Exhibit 4.1


 


FLUIDIGM CORPORATION


 


AND


 


U.S. BANK NATIONAL ASSOCIATION,


 


as Trustee


 


INDENTURE


 


Dated as of November 22, 2019


 


5.25% Convertible Senior Notes due 2024


 




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TABLE OF CONTENTS


 




	Article 1. Definitions	1
	Section 1.01.   Definitions	1
	Section 1.02.   References to Interest	11
	Article 2. Issue, Description, Execution, Registration and Exchange of Notes	11
	Section 2.01.   Designation and Amount	11
	Section 2.02.   Form of Notes	11
	Section 2.03.   Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	12
	Section 2.04.   Execution, Authentication and Delivery of Notes	14
	Section 2.05.   Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	14
	Section 2.06.   Mutilated, Destroyed, Lost or Stolen Notes	21
	Section 2.07.   Temporary Notes	22
	Section 2.08.   Cancellation of Notes Paid, Converted, Etc.	22
	Section 2.09.   CUSIP Numbers	23
	Section 2.10.   Additional Notes; Repurchases	23
	Article 3. Satisfaction and Discharge	24
	Section 3.01.   Satisfaction and Discharge	24
	Article 4. Particular Covenants of the Company	24
	Section 4.01.   Payment of Principal and Interest	24
	Section 4.02.   Maintenance of Office or Agency	24
	Section 4.03.   Appointments to Fill Vacancies in Trustee’s Office	25
	Section 4.04.   Provisions as to Paying Agent	25
	Section 4.05.   Existence	26
	Section 4.06.   Rule 144A Information Requirement and Annual Reports	26
	Section 4.07.   Stay, Extension and Usury Laws	28
	Section 4.08.   Compliance Certificate; Statements as to Defaults	29
	Section 4.09.   Further Instruments and Acts	29
	Article 5. Lists of Holders and Reports by the Company and the Trustee	29
	Section 5.01.   Lists of Holders	29
	Section 5.02.   Preservation and Disclosure of Lists	29



 


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	Article 6. Defaults and Remedies	30
	Section 6.01.   Events of Default	30
	Section 6.02.   Acceleration; Rescission and Annulment	31
	Section 6.03.   Additional Interest	32
	Section 6.04.   Payments of Notes on Default; Suit Therefor	33
	Section 6.05.   Application of Monies Collected by Trustee	34
	Section 6.06.   Proceedings by Holders	35
	Section 6.07.   Proceedings by Trustee	36
	Section 6.08.   Remedies Cumulative and Continuing	36
	Section 6.09.   Direction of Proceedings and Waiver of Defaults by Majority of Holders	37
	Section 6.10.   Notice of Defaults	37
	Section 6.11.   Undertaking to Pay Costs	37
	Article 7. Concerning the Trustee	38
	Section 7.01.   Duties and Responsibilities of Trustee	38
	Section 7.02.   Reliance on Documents, Opinions, Etc.	40
	Section 7.03.   No Responsibility for Recitals, Etc.	41
	Section 7.04.   Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes	41
	Section 7.05.   Monies and Shares of Common Stock to Be Held in Trust	41
	Section 7.06.   Compensation and Expenses of Trustee	41
	Section 7.07.   Officers’ Certificate as Evidence	42
	Section 7.08.   Eligibility of Trustee	43
	Section 7.09.   Resignation or Removal of Trustee	43
	Section 7.10.   Acceptance by Successor Trustee	44
	Section 7.11.   Succession by Merger, Etc.	44
	Section 7.12.   Trustee’s Application for Instructions from the Company	45
	Article 8. Concerning the Holders	45
	Section 8.01.   Action by Holders	45
	Section 8.02.   Proof of Execution by Holders	46
	Section 8.03.   Who Are Deemed Absolute Owners	46
	Section 8.04.   Company-Owned Notes Disregarded	46
	Section 8.05.   Revocation of Consents; Future Holders Bound	47
	Article 9. Holders’ Meetings	47
	Section 9.01.   Purpose of Meetings	47
	Section 9.02.   Call of Meetings by Trustee	48
	Section 9.03.   Call of Meetings by Company or Holders	48
	Section 9.04.   Qualifications for Voting	48
	Section 9.05.   Regulations	48
	Section 9.06.   Voting	49
	Section 9.07.   No Delay of Rights by Meeting	49



 


 


