convertiblenotesindentur






                                                  EXHIBIT 4.1                    TRICIDA, INC.                                               AND                               U.S. BANK NATIONAL ASSOCIATION,                                           AS TRUSTEE                                            INDENTURE                                                             DATED AS OF MAY 22, 2020                                                    3.50% CONVERTIBLE SENIOR NOTES DUE 2027                   





 






                            TABLE OF CONTENTS                                                                                                                   Page    ARTICLE 1   DEFINITIONS ....................................................................................................... 1        1.01  Definitions.............................................................................................................. 1        1.02  References to Interest ........................................................................................... 12  ARTICLE 2   ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND              EXCHANGE OF NOTES.................................................................................... 12        2.01  Designation and Amount ..................................................................................... 12        2.02  Form of Notes ...................................................................................................... 12        2.03  Date and Denomination of Notes; Payments of Interest and Defaulted              Amounts ............................................................................................................... 13        2.04  Execution, Authentication and Delivery of Notes ............................................... 15        2.05  Exchange and Registration of Transfer of Notes; Restrictions on Transfer;              Depositary ............................................................................................................ 15        2.06  Mutilated, Destroyed, Lost or Stolen Notes......................................................... 21        2.07  Temporary Notes ................................................................................................. 22        2.08  Cancellation of Notes Paid, Converted, Etc......................................................... 23        2.09  CUSIP Numbers................................................................................................... 23        2.10  Additional Notes; Repurchases ............................................................................ 23  ARTICLE 3   SATISFACTION AND DISCHARGE................................................................ 24        3.01  Satisfaction and Discharge ................................................................................... 24  ARTICLE 4   PARTICULAR COVENANTS OF THE COMPANY ....................................... 24        4.01  Payment of Principal and Interest ........................................................................ 24        4.02  Maintenance of Office or Agency ........................................................................ 24        4.03  Appointments to Fill Vacancies in Trustee’s Office ............................................ 25        4.04  Provisions as to Paying Agent ............................................................................. 25        4.05  Existence .............................................................................................................. 26        4.06  Rule 144A Information Requirement and Annual Reports ................................. 26        4.07  Stay, Extension and Usury Laws ......................................................................... 28        4.08  Compliance Certificate; Statements as to Defaults .............................................. 28        4.09  Further Instruments and Acts ............................................................................... 28  ARTICLE 5   LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE              TRUSTEE ............................................................................................................ 29                                         -i-          





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page          5.01  Lists of Holders .................................................................................................... 29        5.02  Preservation and Disclosure of Lists.................................................................... 29  ARTICLE 6   DEFAULTS AND REMEDIES .......................................................................... 29        6.01  Events of Default ................................................................................................. 29        6.02  Acceleration; Rescission and Annulment ............................................................ 30        6.03  Additional Interest ............................................................................................... 31        6.04  Payments of Notes on Default; Suit Therefor ...................................................... 32        6.05  Application of Monies Collected by Trustee ....................................................... 34        6.06  Proceedings by Holders ....................................................................................... 35        6.07  Proceedings by Trustee ........................................................................................ 36        6.08  Remedies Cumulative and Continuing ................................................................ 36        6.09  Direction of Proceedings and Waiver of Defaults by Majority of Holders ......... 36        6.10  Notice of Defaults ................................................................................................ 37        6.11  Undertaking to Pay Costs..................................................................................... 37  ARTICLE 7   CONCERNING THE TRUSTEE ........................................................................ 37        7.01  Duties and Responsibilities of Trustee ................................................................ 37        7.02  Reliance on Documents, Opinions, Etc ............................................................... 39        7.03  No Responsibility for Recitals, Etc ...................................................................... 40        7.04  Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or              Note Registrar May Own Notes ........................................................................... 40        7.05  Monies to Be Held in Trust .................................................................................. 40        7.06  Compensation and Expenses of Trustee .............................................................. 40        7.07  Officers’ Certificate and Opinion of Counsel as Evidence .................................. 41        7.08  Eligibility of Trustee ............................................................................................ 41        7.09  Resignation or Removal of Trustee ..................................................................... 42        7.10  Acceptance by Successor Trustee ........................................................................ 43        7.11  Succession by Merger, Etc ................................................................................... 43        7.12  Trustee’s Application for Instructions from the Company .................................. 44  ARTICLE 8   CONCERNING THE HOLDERS ....................................................................... 44        8.01  Action by Holders ................................................................................................ 44                                        -ii-          





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page          8.02  Proof of Execution by Holders ............................................................................ 44        8.03  Who Are Deemed Absolute Owners .................................................................... 45        8.04  Company-Owned Notes Disregarded .................................................................. 45        8.05  Revocation of Consents; Future Holders Bound ................................................. 45  ARTICLE 9   HOLDERS’ MEETINGS..................................................................................... 46        9.01  Purpose of Meetings ............................................................................................ 46        9.02  Call of Meetings by Trustee ................................................................................. 46        9.03  Call of Meetings by Company or Holders ........................................................... 46        9.04  Qualifications for Voting ..................................................................................... 47        9.05  Regulations .......................................................................................................... 47        9.06  Voting .................................................................................................................. 47        9.07  No Delay of Rights by Meeting ........................................................................... 48  ARTICLE 10  SUPPLEMENTAL INDENTURES .................................................................... 48        10.01 Supplemental Indentures Without Consent of Holders ....................................... 48        10.02 Supplemental Indentures with Consent of Holders ............................................. 49        10.03 Effect of Supplemental Indentures....................................................................... 50        10.04 Notation on Notes ................................................................................................ 50        10.05 Evidence of Compliance of Supplemental Indenture to Be Furnished              Trustee.................................................................................................................. 50  ARTICLE 11  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE.......... 51        11.01 Company May Consolidate, Etc .......................................................................... 51        11.02 Successor Corporation to Be Substituted ............................................................. 51        11.03 Opinion of Counsel to Be Given to Trustee ......................................................... 52  ARTICLE 12  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS              AND DIRECTORS .............................................................................................. 52        12.01 Indenture and Notes Solely Corporate Obligations ............................................. 52  ARTICLE 13  [INTENTIONALLY OMITTED] ........................................................................ 52  ARTICLE 14  CONVERSION OF NOTES ................................................................................ 52        14.01 Conversion Privilege ............................................................................................ 52        14.02 Conversion Procedure; Settlement Upon Conversion. ........................................ 55                                        -iii-         





 






                            TABLE OF CONTENTS                                    (continued)                                                                          Page          14.03 Increased Conversion Rate Applicable to Certain Notes Surrendered in              Connection with Make-Whole Fundamental Changes or Notices of              Redemption .......................................................................................................... 59        14.04 Adjustment of Conversion Rate ........................................................................... 62        14.05 Adjustments of Prices .......................................................................................... 72        14.06 Shares to Be Fully Paid ........................................................................................ 72        14.07 Effect of Recapitalizations, Reclassifications and Changes of the Common              Stock. ................................................................................................................... 72        14.08 Certain Covenants ................................................................................................ 74        14.09 Responsibility of Trustee ..................................................................................... 75        14.10 Notice to Holders Prior to Certain Actions .......................................................... 75        14.11 Stockholder Rights Plans ..................................................................................... 76  ARTICLE 15  REPURCHASE OF NOTES AT OPTION OF HOLDERS ................................ 76        15.01 [Intentionally Omitted]. ....................................................................................... 76        15.02 Repurchase at Option of Holders Upon a Fundamental Change ......................... 76        15.03 Withdrawal of Fundamental Change Repurchase Notice .................................... 79        15.04 Deposit of Fundamental Change Repurchase Price ............................................. 79        15.05 Covenant to Comply with Applicable Laws Upon Repurchase of Notes ............ 80  ARTICLE 16  OPTIONAL REDEMPTION ............................................................................... 80        16.01 Optional Redemption ........................................................................................... 80        16.02 Notice of Optional Redemption; Selection of Notes ........................................... 80        16.03 Payment of Notes Called for Redemption ........................................................... 82        16.04 Restrictions on Redemption ................................................................................. 82  ARTICLE 17  MISCELLANEOUS PROVISIONS .................................................................... 82        17.01 Provisions Binding on Company’s Successors .................................................... 82        17.02 Official Acts by Successor Corporation .............................................................. 82        17.03 Addresses for Notices, Etc ................................................................................... 83        17.04 Governing Law; Jurisdiction................................................................................ 83        17.05 Evidence of Compliance with Conditions Precedent; Certificates and              Opinions of Counsel to Trustee ........................................................................... 84        17.06 Legal Holidays ..................................................................................................... 84                                        -iv-          





 






                      TABLE OF CONTENTS                              (continued)                                                                    Page                 17.07 No Security Interest Created ................................................................................ 84  17.08 Benefits of Indenture............................................................................................ 85  17.09 Table of Contents, Headings, Etc ........................................................................ 85  17.10 Authenticating Agent ........................................................................................... 85  17.11 Execution in Counterparts.................................................................................... 86  17.12 Severability .......................................................................................................... 86  17.13 Waiver of Jury Trial ............................................................................................. 86  17.14 Force Majeure ...................................................................................................... 86  17.15 Calculations.......................................................................................................... 86  17.16 USA PATRIOT Act ............................................................................................. 87                                   -v-                                     





 






                                                                                       INDENTURE dated as of May 22, 2020 between TRICIDA, 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).                                   WITNESSETH:         WHEREAS, for its lawful corporate purposes, the Company has duly authorized the  issuance of its 3.50% Convertible Senior Notes due 2027 (the “Notes”), initially in an aggregate  principal amount not to exceed $200,000,000, and in order to provide the terms and conditions  upon which the Notes are to be authenticated, issued and delivered, the Company has duly  authorized the execution and delivery of this Indenture; and         WHEREAS, the Form of Note, the certificate of authentication to be borne by each  Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice  and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the  forms 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         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(e),  Section 4.06(f) and Section 6.03, as applicable.         “Additional Shares” shall have the meaning specified in Section 14.03(b).                                         1    





 






         “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  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.                                         2    





 






         “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 two Officers.          “Conversion Agent” shall have the meaning specified in Section 4.02.         “Conversion Date” shall have the meaning specified in Section 14.02(c).         “Conversion Obligation” shall have the meaning specified in Section 14.01(a).         “Conversion Price” means as of any 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 office of the Trustee at which at any time its  corporate trust business related to this Indenture shall be administered, which office at the date  hereof is located at 425 Walnut Street, Cincinnati, OH 45202, Attention: Daniel Boyers, Vice  President and Trust Officer, or such other address as the Trustee may designate from time to time  by notice to the Holders and the Company, or the principal corporate trust office of any  successor trustee (or such other address as such successor trustee may designate from time to  time by notice to the Holders and the Company).         “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 Observation Period, one-fortieth (1/40th) 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  Observation Period, shall consist of:               (a)   cash in an amount equal to the lesser of (i) the Daily Measurement Value  and (ii) the Daily Conversion Value on such Trading Day; and               (b)   if the Daily Conversion Value on such Trading Day exceeds the Daily  Measurement Value, a number of shares of Common Stock equal to (i) the difference between  the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP  for such Trading Day.                                          3    





 






         “Daily VWAP” means, for each of the 40 consecutive Trading Days during the relevant  Observation Period, the per share volume-weighted average price as displayed under the heading  “Bloomberg VWAP” on Bloomberg page “TCDA <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.         “Depositary” means, with respect to each Global Note, the Person specified in Section  2.05(d) as the Depositary with respect to such Notes, until a successor shall have been appointed  and become such pursuant to the applicable provisions of this Indenture, and thereafter,  “Depositary” shall mean or include such successor.         “Distributed Property” shall have the meaning specified in Section 14.04(c).         “Effective Date” shall have the meaning specified in Section 14.03(d), 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.         “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 Act” means the Securities Exchange Act of 1934, as amended, and the rules  and regulations promulgated thereunder.         “Form of Assignment and Transfer” means the “Form of Assignment and Transfer”  attached as Attachment 3 to the Form of Note.         “Form of Fundamental Change Repurchase Notice” means the “Form of  Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of Note.         “Form of Note” means the “Form of Note” attached hereto as Exhibit A.                                         4    





 






         “Form of Notice of Conversion” means the “Form of Notice of Conversion” attached  as Attachment 1 to the Form of Note.         “Fundamental Change” shall be deemed to have occurred at the time after the Notes are  originally issued if any of the following occurs:               (a)   a “person” or “group” within the meaning of Section 13(d) of the  Exchange Act, other than (x) the Company, (y) its Wholly Owned Subsidiaries, or (z) any  employee benefit plan of the Company or of its Wholly Owned Subsidiaries has become the  direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the  Company’s Common Equity representing more than 50% of the voting power of all classes of  the Company’s Common Equity or of more than 50% of the outstanding shares of the Common  Stock; or               (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; (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 direct or indirect Wholly Owned  Subsidiaries; provided, however, that a transaction described in clause (A) or (B) in which the  holders of all classes of the Company’s Common Equity immediately prior to such transaction  own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or  surviving corporation or transferee or the 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); or               (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 Nasdaq Global Market (or any of their respective successors);   provided, however, that a transaction or transactions described in clause (a) or clause (b) above  shall not constitute a Fundamental Change, if at least 90% of the consideration received or to be  received by holders of the Common Stock of the Company, excluding cash payments for  fractional shares, 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 Nasdaq Global Market (or any of their respective successors) or  will be so listed or quoted when issued or exchanged in connection with such transaction or  transactions and as a result of such transaction or transactions the Notes become convertible into  such consideration, excluding cash payments for fractional shares (subject to the provisions of  Section 14.02(a)). If any transaction in which the Common Stock is replaced by the securities of  another entity occurs, following completion of any related Make-Whole Fundamental Change                                         5    





