts shall have been paid by the Company, at its election, in accordance with  Section 2.03(c) of the Indenture.           The Company shall pay the principal of and interest on this Note, if and so long as such  Note is a Global Note, in immediately available funds in lawful money of the United States at the  time to the Depositary or its nominee, as the case may be, as the registered Holder of such Note.   As provided in and subject to the provisions of the Indenture, the Company shall pay the  principal of any Notes (other than Notes that are Global Notes) at the office or agency designated                                  1 This Note will be deemed to be identified by CUSIP No. 338307 AD3 from and after such time when the  Company delivers, pursuant to Section 2.05(c) of the within-mentioned Indenture, written notice to the Trustee of  the occurrence of the Resale Restriction Termination Date and the removal of the restrictive legend affixed to this  Note in accordance with the applicable procedures of the Depositary.                                       A-3                                                                                 





 






by the Company for that purpose.  The Company has initially designated the Trustee as its  Paying Agent and Note Registrar in respect of the Notes and its Corporate Trust Office in the  United States of America, as a place where Notes may be presented for payment or for  registration of transfer and exchange.           Reference is made to the further provisions of this Note set forth on the reverse hereof,  including, without limitation, provisions giving the Holder of this Note the right to convert this  Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock,  as applicable, on the terms and subject to the limitations set forth in the Indenture.  Such further  provisions shall for all purposes have the same effect as though fully set forth at this place.         This Note, and any claim, controversy or dispute arising under or related to this  Note, shall be construed in accordance with and governed by the laws of the State of New  York.         In the case of any conflict between this Note and the Indenture, the provisions of the  Indenture shall control and govern.         This Note shall not be valid or become obligatory for any purpose until the certificate of  authentication hereon shall have been signed manually by the Trustee or a duly authorized  authenticating agent under the Indenture.                        [Remainder of page intentionally left blank]                                         A-4                                                                                 





 






      IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.                                       FIVE9, INC.                                       By:                                              Name:                                            Title:      Dated:    TRUSTEE’S CERTIFICATE OF AUTHENTICATION    U.S. BANK NATIONAL ASSOCIATION  as Trustee, certifies that this is one of the Notes described  in the within-named Indenture.   By:_______________________________       Authorized Signatory                                                                                                                           





 






                        [FORM OF REVERSE OF NOTE]                                     Five9, Inc.                       0.500% Convertible Senior Note due 2025         This Note is one of a duly authorized issue of Notes of the Company, designated as its  0.500% Convertible Senior Notes due 2025 (the “Notes”), initially limited to the aggregate  principal amount of $747,500,00 all issued or to be issued under and pursuant to an Indenture  dated as of May 27, 2020 (the “Indenture”), between the Company and U.S. Bank National  Association (the “Trustee”), to which Indenture and all indentures supplemental thereto  reference is hereby made for a description of the rights, limitations of rights, obligations, duties  and immunities thereunder of the Trustee, the Company and the Holders of the Notes.   Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain  conditions specified in the Indenture.  Capitalized terms used in this Note and not defined in this  Note shall have the respective meanings set forth in the Indenture.         In case certain Events of Default, as defined in the Indenture, shall have occurred and be  continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or  Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said  declaration shall become, due and payable, in the manner, with the effect and subject to the  conditions and certain exceptions set forth in the Indenture.         Subject to the terms and conditions of the Indenture, the Company will make all  payments and deliveries in respect of the Fundamental Change Repurchase Price on the  Fundamental Change Repurchase Date and the principal amount on the Maturity Date, as the  case may be, to the Holder who surrenders a Note to a Paying Agent to collect such payments in  respect of the Note.  The Company will pay cash amounts in money of the United States that at  the time of payment is legal tender for payment of public and private debts.           The Indenture contains provisions permitting the Company and the Trustee in certain  circumstances, without the consent of the Holders of the Notes, and in certain other  circumstances, with the consent of the Holders of not less than a majority in aggregate principal  amount of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute  supplemental indentures modifying the terms of the Indenture and the Notes as described therein.   It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in  aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of  all of the Notes waive any past Default or Event of Default under the Indenture and its  consequences.         No reference herein to the Indenture and no provision of this Note or of the Indenture  shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay  or deliver, as the case may be, the principal (including the Redemption Price and the  Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest on, and the  consideration due upon conversion of, this Note at the place, at the respective times, at the rate  and in the lawful money herein prescribed.                                        R-1                                                                                 