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	Article 10. Supplemental Indentures	50
	Section 10.01.   Supplemental Indentures Without Consent of Holders	50
	Section 10.02.   Supplemental Indentures with Consent of Holders	51
	Section 10.03.   Effect of Supplemental Indentures	52
	Section 10.04.   Notation on Notes	52
	Section 10.05.   Evidence of Compliance of Supplemental Indenture and Enforceability of the Supplemental Indenture
to Be Furnished Trustee	52
	Article 11. Consolidation, Merger, Sale, Conveyance and Lease	52
	Section 11.01.   Company May Consolidate, Etc. on Certain Terms	52
	Section 11.02.   Successor Corporation to Be Substituted	53
	Section 11.03.   Opinion of Counsel to Be Given to Trustee	53
	Article 12. Immunity of Incorporators, Stockholders, Officers and Directors	54
	Section 12.01.   Indenture and Notes Solely Corporate Obligations	54
	Article 13. Delayed Delivery Provision	54
	Section 13.01.   Delayed Delivery Provision	54
	Article 14. Conversion of Notes	55
	Section 14.01.   Conversion Privilege	55
	Section 14.02.   Conversion Procedure; Settlement Upon Conversion	55
	Section 14.03.   Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with a Make-Whole
Fundamental Change or Notice of Early Company Conversion	58
	Section 14.04.   Adjustment of Conversion Rate	60
	Section 14.05.   Adjustments of Prices	69
	Section 14.06.   Shares to Be Fully Paid	70
	Section 14.07.   Effect of Recapitalizations, Reclassifications and Changes of the Common Stock	70
	Section 14.08.   Certain Covenants	72
	Section 14.09.   Responsibility of Trustee	72
	Section 14.10.   Notice to Holders Prior to Certain Actions	73
	Section 14.11.   Stockholder Rights Plans	74
	Section 14.12.   Exchange in Lieu of Conversion	74
	Section 14.13.   Company Conversion Option	75
	Article 15. Repurchase of Notes at Option of Holders	77
	Section 15.01.   Intentionally Omitted	77
	Section 15.02.   Repurchase at Option of Holders Upon a Fundamental Change	77
	Section 15.03.   Withdrawal of Fundamental Change Repurchase Notice	79
	Section 15.04.   Deposit of Fundamental Change Repurchase Price	80
	Section 15.05.   Covenant to Comply with Applicable Laws Upon Repurchase of Notes	80



 


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	Article 16. No Optional Redemption	81
	Section 16.01.   No Optional Redemption	81
	Article 17. Miscellaneous Provisions	81
	Section 17.01.   Provisions Binding on Company’s Successors	81
	Section 17.02.   Official Acts by Successor Corporation	81
	Section 17.03.   Addresses for Notices, Etc.	81
	Section 17.04.   Governing Law; Jurisdiction	82
	Section 17.05.   Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	82
	Section 17.06.   Legal Holidays	83
	Section 17.07.   No Security Interest Created	83
	Section 17.08.   Benefits of Indenture	83
	Section 17.09.   Table of Contents, Headings, Etc	83
	Section 17.10.   Authenticating Agent	84
	Section 17.11.   Execution in Counterparts	85
	Section 17.12.   Severability	85
	Section 17.13.   Waiver of Jury Trial	85
	Section 17.14.   Force Majeure	85
	Section 17.15.   Calculations	85
	Section 17.16.   USA PATRIOT Act	86


 




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INDENTURE dated as of November 22, 2019
between FLUIDIGM CORPORATION, a Delaware corporation, as issuer (the “Company,”
as more fully set forth in Section 1.01) and U.S. Bank National Association, a national
banking association, as trustee (the “Trustee,” as more fully set forth in Section 1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the issuance of its 5.25% Convertible Senior Notes due 2024 (the “Notes”), initially
in an aggregate principal amount not to exceed $55,000,000, 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


 


Section
1.01.           
Definitions


 


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


 


“1% Exception”
shall have the meaning specified in Section 14.04(j).


 




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


 


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


 


“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person.  For the purposes of this definition, “control,” when used with
respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.  Notwithstanding anything to the contrary herein,
the determination of whether one Person is an “Affiliate” of another Person for purposes of this Indenture shall
be made based on the facts at the time such determination is made or required to be made, as the case may be, hereunder.


 


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


 


“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.


 


“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).


 


“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.


 




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“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 (a) the Company’s Chief Executive Officer, Chief Financial Officer, President,
Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word or words added
before or after the title “Vice President”) and (b) any such other Officer designated in clause (a) of this definition
or the Company’s Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary, and delivered to the Trustee.