 






   Period (or, in the case of a transaction that would have been a Fundamental Change or a Make- Whole Fundamental Change but for the proviso immediately following clause (d) of this  definition, following the effective date of such transaction) references to the Company in this  definition shall instead be references to such other entity.         “Fundamental Change Company Notice” shall have the meaning specified in Section  15.02(d).         “Fundamental Change Repurchase Date” shall have the meaning specified in Section  15.02(b).         “Fundamental Change Repurchase Notice” shall have the meaning specified in Section  15.02(c)(i).         “Fundamental Change Repurchase Price” shall have the meaning specified in Section  15.02(b).         “Global Note” shall have the meaning specified in Section 2.05(c).         “Holder,” as applied to any Note, or other similar terms (but excluding the term  “beneficial holder”), means any Person in whose name at the time a particular Note is registered  on the Note Register.         “Indemnified Parties” shall have the meaning specified in Section 7.06.         “Indenture” means this instrument as originally executed or, if amended or  supplemented as herein provided, as so amended or supplemented.         “Initial Purchasers” means the initial purchasers set forth on Schedule I to the Purchase  Agreement.         “Interest Payment Date” means each May 15 and November 15 of each year, beginning  on November 15, 2020.         “Issue Date” means May 22, 2020.         “Last Date of Original Issuance” means (a) with respect to any Notes issued pursuant to  the Purchase Agreement, and any Notes issued in exchange therefor or in substitution thereof,  the later of (i) the Issue Date; and (ii) the last date any Notes are originally issued pursuant to the  exercise of the Initial Purchasers’ option to purchase additional Notes; and (b) with respect to  any additional Notes issued as described under Section 2.10 and any Notes issued in exchange  therefor or in substitution thereof, either (i) the later of (x) the date such Notes are originally  issued and (y) the last date any Notes are originally issued as part of the same offering pursuant  to the exercise of an option granted to the initial purchaser(s) of such Notes to purchase  additional Notes; or (ii) such other date as is specified in an Officer’s Certificate delivered to the  Trustee before the original issuance of such Notes.                                           6    





 






         “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.         “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(b).         “Market Disruption Event” means, for the purposes of determining amounts due upon  conversion (a) a failure by the principal 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 May 15, 2027.         “Measurement Period” shall have the meaning specified in Section 14.01(b)(i).         “Note” or “Notes” shall have the meaning specified in the first paragraph of the recitals  of this Indenture.         “Note Register” shall have the meaning specified in Section 2.05(b).         “Note Registrar” shall have the meaning specified in Section 2.05(b).         “Notice of Conversion” shall have the meaning specified in Section 14.02(b).         “Notice of Redemption” shall have the meaning specified in Section 16.02(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 February 15, 2027, the 40                                         7    





 






   consecutive Trading Day period beginning on, and including, the second Trading Day  immediately succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs on or  after the date of the Company’s issuance of a Notice of Redemption with respect to the Notes  pursuant to Section 16.02 and prior to the relevant Redemption Date, 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 February 15, 2027, 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 19,  2020, as supplemented by the related pricing term sheet dated May 19, 2020 relating to the  offering and sale of the Notes.         “Officer” means, for purposes of this document, with respect to the Company, the  President and Chief Executive Officer, the Chief Financial Officer, the General Counsel, and the  Chief Accounting Officer.         “Officers’ Certificate,” when used with respect to the Company, means a certificate that  is delivered to the Trustee and that is signed by (a) two Officers of the Company or (b) one  Officer of the Company and one of any Assistant Treasurer, any Assistant Secretary or the  Controller 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. One of the Officers  giving an Officers’ 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, which opinion may contain customary exceptions, assumptions and qualifications as to  the matters set forth therein, that is delivered to the Trustee. Each such opinion shall include the  statements provided for in Section 17.05 if and to the extent required by the provisions of such  Section 17.05.         “Optional Redemption” shall have the meaning specified in Section 16.01.         “outstanding,” when used with reference to Notes, shall, subject to the provisions of  Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the  Trustee under this Indenture, except:               (a)   Notes theretofore canceled by the Trustee or accepted by the Trustee for  cancellation;               (b)   Notes, or portions thereof, that have become due and payable and in  respect of which monies in the necessary amount shall have been deposited in trust with the  Trustee or with any Paying Agent (other than the Company) or shall have been set aside and  segregated in trust by the Company (if the Company shall act as its own Paying Agent);                                         8    





 






               (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 integral multiples thereof.         “Physical Settlement” shall have the meaning specified in Section 14.02(a).         “Predecessor Note” of any particular Note means every previous Note evidencing all or  a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this  definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for  a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the  mutilated, lost, destroyed or stolen Note that it replaces.         “Purchase Agreement” means that certain Purchase Agreement, dated as of May 19,  2020, among the Company and Goldman Sachs & Co. LLC, as representative of the Initial  Purchasers.         “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  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(b).         “Redemption Price” means, for any Notes to be redeemed pursuant to Section 16.01,  100% of the 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                                         9    





 






   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 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, means the May 1 or  November 1 (whether or not such day is a Business Day) immediately preceding the applicable  May 15 or November 15 Interest Payment Date, respectively.         “Resale Restriction Termination Date” shall have the meaning specified in Section  2.05(d).         “Responsible Officer” means, when used with respect to the Trustee, any officer within  the Corporate Trust Office of the Trustee, including any vice president, assistant vice president,  assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who  customarily performs functions similar to those performed by the Persons who at the time shall  be such officers, respectively, or to whom any corporate trust matter is referred because of such  person’s knowledge of and familiarity with the particular subject and, in each case, who shall  have direct responsibility for the administration of this Indenture.         “Restricted Securities” shall have the meaning specified in Section 2.05(d).         “Rule 144” means Rule 144 as promulgated under the Securities Act.         “Rule 144A” means Rule 144A as promulgated under the Securities Act.         “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the  principal U.S. national or regional securities exchange or market on which the Common Stock is  listed or admitted for trading. If the Common Stock is not so listed or admitted for trading,  “Scheduled Trading Day” means a Business Day.         “Securities Act” means the Securities Act of 1933, as amended, and the rules and  regulations promulgated thereunder.         “Settlement Amount” shall have the meaning specified in Section 14.02(a)(iv).         “Settlement Method” means, with respect to any conversion of Notes, Physical  Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been  elected) by the Company.         “Settlement Notice” shall have the meaning specified in Section 14.02(a)(iii).         “Share Exchange Event” shall have the meaning specified in Section 14.07(a).         “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 under the Exchange Act.                                          10    





 






         “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.         “Spin-Off” shall have the meaning specified in Section 14.04(c).         “Stock Price” shall have the meaning specified in Section 14.03(d).         “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 a day on which (i) trading in the Common Stock (or other security  for which a closing sale price must be determined) generally occurs on The Nasdaq Global  Select Market or, if the Common Stock (or such other security) is not then listed on The Nasdaq  Global Select Market, on the principal other U.S. national or regional securities exchange on  which the Common Stock (or such other security) is then listed or, if the Common Stock (or such  other security) is not then listed on a U.S. national or regional securities exchange, on the  principal other market on which the Common Stock (or such other security) is then traded and  (ii) a Last Reported Sale Price for the Common Stock (or closing sale price for such other  security) is available on such securities exchange or market; provided that if the Common Stock  (or such other security) is not so listed or traded, “Trading Day” means a Business Day; and  provided further that, for purposes of determining amounts due upon conversion only, “Trading  Day” means a day on which (x) there is no Market Disruption Event and (y) trading in the  Common Stock generally occurs on The Nasdaq Global Select Market or, if the Common Stock  is not then listed on The Nasdaq Global Select Market, on the principal other U.S. national or  regional securities exchange on which the Common Stock is then listed or, if the Common Stock  is not then listed on a U.S. national or regional securities exchange, on the principal other market  on which the Common Stock is then listed or admitted for trading, except that if the Common  Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.         “Trading Price” of the Notes on any date of determination means the average of the  secondary market bid quotations obtained by the Bid Solicitation Agent for $5,000,000 principal  amount of Notes at approximately 3:30 p.m., New York City time, on such determination date  from three independent nationally recognized securities dealers the Company selects for this  purpose (and provides the Bid Solicitation Agent the names and contact information for such  dealers); 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                                         11    





 






   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(d).         “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 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%”.         1.02  References to Interest. Unless the context otherwise requires, any reference to  interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional  Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of  Section 4.06(e), Section 4.06(f) 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         2.01  Designation and Amount. The Notes shall be designated as the “3.50%  Convertible Senior Notes due 2027.” The aggregate principal amount of Notes that may be  authenticated and delivered under this Indenture is initially limited to $200,000,000, subject to  Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or  in exchange for, or in lieu of other Notes to the extent expressly permitted hereunder.         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                                         12    





 






   execution and delivery of this Indenture, expressly agree to such terms and provisions and to be  bound thereby.         Any Global Note may be endorsed with or have incorporated in the text thereof such  legends or recitals or changes not inconsistent with the provisions of this Indenture as may be  required by the Custodian or the Depositary, or as may be required to comply with any  applicable law or any regulation thereunder or with the rules and regulations of any securities  exchange or automated quotation system upon which the Notes may be listed or traded or  designated for issuance or to conform with any usage with respect thereto, or to indicate any  special limitations or restrictions to which any particular Notes are subject.         Any of the Notes may have such letters, numbers or other marks of identification and  such notations, legends or endorsements as the Officer executing the same may approve  (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with  the provisions of this Indenture, or as may be required to comply with any law or with any rule  or regulation made pursuant thereto or with any rule or regulation of any securities exchange or  automated quotation system on which the Notes may be listed or designated for issuance, or to  conform to usage or to indicate any special limitations or restrictions to which any particular  Notes are subject.         Each Global Note shall represent such principal amount of the outstanding Notes as shall  be specified therein and shall provide that it shall represent the aggregate principal amount of  outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of  outstanding Notes represented thereby may from time to time be increased or reduced to reflect  redemptions, repurchases, cancellations, conversions, transfers or exchanges permitted hereby.  Any endorsement of a Global Note to reflect the amount of any increase or decrease in the  amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian,  at the direction of the Trustee, in such manner and upon instructions given by the Holder of such  Notes in accordance with this Indenture. Payment of principal (including the Redemption Price  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.         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 integral multiples thereof. Each Note shall be dated the date of  its authentication and shall bear interest from the date specified on the face of such Note.  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 maintained by the Company for such purposes in the                                         13    





 






   Borough of Manhattan, The City of New York, 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 interest  (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal  amount of $10,000,000 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 $10,000,000, either by check mailed to each Holder or, upon  application by such a Holder to the Note Registrar not later than the relevant Regular Record  Date, by wire transfer in immediately available funds to that Holder’s account within the United  States, if such Holder has provided the Company, the Trustee or the Paying Agent (if other than  the Trustee) with the requisite information necessary to make such wire transfer, which  application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the  contrary or (ii) on any Global Note by wire transfer of immediately available funds to the  account of the Depositary or its nominee.               (c)   Any Defaulted Amounts shall forthwith cease to be payable to the Holder  on the relevant payment date but shall accrue interest per annum at the rate borne by the Notes,  subject to the enforceability thereof under applicable law, from, and including, such relevant  payment date, and such Defaulted Amounts together with such interest thereon shall be paid by  the Company, at its election in each case, as provided in clause (i) or (ii) below:                     (i)   The Company may elect to make payment of any Defaulted  Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes) are  registered at the close of business on a special record date for the payment of such Defaulted  Amounts, which shall be fixed in the following manner. The Company shall notify the Trustee in  writing of the amount of the Defaulted Amounts proposed to be paid on each Note and the date  of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of  such notice, unless the Trustee shall consent to an earlier date), and at the same time the  Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be  paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee  for such deposit on or prior to the date of the proposed payment, such money when deposited to  be held in trust for the benefit of the Persons entitled to such Defaulted Amounts as in this clause  provided. Thereupon the Company shall fix a special record date for the payment of such  Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the  date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the  notice of the proposed payment. The Company shall promptly notify the Trustee of such special  record date at least five (5) Business Days before such notice is to be sent to the Holders, and the  Trustee, in the name and at the expense of the Company, shall cause notice of the proposed  payment of such Defaulted Amounts and the special record date therefor to be delivered to each  Holder not less than 10 days prior to such special record date. Notice of the proposed payment of  such Defaulted Amounts and the special record date therefor having been so delivered, such  Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective  Predecessor Notes) are registered at the close of business on such special record date and shall no  longer be payable pursuant to the following clause (ii) of this Section 2.03(c).                     (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                                         14    





 






   automated quotation system on which the Notes may be listed or designated for issuance, and  upon such notice as may be required by such exchange or automated quotation system, if, after  notice given by the Company to the Trustee of the proposed payment pursuant to this clause,  such manner of payment shall be deemed practicable by the Trustee.         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 by one of its  President and Chief Executive Officer, Chief Financial Officer, General Counsel or Chief  Accounting Officer.         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.         Only such Notes as shall bear thereon a certificate of authentication substantially in the  form set forth on the Form of Note attached as Exhibit A hereto, executed manually by an  authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided  by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for  any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note  executed by the Company shall be conclusive evidence that the Note so authenticated has been  duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this  Indenture.         In case any Officer of the Company who shall have signed any of the Notes shall cease to  be such Officer before the Notes so signed shall have been authenticated and delivered by the  Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and  delivered or disposed of as though the person who signed such Notes had not ceased to be such  Officer of the Company; and any Note may be signed on behalf of the Company by such persons  as, at the actual date of the execution of such Note, shall be the Officers of the Company,  although at the date of the execution of this Indenture any such person was not such an Officer.         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                                         15    