 






      The Notes are issuable in registered form without coupons in denominations of $1,000  principal amount and multiples thereof.  At the office or agency of the Company referred to on  the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes  may be exchanged for a like aggregate principal amount of Notes of other authorized  denominations, without payment of any service charge but, if required by the Company or  Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be  imposed in connection therewith as a result of the name of the Holder of the new Notes issued  upon such exchange of Notes being different from the name of the Holder of the old Notes  surrendered for such exchange.         The Notes shall be redeemable at the Company’s option on or after June 6, 2023 and  prior to March 1, 2025, in accordance with the terms and subject to the conditions specified in  the Indenture.  No sinking fund is provided for the Notes           Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s  option, to require the Company to repurchase for cash all of such Holder’s Notes or any portion  thereof (in principal amounts of $1,000 or multiples thereof) on the Fundamental Change  Repurchase Date at a price equal to the Fundamental Change Repurchase Price.         Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,  during certain periods and upon the occurrence of certain conditions specified in the Indenture,  prior to the close of business on the second Scheduled Trading Day immediately preceding the  Maturity Date, to convert any Notes or portion thereof that is $1,000 or a multiple thereof, into  cash, shares of Common Stock or a combination of cash and shares of Common Stock, as  applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to time as  provided in the Indenture.         Terms used in this Note and defined in the Indenture are used herein as therein defined.                                         R-2                                                                                 





 






                              ABBREVIATIONS         The following abbreviations, when used in the inscription of the face of this Note, shall  be construed as though they were written out in full according to applicable laws or regulations:   TEN COM = as tenants in common             UNIF GIFT MIN ACT = Uniform Gifts to Minors Act    CUST = Custodian    TEN ENT = as tenants by the entireties        JT TEN  = joint tenants with right of survivorship and not as tenants in common            Additional abbreviations may also be used though not in the above list.                                                                                   R-3                                                                                 





 






                                                                                             SCHEDULE A                                 SCHEDULE OF EXCHANGES OF NOTES                                                                                                            Five9, Inc.                                0.500% Convertible Senior Notes due 2025           The initial principal amount of this Global Note is [●] DOLLARS ($[●]).  The following  increases or decreases in this Global Note have been made:                                                                      Principal amount      Signature of                                 Amount of           Amount of      of this Global Note     authorized                                 decrease in         increase in      following such       signatory of                               principal amount   principal amount      decrease or         Trustee or           Date of exchange   of this Global Note of this Global Note    increase           Custodian                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         R-4                                                                                                                  





 






                                                                ATTACHMENT 1                        [FORM OF NOTICE OF CONVERSION]   To:  Five9, Inc.   To: U.S. Bank National Association  633 West Fifth Street, 24th Floor  Los Angeles, CA 90071  Attn: P. Oswald (Five9, Inc.)          The undersigned registered owner of this Note hereby exercises the option to convert this  Note, or the portion hereof (that is $1,000 principal amount or a multiple thereof) below  designated, into cash, shares of Common Stock or a combination of cash and shares of Common  Stock, as applicable, in accordance with the terms of the Indenture referred to in this Note, and  directs that any cash payable and any shares of Common Stock issuable and deliverable upon  such conversion, together with any cash for any fractional share, and any Notes representing any  unconverted principal amount hereof, be issued and delivered to the registered Holder hereof  unless a different name has been indicated below.  If any shares of Common Stock or any portion  of this Note not converted are to be issued in the name of a Person other than the undersigned,  the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in  accordance with Section 14.02(d) and Section 14.02(e) of the Indenture.  Any amount required to  be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used  herein but not defined shall have the meanings ascribed to such terms in the Indenture.   Dated: _____________________  ________________________________                                 ________________________________                                Signature(s)    ___________________________  Signature Guarantee   Signature(s) must be guaranteed  by an eligible Guarantor Institution  (banks, stock brokers, savings and  loan associations and credit unions)  with membership in an approved  signature guarantee medallion program  pursuant to Securities and Exchange  Commission Rule 17Ad-15 if shares  of Common Stock are to be issued, or                                        1                                                                                 