 


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


 


“Conversion
Consideration” shall have the meaning specified in Section 14.12.


 


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


 


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


 


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


 


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


 


“Corporate Trust
Office” means the designated office of the Trustee at which at any time this Indenture shall be administered, which office
at the date hereof is located at 633 West Fifth Street, 24th Floor, Los Angeles, CA 90071, Attention: P. Oswald (Fluidigm
Corporation Administrator), or such other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the designated corporate trust office of any successor trustee (or such other address as such successor trustee may
designate from time to time by notice to the Holders and the Company).


 


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


 


“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 Fundamental Change Repurchase Price, principal and interest)
that are payable but are not punctually paid or duly provided for.


 






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“delivered”
with respect to any notice to be delivered, given or mailed to a Holder pursuant to this Indenture, shall mean notice (x) given
to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic
mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Note) or (y) mailed to such
Holder by first class mail, postage prepaid, at its address as it appears on the Note Register, in each case in accordance with
Section 17.03. Notice so “delivered” shall be deemed to include any notice to be “mailed” or “given,”
as applicable, under this Indenture.


 


“Depositary”
means, with respect to each Global Note, the Person specified in Section 2.05(b) 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(c), except that, as used in Section 14.04 and Section 14.05, “Effective
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable
market, regular way, reflecting the relevant share split or share combination, as applicable.


 


“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.  For the avoidance of doubt, any alternative trading convention on the applicable exchange or market in respect
of shares of the Common Stock under a separate ticker symbol or CUSIP number will not be considered “regular way” for
the purposes of this definition and the “Effective Date” definition.


 


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


 


“Exchange Election”
shall have the meaning specified in Section 14.12.


 


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


 


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


 


“Form of Note”
means the “Form of Note” attached hereto as Exhibit A.


 


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


 




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


 


		(a)	a “person” or “group” within the meaning of Section 13(d) of the Exchange
Act, other than the Company, its direct or indirect Wholly Owned Subsidiaries and the employee benefit plans of the Company and
its Wholly Owned Subsidiaries, files a Schedule TO (or any successor schedule) or any schedule, form or report under the Exchange
Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3
under the Exchange Act, of the Common Equity of the Company representing more than 50% of the voting power of the Common Equity
of the Company; provided, that no person or group shall be deemed to be the beneficial owner of any securities tendered
pursuant to a tender or exchange offer made by or on behalf of such “person” or “group” until such tendered
securities are accepted for purchase or exchange under such offer.



 


		(b)	the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other
than changes resulting from a subdivision, a combination or solely a change in par value thereof) 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 related transactions of all or substantially all of
the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s
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 (relative to each other) as such ownership immediately prior to such
transaction shall not be a Fundamental Change pursuant to this clause (b);



 


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



 


		(d)	the Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on
any of The New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors);



 






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provided, however,
that a transaction or transactions described in clause (a) and clause (b) above shall not constitute a Fundamental Change, if
at least 90% of the consideration received or to be received by the common stockholders of the Company, excluding cash
payments for fractional shares or pursuant to statutory appraisal rights, in connection with such transaction or transactions
consists of shares of common stock or other Common Equity 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 or pursuant
to statutory appraisal rights (subject to the provisions of Section 14.02(a)).  If any transaction in which the
Common Stock is replaced by the common stock or common equity securities of another entity occurs, following completion of
any related Make-Whole Fundamental Change Period (or, in the case of a transaction that would have been a Fundamental Change
or a Make-Whole Fundamental Change but for the proviso immediately following clause (d) of this definition, following
the effective date of such transaction) references to the Company in this definition shall instead be references to such
other entity.  For purpose of this definition of “Fundamental Change,” any transaction that
constitutes a Fundamental Change pursuant to both clause (a) and clause (b) of this definition (without giving effect to the proviso
to clause (b)) shall be deemed a Fundamental Change solely under clause (b) of this definition (subject to the proviso
to clause (b)).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Interest Payment
Date” means each June 1 and December 1 of each year, beginning on June 1, 2020 (or such other date as may be set forth
in the certificate representing the applicable Note).


 


“Investor”
means Indaba Capital Fund, L.P.