 






   and of a like aggregate principal amount and bearing such restrictive legends as may be required  by this Indenture.         Subject to Section 2.05(d), 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 Note Registrar and duly executed, by the Holder thereof or its  attorney-in-fact duly authorized in writing.         No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any  co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but  the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or  similar issue or transfer tax required in connection therewith as a result of the name of the Holder  of new Notes issued upon such exchange or registration of transfer being different from the name  of the Holder of the old Notes surrendered for exchange or registration of transfer.         None of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be  required to exchange 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(d) 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(d) to bear the  legend set forth in this Section 2.05(d) (together with any Common Stock issued upon  conversion of the Notes that is required to bear the legend set forth in Section 2.05(e),                                         16    





 






   collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth  in this Section 2.05(d) (including the legend set forth below), unless such restrictions on transfer  shall be eliminated or otherwise waived by written consent of the Company, and the Holder of  each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all  such restrictions on transfer. As used in this Section 2.05(d) and Section 2.05(e), 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 shorter 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(e), 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  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 TRICIDA, INC. (THE  “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE  TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE  DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE  DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144  UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y)  SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,  EXCEPT:                           (A)   TO THE COMPANY OR ANY SUBSIDIARY  THEREOF, OR                           (B)   PURSUANT TO A REGISTRATION STATEMENT  WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR                                         17    





 






                           (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 RESERVES THE RIGHT TO REQUIRE THE  DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS  MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE  PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES  ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE  AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT.         No transfer of any Note prior to the Resale Restriction Termination Date will be  registered by the Note Registrar unless the applicable box on the Form of Assignment and  Transfer has been checked.         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(d) 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 in accordance with the applicable  procedures of the Depositary; and any new Global Note so exchanged therefor shall not bear the  restrictive legend specified in this Section 2.05(d) and shall not be assigned a restricted CUSIP  number. The Company shall promptly notify the Trustee in writing upon the occurrence of the  Resale Restriction Termination Date and promptly after a registration statement, if any, with  respect to the Notes or any Common Stock issued upon conversion of the Notes has been  declared effective under the Securities Act.         Notwithstanding any other provisions of this Indenture (other than the provisions set forth  in this Section 2.05(d)), 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                                          18    





 






   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  execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the  authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause (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(d) shall be registered in such names and in such authorized denominations as the  Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the  case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall  instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such Physical  Notes to the Persons in whose names such Physical Notes are so registered.         At such time as all interests in a Global Note have been converted, canceled, repurchased,  redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee  in accordance with standing procedures and existing instructions between the Depositary and the  Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged  for Physical Notes, converted, canceled, repurchased, redeemed or transferred to a transferee  who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of  such Global Note, the principal amount of such Global Note shall, in accordance with the  standing procedures and instructions existing between the Depositary and the Custodian, be  appropriately reduced or increased, as the case may be, and an endorsement shall be made on  such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such  reduction or increase.         None of the Company, the Trustee, the Paying Agent, the Conversion Agent 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                                          19    





 






   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 a Note shall bear a legend in  substantially the following form (unless such Common Stock has been transferred pursuant to a  registration statement that has become or been declared effective under the Securities Act and  that continues to be effective at the time of such transfer, or pursuant to the exemption from  registration provided by Rule 144 or any similar provision then in force under the Securities Act,  or such Common Stock has been issued upon conversion of a Note that has 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 any transfer agent for  the Common Stock):         THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT  OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED,  SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH  THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL  INTEREST HEREIN, THE ACQUIRER:                     (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 TRICIDA, 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 SHORTER PERIOD OF TIME AS PERMITTED BY  RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO  AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW,  EXCEPT:                           (A)   TO THE COMPANY OR ANY SUBSIDIARY  THEREOF, OR                           (B)   PURSUANT TO A REGISTRATION STATEMENT  WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR                           (C)   TO A QUALIFIED INSTITUTIONAL BUYER IN  COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR                           (D)   PURSUANT TO AN EXEMPTION FROM  REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY                                         20    





 






   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  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(e).               (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)   Notwithstanding anything contained herein to the contrary, neither the  Trustee nor the Note Registrar shall be responsible for ascertaining whether any transfer  complies with the registration provisions of or exemptions from the Securities Act, applicable  state securities laws or other applicable federal or state laws.         2.06  Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become  mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon  receipt of a Company Order the Trustee or an authenticating agent appointed by the Trustee shall  authenticate and deliver, a new Note, bearing a registration number not contemporaneously  outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution  for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall  furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such  security or indemnity as may be required by them to save each of them harmless from any loss,  liability, cost or expense caused by or connected with such substitution, and, in every case of                                         21    





 






   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 a Company Order and such security or indemnity as the  Trustee, the Company and, if applicable, such authenticating agent may require. No service  charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar  or the Paying Agent upon the issuance of any substitute Note, but the Company may require a  Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax  required in connection therewith as a result of the name of the Holder of the new substitute Note  being different from the name of the Holder of the old Note that became mutilated or was  destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been  surrendered for required repurchase or is about to be converted in accordance with Article 14  shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion,  instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the  conversion of the same (without surrender thereof except in the case of a mutilated Note), as the  case may be, if the applicant for such payment or conversion shall furnish to the Company, to the  Trustee and, if applicable, to such authenticating agent such security or indemnity as may be  required by them to save each of them harmless for any loss, liability, cost or expense caused by  or connected with such substitution, and, in every case of destruction, loss or theft, evidence  satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion  Agent evidence of their satisfaction of the destruction, loss or theft of such Note and of the  ownership thereof.         Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of  the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual  obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at  any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set  forth in) this Indenture equally and proportionately with any and all other Notes duly issued  hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express  condition that the foregoing provisions are exclusive with respect to the replacement, payment,  redemption, conversion or repurchase of mutilated, destroyed, lost or stolen Notes and shall  preclude any and all other rights or remedies notwithstanding any law or statute existing or  hereafter enacted to the contrary with respect to the replacement, payment, redemption,  conversion or repurchase of negotiable instruments or other securities without their surrender.         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                                         22    





 






   any or all temporary Notes (other than any Global Note) may be surrendered in exchange  therefor, at each office or agency maintained by the Company pursuant to Section 4.02 and the  Trustee or such authenticating agent upon receipt of a Company Order shall authenticate and  deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical  Notes. Such exchange shall be made by the Company at its own expense and without any charge  therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same  benefits and subject to the same limitations under this Indenture as Physical Notes authenticated  and delivered hereunder.         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 other than the Trustee (including any of the  Company’s agents, Subsidiaries or Affiliates), to be surrendered to the Trustee for cancellation.  All Notes delivered to the Trustee shall be canceled 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, at the Company’s written request in a Company Order.         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.         2.10  Additional Notes; Repurchases. The Company may, without the consent of 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  restrictions on transfer imposed by federal securities laws) in an unlimited aggregate principal  amount; provided that if any such additional Notes are not fungible with the Notes initially  issued hereunder for U.S. federal income tax or federal securities law purposes, such additional  Notes shall have one or more separate CUSIP numbers. Prior to the issuance of any such  additional Notes, the Company shall deliver to the Trustee a Company Order, an Officers’  Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion of Counsel to  cover such matters, in addition to those required by Section 17.05, as the Trustee shall  reasonably request. In addition, the Company may, to the extent permitted by law, and directly or  indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes  in the open market or otherwise, whether by the Company or its Subsidiaries or through a private  or public tender or exchange offer or through counterparties to private agreements, including by  cash-settled swaps or other derivatives. 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 upon receipt of a                                         23    





 






   Company Order, the Trustee and no one else shall cancel all Notes so surrendered and such  Notes shall no longer be considered outstanding under this Indenture upon their repurchase.                                    ARTICLE 3                                                                 SATISFACTION AND DISCHARGE         3.01  Satisfaction and Discharge. This Indenture shall upon request of the Company  contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the expense  of the Company, shall execute proper instruments acknowledging satisfaction and discharge of  this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes  which have been destroyed, lost or stolen and which have been replaced, paid or converted as  provided in Section 2.06) have been delivered to the Trustee for cancellation; or (ii) the  Company has (x) 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, or otherwise (except in the case of conversions), cash or  (y) deposited with the Trustee cash, and/or delivered to Holders cash, shares of Common Stock  or a combination thereof, as applicable, solely to satisfy the Company’s Conversion Obligation,  in each case, 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  Officers’ 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         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.         4.02  Maintenance of Office or Agency. The Company will maintain in the Borough  of Manhattan, The City of New York, 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 or the  office or agency of the Trustee in the Borough of Manhattan, The City of New York.         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                                         24    





 






   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 Borough of Manhattan, The City of New York, 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 Borough of Manhattan, The City of New York, 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.         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.         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 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  applicable) or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the  Company will promptly notify the Trustee of any failure to take such action; provided that if  such deposit is made on the due date, such deposit must be received by the Paying Agent by  11:00 a.m., New York City time, on such date.               (b)   If the Company shall act as its own Paying Agent, it will, on or before  each due date of the principal (including the Redemption Price and the Fundamental Change  Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside,                                         25    





 






   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. The Company or any Affiliate of the Company may act as Paying  Agent (except for the purposes of Article 3). Upon the occurrence of any Event of Default under  Section 6.01(i) or Section 6.01(j), the Trustee shall automatically be the Paying Agent.               (c)   Anything in this Section 4.04 to the contrary notwithstanding, the  Company may, at any time, for the purpose of obtaining a satisfaction and discharge of this  Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or  amounts held in trust by the Company or any Paying Agent hereunder as required by this Section  4.04, such sums or amounts to be held by the Trustee upon the trusts herein contained and upon  such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or  such Paying Agent shall be released from all further liability but only with respect to such sums  or amounts.               (d)   Subject to applicable laws, any money deposited with the Trustee or any  Paying Agent, or any money and shares of Common Stock 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 Officers’ Certificate, or (if then held by the  Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as  an unsecured general creditor, look only to the Company for payment thereof, and all liability of  the Trustee or such Paying Agent with respect to such trust money, and all liability of the  Company as trustee for any trust money and shares of Common Stock, shall thereupon cease.         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.         4.06  Rule 144A Information Requirement and Annual Reports. (a) At any time the  Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long  as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at  such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the  Securities Act, 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 may reasonably request to the extent from time to time required to enable such Holder or                                          26    





 






   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, 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, as  applicable (after giving effect to all applicable grace periods thereunder). Any such document or  report that the Company files with the Commission via the Commission’s EDGAR system shall  be deemed to be filed with the Trustee for purposes of this Section 4.06(c) at the time such  documents are filed via the EDGAR system.               (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 Officers’ 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 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 or the terms of this Indenture or the  Notes), the Company shall pay Additional Interest on the Notes. Such Additional Interest shall  accrue on the Notes at the rate 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) without restrictions pursuant to U.S. securities  laws or the terms of this Indenture or the Notes. As used in this Section 4.06(e), documents or  reports that the Company is required to “file” with the Commission pursuant to Section 13 or  15(d) of the Exchange Act do not include documents or reports that the Company furnishes to  the Commission pursuant to Section 13 or 15(d) of the Exchange Act.               (e)   If, and for so long as, the restrictive legend on the Notes specified in  Section 2.05(d) has not been removed, 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) beginning as of the 380th 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(d), 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                                         27    





 






   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(e)  or Section 4.06(f) 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, subject to the provisions  of the last paragraph of Section 6.03.               (h)   If Additional Interest is payable by the Company pursuant to Section  4.06(e) or Section 4.06(f), the Company shall deliver to the Trustee an Officers’ 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 Officers’ Certificate  setting forth the particulars of such payment.         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.         4.08  Compliance Certificate; Statements as to Defaults. The Company shall deliver  to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with  the fiscal year ending on December 31, 2020) an Officers’ 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 Officers’  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.         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.                                          28    





 






                                    ARTICLE 5                                             LISTS OF HOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE         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 1 and  November 1 in each year beginning with November 1, 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.         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         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;               (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;               (d)   failure by the Company to issue a Fundamental Change Company Notice  in accordance with Section 15.02(d), notice of a Make-Whole Fundamental Change in  accordance with Section 14.03(c) or notice of a specified corporate event in accordance with  Section 14.01(b)(ii) or 14.01(b)(iii), in each case, when due, if such failure continues for three  Business Days;               (e)   failure by the Company to comply with its obligations under Article 11;               (f)   failure by the Company for 60 days after written notice from the Trustee  or the Holders of at least 25% in principal amount of the Notes then outstanding has been                                         29    





 






   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 Significant Subsidiary of the Company  with respect to any mortgage, agreement or other instrument under which there may be  outstanding, or by which there may be secured or evidenced, any indebtedness for money  borrowed in excess of $10,000,000 (or its foreign currency equivalent) in the aggregate of the  Company and/or any such Significant Subsidiary, whether such indebtedness now exists or shall  hereafter be created (i) resulting in such indebtedness becoming or being declared due and  payable without such indebtedness having been discharged or the acceleration of payment of  such indebtedness having been cured, rescinded, waived or annulled within 30 days after written  notice of such acceleration to the Company by the Trustee or to the Company and the Trustee by  Holders of at least 25% in aggregate principal amount of the Notes then outstanding or (ii)  constituting a failure to pay the principal or interest of any such indebtedness when due and  payable (after any applicable grace period provided in the agreement governing such  indebtedness) at its stated maturity, upon required repurchase, upon declaration of acceleration or  otherwise;               (h)   a final judgment or judgments for the payment of $10,000,000 (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 90 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;               (i)   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               (j)   an involuntary case or other proceeding shall be commenced against the  Company or any Significant Subsidiary seeking liquidation, reorganization or other relief with  respect to the Company or such Significant Subsidiary or its debts under any bankruptcy,  insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,  receiver, liquidator, custodian or other similar official of the Company or such Significant  Subsidiary or any substantial part of its property, and such involuntary case or other proceeding  shall remain undismissed and unstayed for a period of 60 consecutive days.         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                                         30    