 






Notes are to be delivered, other than  to and in the name of the registered holder.   Fill in for registration of shares if  to be issued, and Notes if to  be delivered, other than to and in the  name of the registered holder:   _________________________  (Name)   _________________________  (Street Address)   _________________________  (City, State and Zip Code)  Please print name and address                                 Principal amount to be converted (if less than all):                                 $______,000                                 NOTICE:  The above signature(s) of the Holder(s) hereof                                must correspond with the name as written upon the face of                                the Note in every particular without alteration or                                enlargement or any change whatever.                                 _________________________                                Social Security or Other Taxpayer                                Identification Number                                              2                                                                                 





 






                                                                ATTACHMENT 2              [FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]   To:  Five9, Inc.   To: U.S. Bank National Association  633 West Fifth Street, 24th Floor  Los Angeles, CA 90071  Attn: P. Oswald (Five9, Inc.)          The undersigned registered owner of this Note hereby acknowledges receipt of a notice  from Five9, Inc. (the “Company”) as to the occurrence of a Fundamental Change with respect to  the Company and specifying the Fundamental Change Repurchase Date and requests and  instructs the Company to pay to the registered holder hereof in accordance with Section 15.02 of  the Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion  thereof (that is $1,000 principal amount or a multiple thereof) below designated, and (2) if such  Fundamental Change Repurchase Date does not fall during the period after a Regular Record  Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if  any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms  used herein but not defined shall have the meanings ascribed to such terms in the Indenture.         In the case of Physical Notes, the certificate numbers of the Notes to be repurchased are  as set forth below:   Dated: _____________________                                 ________________________________                                Signature(s)                                   _________________________                                Social Security or Other Taxpayer                                Identification Number                                 Principal amount to be repurchased (if less than all):                                 $______,000                                 NOTICE:  The above signature(s) of the Holder(s) hereof                                must correspond with the name as written upon the face of                                the Note in every particular without alteration or                                enlargement or any change whatever.                                          1                                                                                 





 






                                                                ATTACHMENT 3                      [FORM OF ASSIGNMENT AND TRANSFER]   U.S. Bank National Association  633 West Fifth Street, 24th Floor  Los Angeles, CA 90071  Attn: P. Oswald (Five9, Inc.)     For value received ____________________________ hereby sell(s), assign(s) and transfer(s)  unto _________________ (Please insert social security or Taxpayer Identification Number of  assignee) the within Note, and hereby irrevocably constitutes and appoints  _____________________ attorney to transfer the said Note on the books of the Company, with  full power of substitution in the premises.   In connection with any transfer of the within Note occurring prior to the Resale Restriction  Termination Date, as defined in the Indenture governing such Note, the undersigned confirms  that such Note is being transferred:   □     To Five9, Inc. or a subsidiary thereof; or   □     Pursuant to a registration statement that has become or been declared effective under the  Securities Act of 1933, as amended; or   □     Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as  amended; or   □     Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as  amended, or any other available exemption from the registration requirements of the Securities  Act of 1933, as amended.                                          1                                                                                 





 






Dated: ________________________   _____________________________________   _____________________________________  Signature(s)   _____________________________________  Signature Guarantee   Signature(s) must be guaranteed by an  eligible Guarantor Institution (banks, stock  brokers, savings and loan associations and  credit unions) with membership in an approved  signature guarantee medallion program pursuant  to Securities and Exchange Commission  Rule 17Ad-15 if Notes are to be delivered, other  than to and in the name of the registered holder.   NOTICE:  The signature on the assignment must correspond with the name as written upon the  face of the Note in every particular without alteration or enlargement or any change whatever.                                            2