 






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“Last
Reported Sale Price” of the Common Stock (or other security for which a closing sale price must be determined) 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
(or such other security) is traded.  If the Common Stock (or such other security) 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 (or such other security) 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 (or such other security)
is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and
ask prices per share of the Common Stock (or such other security) on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for this purpose.  The “Last
Reported Sale Price” shall be determined without regard to after-hours trading or any other trading outside of the
regular trading session hours.


 


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


 


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


 


“Market Disruption
Event” means, for the purposes of determining amounts due upon conversion, (a) a failure by the primary U.S. national
or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during
its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading
Day for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise)
in the Common Stock or in any options contracts or futures contracts on any U.S. exchange relating to the Common Stock.


 


“Maturity Date”
means December 1, 2024.


 


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


 


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


 


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


 


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


 


“Offering Memorandum”
means the preliminary offering memorandum dated November 20, 2019, as supplemented by the related pricing term sheet dated November
20, 2019, relating to the offering and sale of the Notes.


 


“Officer”
means, with respect to the Company, the President, the Chief Executive Officer, the Chief Financial Officer, the Treasurer, the
Secretary, any Executive or Senior Vice President or any Vice President (whether or not designated by a number or numbers or word
or words added before or after the title “Vice President”).


 


“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 the Treasurer, any Assistant
Treasurer, the Secretary, 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.


 






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“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 acceptable to the Trustee, 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.


 


“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 cancelled by the Trustee or accepted by the Trustee for cancellation;



 


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



 


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



 


		(d)	Notes converted pursuant to Article 14 and
required to be cancelled pursuant to Section 2.08; and



 


		(e)	Notes repurchased pursuant to Article 15 and cancelled pursuant to Section 2.08.



 


“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.


 


“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.


 






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“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).


 


“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 15 or November 15 (whether or not such day is a Business
Day) immediately preceding the applicable June 1 or December 1 Interest Payment Date, respectively.


 


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


 


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


 


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


 


“Restrictive
Legend” shall have the meaning specified in Section 2.05(c).


 


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


 


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


 


“Scheduled Trading
Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange
or market on which the Common Stock is 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.


 


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


 


“Side Letter”
means that certain letter agreement, dated as of November 20, 2019, between the Company and the Investor.


 




    9


     


    

 


“Significant
Subsidiary” means a Subsidiary of the Company that meets the definition of “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X promulgated by the Commission; provided that in the case of a Subsidiary that
meets the criteria of clause (3) thereof but not clause (1) or (2) thereof, such Subsidiary shall not be a “Significant
Subsidiary” unless such Subsidiary’s income (loss) from continuing operations before income taxes, extra items
and cumulative effect of changes in accounting principles exclusive of amounts attributable to any non-controlling interests for
the last completed fiscal year prior to the date of such determination exceeds $10 million.


 


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


 


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


 


“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of
the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at
the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of
such Person; or (iii) one or more Subsidiaries of such Person.


 


“Successor Company”
shall have the meaning specified in Section 11.01(a).


 


“Trading Day”
means a day on which (i) there is no Market Disruption Event and (ii) 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 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 traded;
provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day”
means a Business Day.


 


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


 


“Trigger Event”
shall have the meaning specified in Section 14.04(c).


 


“Trust Indenture
Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture;
provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust
Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.


 


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


 


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


 


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


 




    10


     


    

 


“VWAP”
means, for any Trading Days, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP”
on Bloomberg page “FLDM <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 reasonably determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm
retained for this purpose by the Company).  The “VWAP” shall be determined without regard to after-hours
trading or any other trading outside of the regular trading session trading hours.


 


“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%”.


 


Section
1.02.           References to Interest.


 


Unless the context
otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture shall be deemed to include Additional
Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of Section 4.06(d), Section 4.06(e)
and Section 6.03. Unless the context otherwise requires, any express mention of Additional Interest in any provision hereof shall
not be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.


 


Article
2.

Issue, Description, Execution, Registration and Exchange of Notes


 


Section
2.01.           Designation and Amount.


 


The Notes shall be
designated as the “5.25% Convertible Senior Notes due 2024.” The aggregate principal amount of Notes that may be authenticated
and delivered under this Indenture is initially limited to $55,000,000, 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.


 


Section
2.02.           Form of Notes


 


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


 


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


 






    11


     


    

 


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


 


Section
2.03.           Date and Denomination of Notes; Payments of Interest and Defaulted Amounts.