 






   governmental body), then, and in each and every such case (other than an Event of Default  specified in Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its  Significant Subsidiaries), 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 (and the Trustee, at the written  request of such Holders, shall) declare 100% of the principal of, and accrued and unpaid interest  on, all the Notes to be due and payable immediately, and upon any such declaration the same  shall become and shall automatically be immediately due and payable, anything contained in this  Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in  Section 6.01(i) or Section 6.01(j) with respect to the Company or any of its Significant  Subsidiaries 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.         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 to the extent that payment of such interest is  enforceable under applicable law, 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, 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.         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(c)  shall 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 180-day period on which such Event of                                         31    





 






   Default is continuing beginning on, and including, the date on which such an Event of Default  first occurs and (ii) 0.50% per annum of the principal amount of the Notes outstanding for each  day during the period from, and including, the 181st day after the occurrence of such Event of  Default to, but excluding, the 365th day after the occurrence of such Event of Default, during  which such Event of Default is continuing, subject to the second immediately succeeding  paragraph. No Additional Interest shall accrue on and after such 365th day in relation to such  Event of Default pursuant to this Section 6.03. Additional Interest payable pursuant to this  Section 6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to  Section 4.06(e) or Section 4.06(f), subject to the provisions of the last paragraph of Section 6.03.  If the Company so elects, such Additional Interest shall be payable in the same manner and on  the same dates as the stated interest payable on the Notes. On the 365th day after such Event of  Default (if the Event of Default relating to the Company’s failure to file is not cured or waived  prior to such day), the Notes shall 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(c). 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 364 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 in writing  of such election prior to the beginning of such 364-day period (which, for the avoidance of  doubt, shall not commence until the notice described in Section 6.01(f) has been given, and the  related 60-day period described in such Section 6.01(f) has passed). Upon the failure to timely  give such notice, the Notes shall be immediately subject to acceleration as provided in Section  6.02.         In no event shall Additional Interest payable at the Company’s election as the remedy for  an Event of Default relating to the Company’s failure to comply with its obligations as set forth  under Section 4.06(b) pursuant to this Section 6.03, together with any Additional Interest that  may accrue as a result of the Company’s failure to timely file any document or report that the  Company is required to file with the Commission pursuant to Section 13 or 15(d) of the  Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and  other than reports on Form 8-K), accrue at a rate in excess of 0.50% per annum pursuant to this  Indenture, regardless of the number of events or circumstances giving rise to the requirement to  pay such Additional Interest.         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, 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                                         32    





 






   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  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                                         33    





 






   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.         6.05  Application of Monies Collected by Trustee. Any monies collected by the  Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following  order, at the date or dates fixed by the Trustee for the distribution of such monies, upon  presentation of the several Notes, and stamping thereon the payment, if only partially paid, and  upon surrender thereof, if fully paid:         First, to the payment of all amounts due the Trustee under Section 7.06;         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 and the Fundamental Change Repurchase Price and any cash due upon  conversion) and interest without preference or priority of principal over interest, or of interest  over principal or of any installment of interest over any other installment of interest, or of any  Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the  Redemption Price, the Fundamental Change Repurchase Price and any cash due upon  conversion) and accrued and unpaid interest; and                                         34    





 






         Fourth, to the payment of the remainder, if any, to the Company.         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 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  satisfactory to it in its reasonable discretion against any loss, liability or expense to be incurred  therein or thereby;               (d)   the Trustee for 60 days after its receipt of such notice, request and offer of  such security or indemnity, shall have neglected or refused to institute any such action, suit or  proceeding; and               (e)   no direction that, in the opinion of the Trustee, is inconsistent with such  written request shall have been given to the Trustee by the Holders of a majority of the aggregate  principal amount of the Notes then outstanding within such 60-day period pursuant to Section  6.09,   it being understood and intended, and being expressly covenanted by the taker and Holder of  every Note with every other taker and Holder and the Trustee that no one or more Holders shall  have any right in any manner whatever by virtue of or by availing of any provision of this  Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to  obtain priority over or preference to any other such Holder, or to enforce any right under this  Indenture, except in the manner herein provided and for the equal, ratable and common benefit  of all Holders (except as otherwise provided herein). For the protection and enforcement of this  Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be  given either at law or in equity.         Notwithstanding any other provision of this Indenture and any provision of any Note,  each Holder shall have the right to 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.                                         35    





 






         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.         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.         6.09  Direction of Proceedings and Waiver of Defaults by Majority of Holders. The  Holders of a majority of the 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 conflicts with any rule of law  or with this Indenture or that it determines is unduly prejudicial to the rights of any other Holder  (it being understood that the Trustee does not have an affirmative duty to ascertain whether or  not such directions are unduly prejudicial to such Holder) or that would involve the Trustee in  personal liability. 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 and 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                                         36    





 






   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.         6.10  Notice of Defaults. The Trustee shall, within 90 days after it obtains knowledge  of the occurrence and continuance of a Default of which a Responsible Officer has actual  knowledge, deliver to all Holders notice of all Defaults known to a Responsible Officer, unless  such Defaults shall have been cured or waived before the giving of such notice; provided that,  except in the case of a Default in the payment of the 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 a  committee of Responsible Officers of the Trustee in good faith determines that the withholding  of such notice is in the interests of the Holders.         6.11  Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder  of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its  discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or  in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any  party litigant in such suit of an undertaking to pay the costs of such suit and that such court may  in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,  against any party litigant in such suit, having due regard to the merits and good faith of the  claims or defenses made by such party litigant; provided that the provisions of this Section 6.11  (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit  instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in  principal amount of the Notes at the time outstanding determined in accordance with Section  8.04, or to any suit instituted by any Holder for the enforcement of the payment of the 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, if applicable) on or after the  due date expressed or provided for in such Note or to any suit for the enforcement of the right to  convert any Note, or receive the consideration due upon conversion, in accordance with the  provisions of Article 14.                                    ARTICLE 7                                                                   CONCERNING THE TRUSTEE         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  to the Trustee indemnity or security satisfactory to it in its reasonable discretion against any loss,  liability or expense that might be incurred by it in compliance with such request or direction.                                         37    





 






         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 and willful misconduct on the part of  the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the  correctness of the opinions expressed therein, upon any certificates or opinions furnished to the  Trustee and conforming to the requirements of this Indenture; but, in the case of any such  certificates or opinions that by any provisions hereof are specifically required to be furnished to  the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not  they conform to the requirements of this Indenture (but need not confirm or investigate the  accuracy of any mathematical calculations or other facts stated therein);               (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                                         38    





 






   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; and               (h)   in the event that the Trustee is also acting as Custodian, Note Registrar,  Paying Agent, Conversion Agent or transfer agent hereunder, the rights and protections afforded  to the Trustee pursuant to this Article 7, including, without limitation, Section 7.06 hereof, shall  also be afforded to such Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer  agent.         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.         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 believed by it in good faith to be genuine  and to have been signed or presented by the proper party or parties;               (b)   any request, direction, order or demand of the Company mentioned herein  shall be sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect  thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the  Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;               (c)   the Trustee may consult with counsel of its own selection and require an  Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full and  complete authorization and protection in respect of any action taken or omitted by it hereunder in  good faith and in reliance on 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 a co-trustee, 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;                                         39    





 






               (f)   the permissive rights of the Trustee enumerated herein shall not be  construed as duties;               (g)   the Trustee may request that the Company deliver an Officers’ Certificate  setting forth the names of individuals and/or titles of officers authorized at such time to take  specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any  Person authorized to sign an Officers’ Certificate, including any Person specified as so  authorized in any such certificate previously delivered and not superseded;               (h)   in no event shall the Trustee be liable for any consequential loss or  damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has  been advised of the likelihood of such loss or damage and regardless of the form of action; and               (i)   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.         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.         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.         7.05  Monies to Be Held in Trust. All monies 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 held by the Trustee in trust hereunder need not be segregated from other funds except to  the extent required by law. The Trustee shall be under no liability for interest on any money  received by it hereunder except as may be agreed from time to time by the Company and the  Trustee.         7.06  Compensation and Expenses of Trustee. The Company covenants and agrees to  pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation as agreed  in writing between the Company and the Trustee for all services rendered by it hereunder in any  capacity (which shall not be limited by any provision of law in regard to the compensation of a  trustee of an express trust) as mutually agreed to in writing between the Trustee and the  Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable  expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance                                         40    





 






   with any of the provisions of this Indenture in any capacity thereunder (including the reasonable  compensation and the expenses and disbursements of its agents and counsel and of all Persons  not regularly in its employ and including reasonable attorneys’ fees in connection with  enforcement of its rights to indemnity herein) except any such expense, disbursement or advance  as shall have been caused by its gross negligence, willful misconduct or bad faith. 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 officers, directors,  employees, agents and any authenticating agent (collectively, the “Indemnified Parties”) for,  and to hold them harmless against, any loss, claim, damage, liability, fee, cost, tax, action or  expense incurred by such Indemnified Party without gross negligence, willful misconduct or bad  faith, as the case may be, and arising out of or in connection with the acceptance or  administration of this Indenture or in any other capacity hereunder, including third-party claims  and claims involving the Company, and 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 Indemnified Parties and to pay or reimburse the  Trustee for expenses, disbursements and advances shall be secured by a senior claim to which  the Notes are hereby made subordinate on all money or property held or collected by the Trustee,  except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the  Holders of particular Notes. The Trustee’s right to receive payment of any amounts due under  this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company.  The obligation of the Company under this Section 7.06 shall survive the satisfaction and  discharge of this Indenture 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(i) or Section 6.01(j) occurs, the expenses and the  compensation for the services are intended to constitute expenses of administration under any  bankruptcy, insolvency or similar laws.         7.07  Officers’ Certificate and Opinion of Counsel as Evidence. Except as otherwise  provided in Section 7.01, whenever in the administration of the provisions of this Indenture the  Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking  or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein  specifically prescribed) may, in the absence of bad faith on the part of the Trustee, be deemed to  be conclusively proved and established by an Officers’ Certificate and Opinion of Counsel  delivered to the Trustee, and such Officers’ Certificate and Opinion of Counsel, in the absence of  bad faith 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.         7.08  Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall  be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust Indenture Act were  applicable hereto) to act as such and has a combined capital and surplus of at least $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                                         41    





 






   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  (including, for the avoidance of doubt, any successor pursuant to Section 7.11) shall cease to be  eligible, or otherwise be ineligible, in accordance with the provisions of this Section, it shall  resign immediately in the manner and with the effect hereinafter specified in this Article.         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 at the expense of the Company, upon ten Business Days’ notice to the  Company and the Holders, petition any court of competent jurisdiction for the appointment of a  successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least  six months (or since the date of this Indenture) may, subject to the provisions of Section 6.11, on  behalf of himself or herself and all others similarly situated, petition any such court for the  appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may  deem proper and prescribe, appoint a successor trustee, and the Company shall bear the expense  associated with such appointment.               (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                                         42    





 






   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.         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 claim 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.         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.         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                                         43    





 






   authenticating agent appointed by such predecessor trustee, and deliver such Notes so  authenticated; and in case at that time any of the Notes shall not have been authenticated, any  successor to the Trustee or an authenticating agent appointed by such successor trustee may  authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of  the successor trustee; and in all such cases such certificates shall have the full force which it is  anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have;  provided, however, that the right to adopt the certificate of authentication of any predecessor  trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its  successor or successors by merger, conversion or consolidation.         7.12  Trustee’s Application for Instructions from the Company. Any application by  the Trustee for written instructions from the Company (other than with regard to any action  proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders  of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any  action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or  after which such action shall be taken or such omission shall be effective. The Trustee shall not  be liable to the Company for any action taken by, or omission of, the Trustee in accordance with  a proposal included in such application on or after the date specified in such application (which  date shall not be less than three Business Days after the date any officer that the Company has  indicated to the Trustee should receive such application actually receives such application, unless  any such officer shall have consented in writing to any earlier date), unless, prior to taking any  such action (or the effective date in the case of any omission), the Trustee shall have received  written instructions in accordance with this Indenture in response to such application specifying  the action to be taken or omitted.                                    ARTICLE 8                                                                   CONCERNING THE HOLDERS         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.         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                                         44    





 






   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.         8.03  Who Are Deemed Absolute Owners. The Company, the Trustee, any  authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may  deem the Person in whose name a Note shall be registered upon the Note Register to be, and may  treat it as, the absolute owner of such Note (whether or not such Note shall be overdue and  notwithstanding any notation of ownership or other writing thereon made by any Person other  than the Company or any Note Registrar) for the purpose of receiving payment of or on account  of the principal (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; and neither the Company nor the Trustee nor any Paying  Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the  contrary. All such payments or deliveries so made to any Holder for the time being, or upon its  order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or  delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable  upon any such Note. Notwithstanding anything to the contrary in this Indenture or the Notes,  following an Event of Default, any holder of a beneficial interest in a Global Note may directly  enforce against the Company, without the consent, solicitation, proxy, authorization or any other  action of the Depositary or any other Person, such holder’s right to exchange such beneficial  interest for a Note in certificated form in accordance with the provisions of this Indenture.         8.04  Company-Owned Notes Disregarded. In determining whether the Holders of  the requisite aggregate principal amount of Notes have concurred in any direction, consent,  waiver or other action under this Indenture, Notes that are owned by the Company, by any  Subsidiary thereof or by any Affiliate of the Company or any Subsidiary thereof shall be  disregarded and deemed not to be outstanding for the purpose of any such determination;  provided that for the purposes of determining whether the Trustee shall be protected in relying  on any such direction, consent, waiver or other action only Notes that a Responsible Officer  knows are so owned shall be so disregarded. Notes so owned that have been pledged in good  faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee shall  establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes  and that the pledgee is not the Company, a Subsidiary thereof or an Affiliate of the Company or  a Subsidiary thereof. In the case of a dispute as to such right, any decision by the Trustee taken  upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee,  the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying  all Notes, if any, known by the Company to be owned or held by or for the account of any of the  above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept such  Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all  Notes not listed therein are outstanding for the purpose of any such determination.         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                                         45    