 


(a)         The
Notes shall be issuable in registered form without coupons in denominations of $1,000 principal amount and 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 continental United States, which shall
initially be the Corporate Trust Office, and (y) in the case of any Global Note, shall be payable by wire transfer of
immediately available funds to the account of the Depositary or its nominee.  The Company shall pay (or cause the
Paying Agent to pay) interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal
amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it appears in the Note
Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000, either by
check mailed to each Holder or, upon application by such a Holder to the Note Registrar (containing the requisite information
for the Trustee or Paying Agent to make such wire transfer) not later than the relevant Regular Record Date, by wire transfer
in immediately available funds to that Holder’s account within the United States 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.  


 






    12


     


    

 


(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 in writing of such special record
date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Amounts and the special record date therefor to be delivered to each Holder at its address as it appears in the Note Register,
or by electronic means to the Depositary in the case of Global Notes not less than 10 days prior to such special record date.  Notice
of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered, such Defaulted
Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close
of business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).
The Trustee shall have no responsibility whatsoever for the calculation of the Defaulted Amounts.


 


(ii)         The
Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such
notice as may be required by such exchange or automated quotation system, if, after written notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the
Trustee.


 






    13


     


    

 


Section
2.04.                 
Execution, Authentication and Delivery of Notes.


 


The Notes shall be
signed in the name and on behalf of the Company by the manual or facsimile signature of its Chief Executive Officer, President,
Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.


 


At any time and from time to time after
the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes, without any further action by the Company hereunder; provided that the Trustee
shall be entitled to receive an Officers’ Certificate and an Opinion of Counsel of the Company with respect to the issuance,
authentication and delivery of such Notes, subject to customary qualifications with respect to any such Opinion of Counsel.


 


Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth on the Form of Note attached as Exhibit A hereto, executed manually
by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section 17.10),
shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose.  Such certificate by the
Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated
has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.


 


In case any Officer of the Company who
shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated and
delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed
of as though the Person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf
of the Company by such Persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although
at the date of the execution of this Indenture any such Person was not such an Officer.


 


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


 


 (a) The
Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any
other office or agency of the Company designated pursuant to Section 4.02, the
 “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes.  Such register shall be in written form or in any
form capable of being converted into written form within a reasonable period of time.  The Trustee is hereby
initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as
herein provided.  The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.


 






    14


     


    

 


Upon surrender for registration of transfer
of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.05, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture.


 


Notes may be exchanged for other Notes
of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such
office or agency maintained by the Company pursuant to Section 4.02.  Whenever any Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled
to receive, bearing registration numbers not contemporaneously outstanding.


 


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


 


No service charge shall be imposed by the
Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer
of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax 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 converted
pursuant to a Company Conversion Option.  


 


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.


 


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


 






    15


     


    

 


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


 


Until the date (the “Resale Restriction
Termination Date”) that is the later of (1) the date that is one year after the last date of original issuance of the
Notes, or such 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(d), if applicable) shall bear a legend in substantially the following form (the “Restrictive Legend”)
(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 FLUIDIGM CORPORATION (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:


 






    16


     


    

 


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


 


(B)             
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF
SUCH TRANSFER, OR


 


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


 


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


 


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


 


NO AFFILIATE (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST
HEREIN.


 


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


 


Any Note (or security issued in
exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their
terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared
effective under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been
sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the
Securities Act, may, upon surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this
Section 2.05, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the
Restrictive Legend required by this Section 2.05(c) and shall not be
assigned a restricted CUSIP number. The Restrictive Legend set forth above and affixed on any Note will be deemed, in
accordance with the terms of the certificate representing such Note, to be removed therefrom upon the Company’s
delivery to the Trustee of written notice to such effect, without further action by the Company, the Trustee, the Holder(s)
thereof or any other Person; at such time, such Note will be deemed to be assigned an unrestricted CUSIP number as provided
in the certificate representing such Note, it being understood that the Depositary of any Global Note may require a
mandatory exchange or other process to cause such Global Note to be identified by an unrestricted CUSIP number in the
facilities of such Depositary. Without limiting the generality of any other provision of this Indenture, the Trustee will be
entitled to receive an instruction letter, Officers’ Certificate and Opinion from the Company before taking any action
to effect any such mandatory exchange or other process.


 






    17


     


    

 


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 paragraph have been satisfied, and, upon such instruction, the
Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the Restrictive
Legend specified in this Section 2.05(b) 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(b)), a Global Note may not be transferred as a whole or
in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary
and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately
succeeding paragraph.


 


The Depositary shall be a clearing agency
registered under the Exchange Act.  The Company initially appoints The Depository Trust Company to act as Depositary
with respect to each Global Note.  Initially, each Global Note shall be issued to the Depositary, registered in the name
of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.


 


If (i) the Depositary notifies the Company
at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary
is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a
successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is
continuing and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company
shall 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 cancelled.


 




    18


     


    

 


Physical Notes issued in exchange for all
or a part of the Global Note pursuant to this Section 2.05(b) 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, cancelled, repurchased or transferred, such Global Note shall be, upon receipt thereof, cancelled 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, cancelled, repurchased
or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of
such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be
made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.


 


None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.  None of the Company, the Trustee or any agent of the Company or the Trustee
shall have any responsibility or liability for any act or omission of the Depositary.


 


(c)              
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 been transferred pursuant to a registration
statement that has become or been declared effective under the Securities Act and that continues to be effective at the time of
such transfer, or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under
the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the Trustee and any transfer agent
for the Common Stock):


 


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


 






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(2)          AGREES FOR THE BENEFIT OF FLUIDIGM CORPORATION (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 THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF
SUCH TRANSFER, OR


 


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


 


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


 


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


 


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(d).


 






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(d)             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 transferor shall provide or cause to
be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations,
including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may rely
on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.


 


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


 


Section
2.06.           Mutilated, Destroyed, Lost or Stolen Notes.


 


 In case any
Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its written request
the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note, bearing a registration
number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution
for the Note so destroyed, lost or stolen.  In every case the applicant for a substituted Note shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each
of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating
agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.


 


The Trustee or such authenticating
agent may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the
Trustee, the Company and, if applicable, such authenticating agent may require.  No service charge shall be imposed
by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the 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.


 






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Every substitute Note issued pursuant to
the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall
be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.  To the extent permitted by law, all Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, 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, conversion or repurchase
of negotiable instruments or other securities without their surrender.


 


Section
2.07.           Temporary Notes.


 


 Pending the
preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall,
upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).  Temporary Notes
shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions,
insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company.  Every
such temporary Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as the Physical Notes.  Without unreasonable
delay, the Company shall execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global
Note) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office
or agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and
deliver in exchange for such temporary Notes an equal aggregate principal amount of Physical Notes.  Such exchange shall
be made by the Company at its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated
and delivered hereunder.


 


Section
2.08.           Cancellation of Notes Paid, Converted, Etc.


 


The Company
shall cause the Note Registrar, Paying Agent, Conversion Agent (if other than the Trustee) or any other person to forward to
the Trustee all Notes surrendered for the purpose of payment, repurchase, registration of transfer or exchange or
conversion.  All Notes delivered to the Trustee shall be cancelled promptly by it. Except for any Notes surrendered
for registration of transfer or exchange, or as otherwise expressly permitted by any of the provisions of this Indenture, no
Notes shall be authenticated in exchange for any Notes surrendered to the Trustee for cancellation.  The Trustee
shall dispose of cancelled Notes in accordance with its customary procedures.  


 






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Section
2.09.           CUSIP Numbers.


 


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


 


Section
2.10.           Additional Notes; Repurchases.


 


The Company may, without
the consent of, or notice to, the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes hereunder
with the same terms as the Notes initially issued hereunder (other than differences in the issue date, the issue price and interest
accrued prior to the issue date of such additional Notes and, if applicable, restrictions on transfer in respect of such additional
Notes) 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 securities law purposes, such additional Notes shall have one
or more separate CUSIP numbers.  The Notes initially issued hereunder and any additional Notes shall rank equally and
ratably and shall be treated as a single series for all purposes under this Indenture (except to the extent set forth in the immediately
preceding sentence).  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 without the consent of Holders, 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 may, at its option and to the extent permitted by applicable
law, reissue, resell or surrender to the Trustee for cancellation in accordance with Section 2.08 any Notes that the Company may
repurchase, in the case of a reissuance or resale, so long as such Notes do not constitute “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act upon such reissuance or resale.  Any Notes that the Company
may repurchase shall be considered outstanding under this Indenture (except for voting purposes as set forth in Section 8.04)
unless and until such time the Company surrenders such Notes to the Trustee for cancellation and, upon receipt of a Company Order,
the Trustee shall cancel all Notes so surrendered in accordance with Section 2.08.


 






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Article
3.

Satisfaction and Discharge


 


Section
3.01.           Satisfaction
and Discharge.