 






   written notice with the Trustee at its Corporate Trust Office and upon proof of holding as  provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid,  any such action taken by the Holder of any Note shall be conclusive and binding upon such  Holder and upon all future Holders and owners of such Note and of any Notes issued in  exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether  any notation in regard thereto is made upon such Note or any Note issued in exchange or  substitution therefor or upon registration of transfer thereof.                                    ARTICLE 9                                                                       HOLDERS’ MEETINGS         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.         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.         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,                                         46    





 






   and the Trustee shall not have delivered the notice of such meeting within 20 days after receipt  of such request, then the Company or such Holders may determine the time and the place for  such meeting and may call such meeting to take any action authorized in Section 9.01, by  delivering notice thereof as provided in Section 9.02.         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.         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.         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                                         47    





 






   one or more Persons having knowledge of the facts setting forth a copy of the notice of the  meeting and showing that said notice was delivered as provided in Section 9.02. The record shall  show the aggregate principal amount of the Notes voting in favor of or against any resolution.  The record shall be signed and verified by the affidavits of the permanent chairman and secretary  of the meeting and one of the duplicates shall be delivered to the Company and the other to the  Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the  meeting.         Any record so signed and verified shall be conclusive evidence of the matters therein  stated.         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.                                    ARTICLE 10                                                                  SUPPLEMENTAL INDENTURES         10.01 Supplemental Indentures Without Consent of Holders. 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)   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;               (f)   to make any change that does not adversely affect in any material respect  the rights of any Holder (as determined in good faith by the Company and evidenced by an  Officers’ Certificate);               (g)   in connection with any Share Exchange 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;               (h)   to comply with any requirement of the Commission in connection with the  qualification of this Indenture under the Trust Indenture Act;                                         48    





 






               (i)   to provide for the acceptance of appointment by a successor trustee  pursuant to this Indenture or facilitate the administration of the trusts under this Indenture by  more than one trustee;                (j)   to conform the provisions of this Indenture or the Notes to the  “Description of Notes” section of the Offering Memorandum; or                (k)   irrevocably elect a Settlement Method or a Specified Dollar Amount, or  eliminate the Company’s right to elect a Settlement Method; provided, however, that no such  election or elimination will affect any Settlement Method theretofore elected (or deemed to be  elected) with respect to any Note pursuant to Section 14.02.         Upon the written request of the Company, the Trustee is hereby authorized to 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, but the Trustee shall not  be obligated to, but may in its discretion, enter into any supplemental indenture that affects the  Trustee’s own rights, duties or immunities under this Indenture or otherwise.         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.         10.02 Supplemental Indentures with Consent of Holders. With the consent  (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate  principal amount of the Notes then outstanding (determined in accordance with Article 8 and  including, without limitation, consents obtained in connection with a repurchase of, or tender or  exchange offer for, Notes), the Company, 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 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 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)   make any change that adversely affects the conversion rights of any Notes;               (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;                                         49    





 






               (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; or               (h)   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 Holders as aforesaid and subject to Section 10.05, the Trustee shall  join with the Company in the execution of such supplemental indenture unless such  supplemental indenture affects the Trustee’s own rights, duties or immunities under this  Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated  to, enter into such supplemental indenture.         Holders do not need under this Section 10.02 to approve the particular form of any  proposed supplemental indenture. It shall be sufficient if such Holders approve the substance  thereof. After any such supplemental indenture becomes effective, the Company shall deliver to  the Holders a notice briefly describing such supplemental indenture. However, the failure to give  such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of  the supplemental indenture.         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.         10.04 Notation on Notes. Notes authenticated and delivered after the execution of any  supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s  expense, bear a notation in form approved by the Trustee as to any matter provided for in such  supplemental indenture. If the Company or the Trustee shall so determine, new Notes so  modified as to conform, in the opinion of the Trustee and the Board of Directors, to any  modification of this Indenture contained in any such supplemental indenture may, at the  Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or  an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in  exchange for the Notes then outstanding, upon surrender of such Notes then outstanding.         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 Officers’  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.                                          50    





 






                                    ARTICLE 11                                                   CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE         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.         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 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                                         51    





 






   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.         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 Officers’  Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,  merger, sale, conveyance, transfer or lease, as the case may be, 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, and which Opinion of Counsel shall  state that the Notes and such supplemental indenture are valid and binding obligations of the  Successor Company.                                    ARTICLE 12                                                IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND                                   DIRECTORS         12.01 Indenture and Notes Solely Corporate Obligations. No recourse for the  payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based  thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant  or agreement of the Company in this Indenture or in any supplemental indenture or in any Note,  nor because of the creation of any indebtedness represented thereby, shall be had against any  incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past,  present or future, of the Company or of any successor corporation, either directly or through the  Company or any successor corporation, whether by virtue of any constitution, statute or rule of  law, or by the enforcement of any assessment or penalty or otherwise; it being expressly  understood that all such liability is hereby expressly waived and released as a condition of, and  as a consideration for, the execution of this Indenture and the issue of the Notes.                                    ARTICLE 13                                                                   [INTENTIONALLY OMITTED]                                    ARTICLE 14                                                                     CONVERSION OF NOTES         14.01 Conversion Privilege. (a)  Subject to and upon compliance with the provisions of  this Article 14, each Holder of a Note shall have the right, at such Holder’s option, to convert all  or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple  thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at                                         52    





 






   any time prior to the close of business on the Business Day immediately preceding February 15,  2027 under the circumstances and during the periods set forth in Section 14.01(b), and (ii)  regardless of the conditions described in Section 14.01(b), on or after February 15, 2027 and  prior to the close of business on the Business Day immediately preceding the Maturity Date, in  each case, at an initial conversion rate of 30.0978 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 February 15, 2027, a Holder may surrender all or any portion of its Notes for  conversion at any time during the five consecutive Business Day period immediately following  any ten consecutive Trading Day period (the “Measurement Period”) in which the Trading  Price per $1,000 principal amount of Notes, as determined following a request by a Holder of  Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period  was less than 98% of the product of the Last Reported Sale Price of the Common Stock on each  such Trading Day and the Conversion Rate on each such Trading Day. The Trading Prices shall  be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition  of Trading Price set forth in this Indenture. The 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, 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 provided the Bid  Solicitation Agent the names and contact information for such dealers) 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 Notes having an aggregate principal amount of more than  $3,000,000 provides the Company with reasonable evidence that the Trading Price per $1,000  principal amount of Notes on any Trading Day would be less than 98% of the product of the Last  Reported Sale Price of the Common Stock on such Trading Day and the Conversion Rate on  such Trading Day, at which time the Company shall instruct the Bid Solicitation Agent (if other  than the Company) in writing to determine, or if the Company is acting as Bid Solicitation  Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes  beginning on the next Trading Day and on each successive Trading Day until the Trading Price  per $1,000 principal amount of Notes is greater than or equal to 98% of the product of the Last  Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not  acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to  determine the Trading Price per $1,000 principal amount of Notes when obligated as provided in  the preceding sentence, or if the Company instructs the Bid Solicitation Agent in writing 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 in writing, the Trustee and the Conversion Agent (if other than the Trustee). If, at                                         53    





 






   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 in writing, the Trustee and the Conversion Agent (if  other than the Trustee).                     (ii)  If, prior to the close of business on the Business Day immediately  preceding February 15, 2027, the Company elects to:                           (A)   issue to all or substantially all holders of the Common  Stock any rights, options or warrants (other than pursuant to a stockholder rights plan in respect  of which the stockholder rights have not separated from the shares of 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 pursuant to a stockholder rights plan in respect of which the stockholder rights have not  separated from the shares of Common Stock), which distribution has a per share value, as  reasonably determined by the Board of Directors, exceeding 10% of the Last Reported Sale Price  of the Common Stock on the Trading Day preceding the date of announcement for such  distribution,   then, in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and  the Conversion Agent (if other than the Trustee) (x) at least 50 Scheduled Trading Days prior to  the Ex-Dividend Date for such issuance or distribution or (y) at least 10 Scheduled Trading Days  prior to the Ex-Dividend Date for such issuance or distribution (provided that, if the Company  provides such notice in accordance with this clause (y) but not in accordance with the  immediately preceding clause (x), notwithstanding anything to the contrary under Section 14.02  or any other provision of this Indenture, the Company will be required to settle all conversions of  Notes with a Conversion Date occurring during the period from, and including, the date of such  notice to, and including, the Business Day immediately preceding the Ex-Dividend Date for such  issuance or distribution (or the date of the Company’s announcement that such issuance or  distribution will not take place) using Physical Settlement and the Company will so notify the  Holders of such required Settlement Method in such notice). 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 distribution will not take place, in each case, even if the Notes are not otherwise convertible at  such time.                     (iii) If 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 February 15, 2027, regardless of whether a Holder has the right to require                                         54    





 






   the Company to repurchase the Notes pursuant to Section 15.02, or 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 that occurs prior to the close of business on the Business Day immediately preceding  February 15, 2027, in each case, pursuant to which the Common Stock would be converted into  cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for  conversion at any time from or after the date that is 50 Scheduled Trading Days prior to the  anticipated effective date of the transaction (or, if later, the earlier of (x) the Business Day after  the Company gives notice of such transaction and (y) the actual effective date of such  transaction) until 35 Trading Days after the actual effective date of such transaction or, if such  transaction also constitutes a Fundamental Change, until the close of business on 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, but in no event later than the actual effective date  of such transaction.                     (iv)  Prior to the close of business on the Business Day immediately  preceding February 15, 2027, a Holder may surrender all or any portion of its Notes for  conversion at any time during any calendar quarter commencing after the calendar quarter  ending on 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. The Company shall determine at the beginning of each calendar  quarter commencing after September 30, 2020 whether the Notes may be surrendered for  conversion in accordance with this clause (iv) and shall notify the Holders, the Trustee and the  Conversion Agent (if other than the Trustee) if the Notes become convertible in accordance with  this clause (iv).                     (v)   If the Company calls any or all of the Notes for redemption  pursuant to Article 16, 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 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 on account of the Company’s delivery of the Notice of Redemption 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 Business Day immediately preceding the date on which the  Redemption Price has been paid or duly provided for.         14.02 Conversion Procedure; Settlement Upon Conversion.               (a)   Subject to this Section 14.02, Section 14.03(c) 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                                         55    





 






   with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth  in this Section 14.02.                     (i)   All conversions for which the relevant Conversion Date occurs on  or after February 15, 2027, and all conversions for which the relevant Conversion Date occurs on  or after the Company’s issuance of a Notice of Redemption with respect to the Notes and prior to  the related Redemption Date, shall be settled using the same Settlement Method.                     (ii)  Except for any conversions for which the relevant Conversion Date  occurs on or after February 15, 2027, and any conversions for which the relevant Conversion  Date occurs on or after the Company’s issuance of a Notice of Redemption with respect to the  Notes but prior to the related Redemption Date, the Company shall use the same Settlement  Method for all conversions with the same Conversion Date, but the Company shall not have any  obligation to use the same Settlement Method with respect to conversions with different  Conversion Dates.                     (iii) If, in respect of any Conversion Date (or one of the periods  described in the third immediately succeeding set of parentheses, 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, through  the Trustee, shall deliver such Settlement Notice to converting Holders no later than the close of  business on the Trading Day immediately following the relevant Conversion Date (or, in the case  of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance  of a Notice of Redemption with respect to the Notes and prior to the related Redemption Date, in  such Notice of Redemption or (y) on or after February 15, 2027, no later than February 15,  2027). If the Company does not 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 and the Company shall be deemed to have elected  Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar  Amount per $1,000 principal amount of Notes shall be equal to $1,000. 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. 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 in such Settlement Notice, the Specified Dollar  Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.                     (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;                                          56    





 






                           (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 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 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 Notice of Conversion with respect to any Notes may be surrendered 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.                                         57    





 






               (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(c) and  Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in  respect of the Conversion Obligation on the second Business Day immediately following the  relevant Conversion Date, if the Company elects Physical Settlement, or on the second Business  Day immediately following the last Trading Day of the Observation Period, in the case of any  other Settlement Method. If any shares of Common Stock are due to a converting Holder, the  Company shall issue or cause to be issued, and deliver (if applicable) to such Holder, or such  Holder’s nominee or nominees, the full number of shares of Common Stock to which such  Holder shall be entitled, in book-entry format through the Depositary, in satisfaction of the  Company’s Conversion Obligation.               (d)   In case any Note shall be surrendered for partial conversion, the Company  shall execute and the Trustee shall authenticate and deliver to or upon the written order of the  Holder of the Note so surrendered a new Note or Notes in authorized denominations in an  aggregate principal amount equal to the unconverted portion of the surrendered Note, without  payment of any service charge by the converting Holder but, if required by the Company or  Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or  transfer tax or similar governmental charge required by law or that may be imposed in  connection therewith as a result of the name of the Holder of the new Notes issued upon such  conversion being different from the name of the Holder of the old Notes surrendered for such  conversion.               (e)   If a Holder submits a Note for conversion, the Company shall pay any  documentary, stamp or similar issue or transfer tax due on the issue of any shares of Common  Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued  in a name other than the Holder’s name, in which case the Holder shall pay that tax. The  Company 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. 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                                         58    