 


This Indenture
and the Notes shall upon request of the Company contained in an Officers’ Certificate cease to be of further effect, and
the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction
and discharge of this Indenture and the Notes, 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 irrevocably deposited with the Trustee or
delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Fundamental
Change Repurchase Date, upon conversion or otherwise, cash or shares of Common Stock (as applicable, solely to satisfy the Company’s
Conversion Obligation), sufficient (accompanied by an opinion of a nationally recognized firm of independent public accountants)
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 and the Notes have been complied with.  Notwithstanding
the satisfaction and discharge of this Indenture and the Notes, the obligations of the Company to the Trustee under Section 7.06
shall survive.


 


Article
4.

Particular Covenants of the Company


 


Section
4.01.           Payment of Principal and Interest.


 


The Company
covenants and agrees that it will cause to be paid the principal (including the 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.


 


Section
4.02.           Maintenance of Office or Agency.


 


 The Company
will maintain in the continental United States 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 at the
Corporate Trust Office in the continental United States of America as a place where Notes may be presented for payment or for registration
of transfer.


 


The Company may also from time to
time designate as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the continental
United States 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.


 






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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 continental United States, where Notes may be surrendered for registration of transfer or exchange or for presentation
for payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served; provided that the Corporate Trust Office shall not be a place for service of legal process on the Company.  


 


Section
4.03.           Appointments to Fill Vacancies in Trustee’s Office.


 


The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.09,
a Trustee, so that there shall at all times be a Trustee hereunder.


 


Section
4.04.           Provisions as to Paying Agent.


 


(a)             If the
Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 4.04:


 


(i)               that it will hold all sums held by it as such agent for the payment of the principal (including the Fundamental Change Repurchase
Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders of the Notes;


 


(ii)             that
it will give the Trustee prompt written notice of any failure by the Company to make any payment of the principal (including the
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 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 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 in writing of any failure to take such action; provided that if such deposit is made on the due date, such deposit
must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.


 






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(b)             If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the
Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate
and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the
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 Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes
when the same shall become due and payable.


 


(c)             Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining
a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums
or amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to
be held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to
the Trustee, the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or
amounts. Upon the occurrence of any event specified in Section 6.01(h) or Section 6.01(i), the Trustee shall automatically become
the Paying Agent.


 


(d)             Subject to applicable escheatment laws and any money and shares of Common Stock deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal (including 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 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 Trustee shall have no further liability
with respect to such funds; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money and shares of Common
Stock, and all liability of the Company as trustee thereof, shall thereupon cease.


 


Section
4.05.           Existence.


 


Subject to
Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence.


 


Section
4.06.           Rule 144A Information Requirement and Annual Reports.


 


(a)              
At any
time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long as any of the Notes or any
shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, 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.


 






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(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 (excluding any such information, documents or reports, or portions thereof, subject to confidential
treatment and any correspondence with the Commission) that the Company is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 or any successor rule under the Exchange
Act).  Any such document or report that the Company files with the Commission via the Commission’s EDGAR system
(or any successor thereto) shall be deemed to be filed with the Trustee for purposes of this Section 4.06(b) at the time such documents
are filed via the EDGAR system (or any successor thereto), it being understood that the Trustee shall not be responsible for determining
whether such filings have been made or for their timeliness or their content.  


 


(c)              
Delivery of the reports, information and documents described in subsection (b) above to the Trustee is for informational
purposes only, and the information and the Trustee’s receipt of the foregoing shall not constitute constructive notice of
any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officers’ Certificate).
The Trustee shall have no obligation whatsoever to monitor or confirm, on a continuing basis or otherwise, the Company’s
compliance with its covenants or with respect to any reports or other documents filed with the Commission via the EDGAR system
(or any successor thereto) or any other website, or to participate in any conference calls.


 


(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 have been 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 have been 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(d), documents or reports that the Company is required to “file” with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act does not include documents or reports that the Company furnishes to the Commission pursuant
to Section 13 or 15(d) of the Exchange Act.  