 






   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, 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 to the open of business on the  immediately following Interest Payment Date, however, must be accompanied by funds equal to  the amount of interest payable on the Notes so converted; provided that no such payment shall be  required (1) for conversions following the Regular Record Date immediately preceding the  Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular  Record Date and on or prior to the Business Day immediately following the corresponding  Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase  Date that is after a Regular Record Date and on or prior to the Business Day immediately  following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted  Amounts, if any Defaulted Amounts 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 shares of Common Stock shall be issuable  upon conversion shall become 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 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.         14.03 Increased Conversion Rate Applicable to Certain Notes Surrendered in  Connection with Make-Whole Fundamental Changes or Notices of Redemption. (a)  If (x)  the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or  (y) the Company gives a Notice of Redemption with respect to any or all of the Notes in  accordance with Section 16.02 and, in each case, a Holder elects to convert its Notes in  connection with such Make-Whole Fundamental Change or Notice of Redemption, as applicable,  the Company shall, under the circumstances described below, increase the Conversion Rate for                                         59    





 






   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 Business Day  immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a  Make-Whole Fundamental Change that would have been a Fundamental Change but for the  proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the  Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole  Fundamental Change Period”). A conversion of Notes shall be deemed for these purposes to  be “in connection with” a Notice of Redemption if the relevant Notice of Conversion is received  by the Conversion Agent from, and including, the date of the Notice of Redemption until the  close of business on the Scheduled Trading Day immediately preceding corresponding  Redemption Date.               (b)   Upon surrender of Notes for conversion in connection with a Make-Whole  Fundamental Change pursuant to Section 14.01(b)(iii) or Notice of Redemption 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 with Section  14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change  described in clause (b) of the definition of Fundamental Change, the Reference Property  following such Make-Whole Fundamental Change is composed entirely of cash, for any  conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the  Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and  shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal  to the Conversion Rate (including any adjustment for Additional Shares), multiplied by such  Stock Price. In such event, the Conversion Obligation shall be 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 of the Effective Date of any Make-Whole  Fundamental Change and issue a press release announcing such Effective Date no later than five  Business Days after such Effective Date.               (c)   The number of Additional Shares, if any, by which the Conversion Rate  shall be increased shall be determined by reference to the table below, based on the date on  which the Make-Whole Fundamental Change occurs or becomes effective, or the date of the  relevant Notice of Redemption, as the case may be (in each case, the “Effective Date”), and the  price paid (or deemed to be paid) per share of the Common Stock in the Make-Whole  Fundamental Change or with respect to the Optional Redemption, as the case may be (the “Stock  Price”). If the holders of the Common Stock receive in exchange for their Common Stock only  cash in a Make-Whole Fundamental Change described in clause (b) of the definition of  Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise, the  Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the  five Trading Day period ending on, and including, the Trading Day immediately preceding the  Effective Date of the Make-Whole Fundamental Change or the date of the Notice of  Redemption, 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                                         60    





 






       the Ex-Dividend Date, Effective Date (as such term is used in Section 14.04) or expiration date    of the event occurs during such five consecutive Trading Day period. In the event that a    conversion would be deemed to be in connection with a Make-Whole Fundamental Change and a    Notice of Redemption, a Holder of the Notes to be converted will be entitled to a single increase    to the Conversion Rate with respect to the first to occur of the Effective Date of the Notice of    Redemption or the Make-Whole Fundamental Change, as applicable, and the later event will 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    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           $26.58 $30.00 $33.23 $35.00 $40.00 $43.19 $50.00 $75.00 $100.00 $125.00 $150.00 $200.00 $250.00 $350.00  Date  May 22,           7.5244 6.9340 5.9828 5.5560 4.6055 4.1431 3.3978 1.9924 1.3564 0.9866 0.7423 0.4369 0.2525 0.0404  2020  May 15,           7.5244 6.6180 5.6398 5.2066 4.2573 3.8039 3.0874 1.7863 1.2154 0.8863 0.6693 0.3981 0.2344 0.0404  2021  May 15,           7.5244 6.2543 5.2398 4.7980 3.8495 3.4082 2.7280 1.5528 1.0567 0.7726 0.5855 0.3517 0.2106 0.0404  2022  May 15,           7.5244 5.8483 4.7812 4.3263 3.3765 2.9498 2.3160 1.2935 0.8815 0.6467 0.4919 0.2981 0.1812 0.0404  2023  May 15,           7.5244 5.3917 4.2435 3.7686 2.8163 2.4107 1.8410 1.0085 0.6903 0.5085 0.3881 0.2374 0.1464 0.0404  2024  May 15,           7.5244 4.8483 3.5703 3.0660 2.1208 1.7546 1.2872 0.6977 0.4812 0.3558 0.2725 0.1680 0.1050 0.0328  2025  May 15,           7.5244 4.1377 2.6115 2.0677 1.2010 0.9338 0.6540 0.3627 0.2524 0.1873 0.1438 0.0894 0.0566 0.0190  2026  May 15,           7.5244 3.2357 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000  2027           The exact Stock Price and Effective Date may not be set forth in the table above, in    which case:                       (i)   if the Stock Price is between two Stock Prices in the table above or    the Effective Date is between two Effective Dates in the table, the number of Additional Shares    shall be determined by a straight-line interpolation between the number of Additional Shares set                                           61      





 






   forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as  applicable, based on a 365-day year;                     (ii)  if the Stock Price is greater than $350.00 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 $26.58 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 37.6222 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.         14.04 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from  time to time by the Company if any of the following events occurs, except that the Company  shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other  than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the  same time and upon the same terms as holders of the Common Stock and solely as a result of  holding the Notes, in any of the transactions described in this Section 14.04, without having to  convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion  Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.               (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:                                                          1                         1                            OS                        CR       =      CR0      x                                                       OS0        where,   CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-       Dividend Date of such dividend or distribution, or immediately prior to the open of        business on the Effective Date of such share split or share combination, as applicable;   CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-       Dividend Date or Effective Date;                                          62    





 






    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); and   OS1 = the number of shares of Common Stock outstanding immediately after giving effect to        such dividend, distribution, share split or share combination.         Any adjustment made under this Section 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, distribution, share split or share combination of the  type described in this Section 14.04(a) is declared or announced 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 or to effect such share split or share  combination, to the Conversion Rate that would then be in effect if such dividend, distribution,  share split or share combination had not been declared or announced.               (b)   If the Company issues to all or substantially all holders of the Common  Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar  days after the announcement date of such issuance, to subscribe for or purchase shares of the  Common Stock at a price per share that is less than the average of the Last Reported Sale Prices  of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the  Trading Day immediately preceding the date of announcement of such issuance, the Conversion  Rate shall be increased based on the following formula:        where,                          1                         OS0+X                      CR      =      CR0 x                                                   OS0+Y           CR0  the Conversion Rate in effect immediately prior to the open of business on the Ex- =    Dividend Date for such issuance;   CR1  the Conversion Rate in effect immediately after the open of business on such Ex- =    Dividend Date;   OS0 = the number of shares of Common Stock outstanding immediately prior to the open       of business on such Ex-Dividend Date;   X =  the total number of shares of Common Stock issuable pursuant to such rights,       options or warrants; and   Y =  the number of shares of Common Stock equal to the aggregate price payable to       exercise such rights, options or warrants, divided by the average of the Last       Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day                                         63    





 






        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 for the purpose of Section 14.01(b)(ii)(A), in  determining whether any rights, options or warrants entitle the holders to subscribe for or  purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices  of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the  Trading Day immediately preceding the date of announcement for such issuance, and in  determining the aggregate offering price of such shares of Common Stock, there shall be taken  into account any consideration received by the Company for such rights, options or warrants and  any amount payable on exercise or conversion thereof, the value of such consideration, if other  than cash, to be determined by the Board of Directors.               (c)   If the Company distributes shares of its Capital Stock, evidences of its  indebtedness, other assets or property of the Company or rights, options or warrants to acquire its  Capital Stock or other securities, to all or substantially all holders of the Common Stock,  excluding (i) dividends, 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 set forth in Section 14.04(d) shall apply, (iii) except as  otherwise provided in Section 14.11, rights issued under a stockholder rights plan of the  Company, (iv) distributions of Reference Property in exchange for or upon conversion of the  Common Stock in a Share Exchange Event 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:         where,                         1                         SP0                     CR     =    CR0    x                                               SP0 - FMV    CR0  the Conversion Rate in effect immediately prior to the open of business on the Ex- =    Dividend Date for such distribution;                                          64    





 






   CR1  the Conversion Rate in effect immediately after the open of business on such Ex- =    Dividend Date;   SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10       consecutive Trading Day period ending on, and including, the Trading Day       immediately preceding the Ex-Dividend Date for such distribution; and   FMV  the fair market value (as determined by the Board of Directors) of the Distributed  =    Property distributed to holders of the outstanding Common Stock applicable to one       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 Board  of Directors 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 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:                       1                       FMV0 +MP0                   CR      =  CR0     x                                                 MP0         where,   CR0 = the Conversion Rate in effect immediately prior to the end of the Valuation Period;   CR1 = the Conversion Rate in effect immediately after the end of the Valuation Period;                                          65    





 






    FMV0  the average of the Last Reported Sale Prices of the Capital Stock or similar equity  =     interest distributed to holders of the Common Stock applicable to one share of the        Common Stock (determined by reference to the definition of Last Reported Sale Price        as set forth in Section 1.01 as if references therein to Common Stock were to such        Capital Stock or similar equity interest) over the first 10 consecutive Trading Day        period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation        Period”); and   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 preceding paragraph shall be  deemed to be replaced with such lesser number of Trading Days as have elapsed from, and  including, the Ex-Dividend Date of such Spin-Off to, and, including, 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 preceding paragraph shall be deemed to be replaced with such lesser number of  Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to,  and including, such Trading Day in determining the Conversion Rate as of such Trading Day.         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                                         66    





 






   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”),         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:                          1                          SP0                      CR      =     CR0    x                                                   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;                                         67    





 






   CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-       Dividend Date for such dividend or distribution;   SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately        preceding the Ex-Dividend Date for such dividend or distribution; and   C =   the amount in cash per share 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, at the same time and upon the same terms as holders  of shares of the Common Stock, the amount of cash that such Holder would have received if  such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the  Ex-Dividend Date for such cash dividend or distribution.               (e)   If the Company or any of its Subsidiaries make a payment in respect of a  tender or exchange offer for the Common Stock, 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:                                                   1    1                      1                  AC + (SP  x OS )                     CR   =  CR0   x                 1                                            OS0 x 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;   ``    the Conversion Rate in effect immediately after the close of business on the 10th Trading        Day immediately following, and including, the Trading Day next succeeding the date such        tender or exchange offer expires;   AC =  the aggregate value of all cash and any other consideration (as determined by the Board of        Directors) paid or payable for shares of Common Stock purchased in such tender or        exchange offer;                                          68    





 






    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);   OS1 = the number of shares of Common Stock outstanding immediately after the date such tender        or exchange offer expires (after giving effect to the purchase of all shares of Common Stock        accepted for purchase or exchange in such tender or exchange offer); and   SP1 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive        Trading Day period commencing on, and including, the Trading Day next succeeding the        date such tender or exchange offer expires.         The increase to the Conversion Rate under this Section 14.04(e) shall occur at the close  of business on the 10th Trading Day immediately following, and including, the Trading Day next  succeeding the date such tender or exchange offer expires; provided that (x) in respect of any  conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date  occurs during the 10 Trading Days immediately following, and including, the Trading Day next  succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in  the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as  have elapsed from, and including, the Trading Day next succeeding the date that such tender or  exchange offer expires to, and including, the Conversion Date in determining the Conversion  Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination  Settlement is applicable, for any Trading Day that falls within the relevant Observation Period  for such conversion and within the 10 Trading Days immediately following, and including, the  Trading Day next succeeding the expiration date of any tender or exchange offer, references to  “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of  Trading Days as have elapsed from, and including, the Trading Day next succeeding the  expiration date of such tender or exchange offer to, and including, such Trading Day in  determining the Conversion Rate as of such Trading Day.               (f)   Notwithstanding this Section 14.04 or any other provision of this  Indenture or the Notes, if:                     (i)   a Note is to be converted pursuant to Physical Settlement or  Combination Settlement;                     (ii)  the Record Date or Effective Date for any event that requires an  adjustment to the Conversion Rate pursuant to the provisions described in clauses (a) through  (e), inclusive, of this Section 14.04 has occurred on or before the Conversion Date for such  conversion (in the case of Physical Settlement) or on or before any Trading Day in the  Observation Period for such conversion (in the case of Combination Settlement), but an  adjustment to the Conversion Rate for such event has not yet become effective as of such  Conversion Date or Trading Day, as applicable;                     (iii) the consideration due upon such conversion (in the case of  Physical Settlement) or due in respect of such Trading Day (in the case of Combination  Settlement) includes any whole shares of Common Stock; and                                         69    





 






                     (iv)  such shares are not entitled to participate in such event (because  they were not held on the related Record Date or otherwise),   then, solely for purposes of such conversion, the Company will, without duplication, give effect  to such adjustment on such Conversion Date (in the case of Physical Settlement) or such Trading  Day (in the case of Combination Settlement), and, for the avoidance of doubt, such shares will  not be entitled to participate in such event.  In such case, if the date the Company is otherwise  required to deliver the consideration due upon such conversion is before the first date on which  the amount of such adjustment can be determined, then the Company will delay the settlement of  such conversion until the second Business Day after such first date.               (g)   Notwithstanding this Section 14.04 or any other provision of this  Indenture or the Notes, if:                     (i)   a Conversion Rate adjustment for any dividend or distribution  becomes effective on any Ex-Dividend Date pursuant to the provisions described above;                     (ii)  a Note is to be converted pursuant to Physical Settlement or  Combination Settlement;                     (iii) the Conversion Date for such conversion (in the case of Physical  Settlement) or any Trading Day in the Observation Period for such conversion (in the case of  Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the related  Record Date;                     (iv)  the consideration due upon such conversion (in the case of  Physical Settlement) or due with respect to such Trading Day (in the case of Combination  Settlement) includes any whole shares of the Common Stock based on a Conversion Rate that is  adjusted for such dividend or distribution; and                     (v)   such shares would be entitled to participate in such dividend or  distribution,   then, (x) such Conversion Rate adjustment will not be given effect for such conversion (in the  case of Physical Settlement) or for such Trading Day (in the case of Combination Settlement);  and (y) the shares of Common Stock, if any, issuable upon such conversion (in the case of  Physical Settlement) or issuable with respect to such Trading Day (in the case of Combination  Settlement) based on such unadjusted Conversion Rate will be entitled to participate in such  dividend or distribution.               (h)   Except as stated herein, the Company shall not adjust the Conversion Rate  for the issuance of shares of the Common Stock or any securities convertible into or  exchangeable for shares of the Common Stock or the right to purchase shares of the Common  Stock or such convertible or exchangeable securities.               (i)   In addition to those adjustments required by clauses (a), (b), (c), (d) and  (e) of this Section 14.04, and to the extent permitted by applicable law and subject to the  applicable listing standards of The Nasdaq Global Select Market, the Company from time to time                                         70    





 






   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 listing standards  of The Nasdaq Global Select Market, 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 a notice of the increase at least 15 days prior to the date the increased  Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the  period during which it will be in effect.               (j)   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)  solely for a change in the par value of the Common Stock; or                     (v)   for accrued and unpaid interest, if any.               (k)   All calculations and other determinations under this Article 14 shall be  made by the Company and shall be made to the nearest one-ten thousandth (1/10,000th) of a  share.               (l)   Notwithstanding this Section 14.04 or any other provision of this  Indenture or the Notes, the Company shall not be required to adjust the Conversion Rate  pursuant to this Section 14.04 unless such adjustment would result in a change of at least 1% in  the then-effective Conversion Rate; provided that any such adjustments to the Conversion Rate  that the Company would otherwise have to make shall be carried forward and taken into account  in any subsequent adjustment; provided further that any such carried-forward adjustments shall  be made upon the earliest to occur of the following: (i) when all such deferred adjustments would  result in an aggregate change of at least 1% to the then-effective Conversion Rate, (ii) (x) the  Conversion Date for any Notes (in the case of any Physical Settlement or any conversion  following a replacement of the Common Stock by Reference Property consisting solely of cash)  or (y) each Trading Day of any Observation Period (in the case of Cash Settlement or                                         71    





 






   Combination Settlement), (iii) the Effective Date for any Fundamental Change and/or Make- Whole Fundamental Change and (iv) February 15, 2027.               (m)   Whenever the Conversion Rate is adjusted as herein provided, the  Company shall promptly file with the Trustee (and the Conversion Agent if not the Trustee) an  Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a  brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of  the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to  have knowledge of any adjustment of the Conversion Rate and may assume without inquiry that  the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of  such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate  setting forth the adjusted Conversion Rate and the date on which each adjustment becomes  effective and shall 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.               (n)   For purposes of this Section 14.04, the number of shares of Common  Stock at any time outstanding shall not include shares of Common Stock held in the treasury of  the Company so long as the Company does not pay any dividend or make any distribution on  shares of Common Stock held in the treasury of the Company, but shall include shares of  Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of  Common Stock.         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 for determining the Stock Price for purposes of  a Make-Whole Fundamental Change or Optional Redemption), the Board of Directors shall  make appropriate adjustments to each to account for any adjustment to the Conversion Rate that  becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex- Dividend Date, Effective Date or expiration date, as the case may be, of the event occurs, at any  time during the period when the Last Reported Sale Prices, the Daily VWAPs, the Daily  Conversion Values or the Daily Settlement Amounts are to be calculated.         14.06 Shares to Be Fully Paid. The Company shall 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 were applicable).         14.07 Effect of Recapitalizations, Reclassifications and Changes of the Common  Stock.               (a)   In the case of:                                          72    





 






                     (i)   any recapitalization, reclassification or change of the Common  Stock (other than changes resulting from a subdivision or combination or a change of par value  or to no par value),                     (ii)  any consolidation, merger, combination or similar transaction  involving the Company,                     (iii) any sale, lease or other transfer to a third party of the consolidated  assets of the Company and the Company’s Subsidiaries substantially as an entirety or                     (iv)  any statutory share exchange,         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 “Share Exchange Event”), then, at and after the  effective time of such Share Exchange 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 Share Exchange 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 Share Exchange Event and, prior to or at the effective time of such  Share Exchange 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 Share Exchange Event (A) the  Company shall continue to have the right to determine the form of consideration to be paid or  delivered, as the case may be, upon conversion of Notes in accordance with Section 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 been entitled to receive in such Share  Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of  Reference Property.         If the Share Exchange Event causes the Common Stock to be converted into, or  exchanged for, the right to receive more than a single type of consideration (determined based in  part upon any form of stockholder election), then (i) the 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 Share Exchange Event, then for all conversions for which the  relevant Conversion Date occurs after the effective date of such Share Exchange Event (A) the  consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash                                         73    





 






   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 Share Exchange 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 Share Exchange  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 successor or purchasing  corporation, as the case may be, in such Share Exchange Event, then such other Person shall also  be required to execute such supplemental indenture, and such supplemental indenture 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  Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or  property or asset that will comprise a unit of Reference Property after any such Share Exchange  Event, any adjustment to be made with respect thereto and that all conditions precedent have  been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall  cause notice of the execution of such supplemental indenture to be delivered to each Holder  within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality  or validity of such supplemental indenture.               (c)   The Company shall not become a party to any Share Exchange Event  unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall  affect the right of a holder of Notes to convert its Notes into cash, shares of 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 Share Exchange Event.               (d)   The above provisions of this Section 14.07 shall similarly apply to  successive Share Exchange Events.         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                                          74    





 






   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.         14.09 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not  at any time be under any duty or responsibility to any Holder to determine the Conversion Rate  (or any adjustment thereto) or whether any facts exist that may require any adjustment (including  any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any  such adjustment when made, or with respect to the method employed, or herein or in any  supplemental indenture provided to be employed, in making the same. The Trustee and any other  Conversion Agent shall not be accountable with respect to the validity or value (or the kind or  amount) of any shares of Common Stock, or of any securities, property or cash that may at any  time be issued or delivered upon the conversion of any Note; and the Trustee and any other  Conversion Agent make no representations with respect thereto. Neither the Trustee nor any  Conversion Agent shall be responsible for any failure of the Company to issue, transfer or  deliver any shares of Common Stock or stock certificates or other securities or property or cash  upon the surrender of any Note for the purpose of conversion or to comply with any of the  duties, responsibilities or covenants of the Company contained in this Article 14. Without  limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall be  under any responsibility to determine the correctness of any provisions contained in any  supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or  amount of shares of stock or securities or property (including cash) receivable by Holders upon  the conversion of their Notes after any event referred to in such Section 14.07 or to any  adjustment to be made with respect thereto, but, subject to the provisions of Section 7.01, may  accept (without any independent investigation) as conclusive evidence of the correctness of any  such provisions, and shall be protected in relying upon, the Officers’ Certificate (which the  Company shall be obligated to file with the Trustee prior to the execution of any such  supplemental indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall  be responsible for determining whether any event contemplated by Section 14.01(b) has occurred  that makes the Notes eligible for conversion or no longer eligible therefor until the Company has  delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b)  with respect to the commencement or termination of such conversion rights, on which notices the  Trustee and the Conversion Agent 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).         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)   Share Exchange Event; or                                          75    





 






               (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  notice stating (i) the date on which a record is to be taken for the purpose of such action by the  Company or one of its Subsidiaries or, if a record is not to be taken, the date as of which the  holders of Common Stock of record are to be determined for the purposes of such action by the  Company or one of its Subsidiaries, or (ii) the date on which such Share Exchange Event,  dissolution, liquidation or winding-up is expected to become effective or occur, and the date as  of which it is expected that holders of Common Stock of record shall be entitled to exchange  their Common Stock for securities or other property deliverable upon such Share Exchange  Event, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein,  shall not affect the legality or validity of such action by the Company or one of its Subsidiaries,  Share Exchange Event, dissolution, liquidation or winding-up.         14.11 Stockholder Rights Plans. If the Company has a stockholder rights plan in effect  upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion  shall be entitled to receive the appropriate number of rights, if any, and the certificates  representing the Common Stock issued upon such conversion shall bear such legends, if any, in  each case as may be provided by the terms of any such stockholder rights plan, as the same may  be amended from time to time. However, if, prior to any conversion of Notes, the rights have  separated from the shares of Common Stock in accordance with the provisions of the applicable  stockholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the  Company distributed to all or substantially all holders of the Common Stock Distributed  Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration,  termination or redemption of such rights.                                    ARTICLE 15                                                         REPURCHASE OF NOTES AT OPTION OF HOLDERS         15.01 Intentionally Omitted.         15.02 Repurchase at Option of Holders Upon a Fundamental Change. (a) If a  Fundamental Change occurs at any time, 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 that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental  Change Repurchase Date”) specified by the Company that is not less than 20 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  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                                         76    





 






   interest to Holders of record as of 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.               (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, 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 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:                     (iii) in the case of Physical Notes, the certificate numbers of the Notes  to be delivered for repurchase;                     (iv)  the portion of the principal amount of Notes to be repurchased,  which must be $1,000 or an integral multiple thereof; and                     (v)   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                                         77    





 






   Trustee, Conversion Agent (in the case of a Conversion Agent other than 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.  Simultaneously with providing such notice, the Company shall publish a notice containing the  information set forth in the Fundamental Change Company Notice in a newspaper of general  circulation in The City of New York or publish such information on the Company’s website or  through such other public medium as the Company may use at that time. Each Fundamental  Change Company Notice shall specify:                     (i)   the events causing the Fundamental Change;                     (ii)  the date of the Fundamental Change;                     (iii) the last date on which a Holder may exercise the repurchase right  pursuant to this Article 15;                     (iv)  the Fundamental Change Repurchase Price;                     (v)   the Fundamental Change Repurchase Date;                     (vi)  the name and address of the Paying Agent and the Conversion  Agent, if applicable;                     (vii) if applicable, the Conversion Rate and any adjustments to the  Conversion Rate;                     (viii) that the Notes with respect to which a Fundamental Change  Repurchase Notice has been delivered by a Holder may be converted only if the Holder  withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this  Indenture; 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, 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                                         78    





 






   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.         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 written notice  of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with  this Section 15.03 at any time prior to the close of business on the Business Day immediately  preceding the Fundamental Change Repurchase Date, specifying:                     (i)   the principal amount of the Notes with respect to which such  notice of withdrawal is being submitted,                     (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 an integral multiple of $1,000;   provided, however, that if the Notes are Global Notes, the notice must comply with appropriate  procedures of the Depositary.         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.                                         79    





 






               (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, (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 and, if applicable, accrued and unpaid  interest).               (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.         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;               (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         16.01 Optional Redemption. No sinking fund is provided for the Notes. The Notes  shall not be redeemable by the Company prior to May 20, 2024. On or after May 20, 2024 and  on or before the 40th Scheduled Trading Day immediately prior to the Maturity Date, the  Company may redeem (an “Optional Redemption”) for cash all or any portion of the Notes, at  the Redemption Price, if the Last Reported Sale Price of the Common Stock has been at least  130% of the Conversion Price then in effect for at least 20 Trading Days (whether or not  consecutive), including the Trading Day immediately preceding the date on which the Company  provides the relevant Notice of Redemption, during any 30 consecutive Trading Day period  ending on, and including, the Trading Day immediately preceding the date on which the  Company provides the Notice of Redemption in accordance with Section 16.02.         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                                         80    





 






   Notes pursuant to Section 16.01, it shall fix a date for redemption (each, a “Redemption Date”)  and it or, upon delivery of an Officers’ Certificate requesting that the Trustee give such Notice of  Redemption received by the Trustee not less than five Business Days prior to the date the Notice  of Redemption is to be delivered to the Holders (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 “Notice of  Redemption”) not less than 50 nor more than 60 Scheduled Trading Days prior to the  Redemption Date to each Holder of Notes so to be redeemed as a whole or in part; provided,  however, that, 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.                (b)   The Notice of Redemption, if delivered in the manner herein provided,  shall be conclusively presumed to have been duly given, whether or not the Holder receives such  notice. In any case, failure to give such Notice of Redemption by mail or any defect in the Notice  of Redemption to the Holder of any Note designated for redemption as a whole or in part shall  not affect the validity of the proceedings for the redemption of any other Note.               (c)   Each Notice of Redemption shall specify:                     (i)   the Redemption Date;                     (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 Scheduled Trading Day immediately preceding the  Redemption Date (unless the Company fails to pay the Redemption Price, in which case a Holder  may convert such Notes until the Business Day immediately preceding the date on which the  Redemption Price has been paid or duly provided for);                     (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                                         81    





 






   of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be  issued.         A Notice of Redemption shall be irrevocable.               (d)   If fewer than all of the outstanding Notes are to be redeemed, the Trustee  shall select the Notes or portions thereof of a Global Note or the Notes in certificated form to be  redeemed (in principal amounts of $1,000 or integral multiples of $1,000 in excess thereof) by  lot or in accordance with the procedures at the Depositary. If any Note selected for partial  redemption is submitted for conversion in part after such selection, the portion of the Note  submitted for conversion shall be deemed (so far as may be possible) to be the portion selected  for redemption.         16.03 Payment of Notes Called for Redemption. (a) If any Notice of Redemption has  been given in respect of the Notes in accordance with Section 16.02, the Notes shall become due  and payable on the Redemption Date at the place or places stated in the Notice of Redemption  and at the applicable Redemption Price. On presentation and surrender of the Notes at the place  or places stated in the Notice of Redemption, the Notes shall be paid and redeemed by the  Company at the applicable Redemption Price.               (b)   Prior to the open of business on the Redemption Date, the Company shall  deposit with the Paying Agent or, if the Company or a Subsidiary of the Company is acting as  the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of cash  (in immediately available funds if deposited on the Redemption Date), sufficient to pay the  Redemption Price of all of the Notes to be redeemed on such Redemption Date. Subject to  receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the  Redemption Date for such Notes. The Paying Agent shall, promptly after such payment and upon  written demand by the Company, return to the Company any funds in excess of the Redemption  Price.         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         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.         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                                         82    





 






   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.         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 letter  box addressed (until another address is filed by the Company with the Trustee) to Tricida, Inc.,  7000 Shoreline Court, Suite 201, South San Francisco, CA 94080, Attention: Chief Financial  Officer. Any notice, direction, request or demand hereunder to the Trustee by any Holder or by  the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in  writing and delivered in person or by first-class mail (registered or certified, return receipt  requested), facsimile transmission (confirmed by delivery in Person or by first-class mail  (registered or certified, return receipt requested)) or guaranteed overnight courier at the  Corporate Trust Office, with a copy to the Trustee at 425 Walnut Street, Cincinnati, OH 45202,  Attention: Daniel Boyers, Vice President and Trust Officer, or such other means reasonably  acceptable to the Trustee.         The Trustee, by notice to the Company, may designate additional or different addresses  for subsequent notices or communications.         Any notice or communication delivered or to be delivered to a Holder of Physical Notes  shall be sent to each Holder at its address as it appears on the Note Register and shall be  sufficiently given to it if so sent 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 sent or  delivered, as the case may be, in the manner provided above, it is duly given, whether or not the  addressee receives it.         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 (WITHOUT  REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).         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                                          83    





 






   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  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.         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 Trustee shall be  entitled to receive: (a) an Officers’ Certificate in form reasonably satisfactory to the Trustee  stating that, in the opinion of the signers, all conditions precedent (including any covenants,  compliance with which constitutes a condition precedent), if any, provided for in this Indenture  relating to the proposed action have been complied with; and (b) an Opinion of Counsel in form  reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such  conditions precedent (including any covenants, compliance with which constitutes a condition  precedent) have been complied with.         Each Officers’ Certificate provided for, by or on behalf of the Company in this Indenture  and delivered to the Trustee with respect to compliance with this Indenture (other than the  Officers’ Certificates provided for in Section 4.08) shall include (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 as to whether all conditions precedent (including any covenants, compliance with which  constitutes a condition precedent), if any, provided for in this Indenture relating to the proposed  action have been complied with; and (d) a statement as to whether or not, in the judgment of  such person, such action is permitted by this Indenture and all such conditions precedent  (including any covenants, compliance with which constitutes a condition precedent) have been  complied with.         17.06 Legal Holidays. In any case where any Interest Payment Date, any Redemption  Date, any Fundamental Change Repurchase Date or the Maturity Date is not a Business Day,  then any action to be taken on such date need not be taken on such date, but may be taken on the  next succeeding Business Day with the same force and effect as if taken on such date, and no  interest shall accrue in respect of the delay.         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.                                         84    





 






         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.         17.09 Table of Contents, Headings, Etc. The table of contents and the titles and  headings of the articles and sections of this Indenture have been inserted for convenience of  reference only, are not to be considered a part hereof, and shall in no way modify or restrict any  of the terms or provisions hereof.         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.                                          85    





 






         If an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have  endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative  certificate of authentication in the following form:   __________________________,  as Authenticating Agent, certifies that this is one of the Notes described in the within-named  Indenture.   By:                                         Authorized Officer         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.         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.         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.         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.         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 Last Reported Sale Prices of the Common Stock, 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  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                                         86    





 






   independent verification. The Trustee will forward the Company’s calculations to any Holder of  Notes upon the written request of that Holder at the sole cost and expense of the Company.         17.16 USA PATRIOT Act. The parties hereto acknowledge that in accordance with  Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to  help fight the funding of terrorism and money laundering, is required to obtain, verify, and  record information that identifies each person or legal entity that establishes a relationship or  opens an account with the Trustee. The parties to this Indenture agree that they will provide the  Trustee with such information as it may request in order for the Trustee to satisfy the  requirements of the USA PATRIOT Act.                        [Remainder of page intentionally left blank]                                                  87    





 






                                                                                       IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed  as of the date first written above.                                             TRICIDA, INC.                                                                                          By:        /s/ Geoffrey M. Parker                                                Name:   Geoffrey M. Parker                                              Title:     CFO & EVP                                             Date:     May 22, 2020                                                                                                                                       U.S. BANK NATIONAL                                            ASSOCIATION, as Trustee                                                                                          By:        /s/ Daniel Boyers                                                     Name:   Daniel Boyers                                                            Title:     Vice President                                             Date:     May 22, 2020                                                                          SIGNATURE PAGE TO INDENTURE   





 






                                                                                                                  EXHIBIT A                                                                    [FORM OF FACE OF NOTE]                  [INCLUDE FOLLOWING LEGEND IF A GLOBAL NOTE]         [UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED  REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK  CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF  TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS  REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT  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 TRICIDA, INC. (THE “COMPANY”) THAT  IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR  ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF  (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER  PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY  SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE  REQUIRED BY APPLICABLE LAW, EXCEPT:               (A)   TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR               (B)   PURSUANT  TO   A  REGISTRATION  STATEMENT  WHICH  HAS  BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR                                         A-1    





 






               (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 RESERVES THE RIGHT TO REQUIRE THE  DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS  MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE  PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES  ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE  AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT.]         NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF  THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE  144 UNDER THE SECURITIES ACT) OF THE COMPANY DURING THE THREE  IMMEDIATELY PRECEDING MONTHS MAY OFFER, SELL, PLEDGE OR OTHERWISE  TRANSFER THIS SECURITY OR A BENEFICIAL INTEREST HEREIN UNLESS  PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE  UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM THE  REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IN A TRANSACTION  THAT RESULTS IN SUCH SECURITY OR COMMON STOCK, AS THE CASE MAY BE,  NO LONGER BEING A “RESTRICTED SECURITY” (AS DEFINED IN RULE 144 UNDER  THE SECURITIES ACT).                                                                    A-2    





 






                                   TRICIDA, INC.                                                           3.50% CONVERTIBLE SENIOR NOTE DUE 2027    No. [_____]                                             [Initially]1 $[_________]   CUSIP No. 89610F AA92         Tricida, 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.]3 [_______]4, or registered assigns, the principal sum [as set forth in the  “Schedule of Exchanges of Notes” attached hereto]5 [of $[ ]]6, which amount, taken together  with the principal amounts of all other outstanding Notes, shall not, unless permitted by the  Indenture, exceed $200,000,000 in the aggregate at any time, in accordance with the rules and  procedures of the Depositary, on May 15, 2027, and interest thereon as set forth below.         This Note shall bear interest at the rate of 3.50% per year from May 22, 2020, or from the  most recent date to which interest had been paid or provided for to, but excluding, the next  scheduled Interest Payment Date until May 15, 2027. Interest is payable semi-annually in arrears  on each May 15 and November 15, commencing on November 15, 2020, to Holders of record at  the close of business on the preceding May 1 and November 1 (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(e),  Section 4.06(f) or Section 6.03, and any express mention of the payment of Additional Interest in  any provision therein shall not be construed as excluding Additional Interest in those provisions  thereof where such express mention is not made.         Any Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes,  subject to the enforceability thereof under applicable law, from, and including, the relevant  payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid  by the Company, at its election, in accordance with Section 2.03(c) of the Indenture.                              1 Include if a global note.  2 This Note will be deemed to be identified by CUSIP No. [___] from and after such time when (i) 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  and (ii) this Note is identified by such CUSIP number in accordance with the applicable procedures of the  Depositary.  3 Include if a global note.  4 Include if a physical note.  5 Include if a global note.  6 Include if a physical note.                                        A-3    





 






         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 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 by the Company for that purpose. The Company  has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes  and its agency in the Borough of Manhattan, The City of New York, 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 (without regard to the conflicts of laws provisions thereof).         In the case of any conflict between this Note and the Indenture, the provisions of the  Indenture shall control and govern.         This Note shall not be valid or become obligatory for any purpose until the certificate of  authentication hereon shall have been signed 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.                                          TRICIDA, INC.                                                                              By:                                                                        Name:                                                                      Title:                                                                     Date:                                                                                                                                                    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 Officer                                   A-5                 





 






                                                                                                        [FORM OF REVERSE OF NOTE]                                                                           TRICIDA, INC.                                                           3.50% CONVERTIBLE SENIOR NOTE DUE 2027          This Note is one of a duly authorized issue of Notes of the Company, designated as its  3.50% Convertible Senior Notes due 2027 (the “Notes”), limited to the aggregate principal  amount of $200,000,000, all issued or to be issued under and pursuant to an Indenture dated as of  May 22, 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 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 (if applicable), the Redemption Price on any Redemption  Date (if applicable) 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.         Each Holder shall have the right 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                                          1    





 






   upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful  money or shares of Common Stock, as the case may be, herein prescribed.         The Notes are issuable in registered form without coupons in denominations of $1,000  principal amount and integral multiples thereof. At the office or agency designated by the  Company and 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 May 20, 2024 in  accordance with the terms and subject to the conditions specified in the Indenture. No sinking  fund is provided for the Notes.         Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s  option, to require the Company to repurchase for cash all of such Holder’s Notes or any portion  thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change  Repurchase Date at a price equal to the Fundamental Change Repurchase Price.         Subject to the provisions of the Indenture, the Holder hereof has the right, at its option,  during certain periods and upon the occurrence of certain conditions specified in the Indenture,  prior to the close of business on the Business Day immediately preceding the Maturity Date, to  convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash,  shares of Common Stock or a combination of cash and shares of Common Stock, at the  Company’s election, at the Conversion Rate specified in the Indenture, as adjusted from time to  time as provided in the Indenture.                                 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.                                                   2    





 






                                   SCHEDULE A7                                                               SCHEDULE OF EXCHANGES OF NOTES                                                                           TRICIDA, INC.                                                           3.50% CONVERTIBLE SENIOR NOTES DUE 2027          The initial principal amount of this Global Note is _______ DOLLARS ($[_________]).  The following increases or decreases in this Global Note have been made:                                              Principal amount of  Signature of           Amount of decrease Amount of increase this Global Note authorized signatory   Date of in principal amount in principal amount following such of Trustee or  exchange  of this Global Note  of this Global Note  decrease or increase  Custodian                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 7 Include if a global note.                                         3    





 






                                                                                                               ATTACHMENT 1                                                               [FORM OF NOTICE OF CONVERSION]    To:   U.S. Bank National Association  425 Walnut Street  Cincinnati, OH 45202  Attention: Daniel Boyers, Vice President and Trust Officer     The undersigned registered owner of this Note hereby exercises the option to convert this Note,        or the portion hereof (that is $1,000 principal amount or an integral multiple thereof)        below designated, into cash, shares of 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  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:                                         4    





 






                                            (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                                                                     5    





 






                                 ATTACHMENT 2                                                    [FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]    To:   U.S. Bank National Association        425 Walnut Street        Cincinnati, OH 45202        Attention: Daniel Boyers, Vice President and Trust Officer     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from        Tricida, Inc. (the “Company”) as to the occurrence of a Fundamental Change with        respect to the Company and specifying the Fundamental Change Repurchase Date and        requests and instructs the Company to pay to the registered holder hereof in accordance        with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount        of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple        thereof) below designated, and (2) if such Fundamental Change Repurchase Date does        not fall during the period after a 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 repaid (if less than all): $______,000   NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as  written upon the face of the Note in every particular without alteration or enlargement or any  change whatever.                                                                     6    





 






                                 ATTACHMENT 3                                                             [FORM OF ASSIGNMENT AND TRANSFER]          For value received ____________________________ hereby sell(s), assign(s) and  transfer(s) unto _________________ (Please insert social security or Taxpayer Identification  Number of assignee) the within Note, and hereby irrevocably constitutes and appoints  _____________________ attorney to transfer the said Note on the books of the Company, with  full power of substitution in the premises.         In connection with any transfer of the within Note occurring prior to the Resale  Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned  confirms that such Note is being transferred:     To Tricida, Inc. or a subsidiary thereof; or     Pursuant to a registration statement that has become or been declared effective under the     Securities Act of 1933, as amended; or     Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended;     or     Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended,     or any other available exemption from the registration requirements of the Securities Act of     1933, as amended.      Dated:                                                                                                                    Signature(s)                                                                                      Signature Guarantee   Signature(s) must be guaranteed by an  eligible Guarantor Institution (banks, stock  brokers, savings and loan associations and  credit unions) with membership in an approved  signature guarantee medallion program pursuant  to Securities and Exchange Commission  Rule 17Ad-15 if Notes are to be delivered, other  than to and in the name of the registered holder.                                          7    





 






         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.                                          8