 






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(e)               If,
and for so long as, the Restrictive Legend on the Notes specified in Section 2.05(b) has not been removed (or deemed
removed as provided in Section 2.05(b)), 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 have been
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) 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 for each day from, and including, such 380th day, until the Restrictive
Legend on the Notes has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP number
and the Notes are freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that
have been 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. The Restrictive Legend on the Notes shall be
deemed removed pursuant to the terms of the Indenture as provided in Section 2.05(b), and, at such time, the Notes will,
pursuant to, and subject to the provisions of, such Section, be deemed assigned an unrestricted CUSIP number. However, for
the avoidance of doubt, Global Notes will continue to bear Additional Interest pursuant to this paragraph until such time as
they are identified by an unrestricted CUSIP in the facilities of the Depositary or any successor depositary for the Notes,
as a result of completion of the Depositary’s mandatory exchange process or otherwise.


 


(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)              
Subject to the immediately succeeding sentence, the Additional Interest that is payable in accordance with Section 4.06(d)
or Section 4.06(e) shall be in addition to, and not in lieu of, any Additional Interest that may be payable as a result of the
Company’s election pursuant to Section 6.03. Notwithstanding the foregoing, in no event shall Additional Interest with respect
to the Notes payable as a result of the Company’s failure 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 any grace period
provided by Rule 12b-25 or any successor rule under the Exchange Act), as set forth in under Section 4.06(d), together with any
Additional Interest that may accrue at the Company’s election pursuant to Section 6.03, 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.


 


(h)              
If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver
to the Trustee an 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.


 


Section
4.07.           Stay, Extension and Usury Laws.


 


The Company
covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or
forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this
Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been
enacted.


 






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Section
4.08.           Compliance Certificate; Statements as to Defaults.


 


The Company
shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year
ending on December 31, 2019) 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 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; provided that no notice is required if the event that would constitute a Default has been cured or waived before
the date on which the Company is required to deliver such notice.


 


Section
4.09.           Further Instruments and Acts.


 


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


 


Article
5.

Lists of Holders and Reports by the Company and the Trustee


 


Section
5.01.           Lists
of Holders.


 


The Company
covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more than 15 days after
each January 15 and July 15 in each year beginning with January 15, 2020, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request
in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably
request in order to so provide any such notices) prior to the time such information is furnished, except that no such list need
be furnished so long as the Trustee is acting as Note Registrar.


 


Section
5.02.                 
Preservation and Disclosure of Lists.


 


The Trustee
shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its
capacity as Note Registrar, if so acting.  The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.


 






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Article
6.

Defaults and Remedies


 


Section
6.01.           Events of Default.


 


Each of the
following events shall be an “Event of Default” with respect to the Notes:


 


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


 


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


 


(c)              
failure by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise
of a Holder’s conversion right or a Company Conversion Option and such failure continues for a period of three Business Days;


 


(d)              
failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c);


 


(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 aggregate principal
amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the
Notes or this Indenture;


 


(g)              
default by the Company or any 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 $7.5 million (or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether
such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and
payable prior to its stated maturity or (ii) constituting a failure to pay the principal of any such indebtedness when due and
payable at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise and in the case of clauses
(i) and (ii), such acceleration shall not, after the expiration of any applicable grace period, have been rescinded or annulled
or such failure to pay or default shall not have been cured or waived, or such indebtedness shall not have been paid or discharged,
as the case may be, within 30 days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders
of at least 25% in aggregate principal amount of Notes then outstanding in accordance with this Indenture;


 






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


 


(i)                
an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case
or other proceeding shall remain undismissed and unstayed for a period of 30 consecutive days.


 


Section
6.02.           Acceleration; Rescission and Annulment.


 


If one or more Events
of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default
specified in Section 6.01(h) or Section 6.01(i) with respect to the Company), unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding determined in accordance with Section 8.04, by written notice in writing to the Company (and to the Trustee if given
by Holders), may declare 100% of the principal of, and accrued and unpaid interest, if any, on, 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(h) or Section 6.01(i) with respect to the Company occurs and is continuing, 100% of the principal of, and accrued and unpaid
interest on, the Notes shall automatically become 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 continuing Default or Event of Default resulting from (i) the nonpayment of the principal (including
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.


 






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Section
6.03.           Additional Interest.


 


Notwithstanding anything
in this Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for an Event of Default relating
to the Company’s failure to comply with its obligations as set forth in Section 4.06(b) shall,
for the first 360 days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional
Interest on the Notes at a rate equal to 0.25% per annum of the principal amount of the Notes outstanding for each day during
the first 180 days after the occurrence of such Event of Default and 0.50% per annum of the principal amount of the Notes outstanding
from the 181st day until the 360th day after the occurrence of such Event of Default during which such Event of Default is continuing.
Additional Interest payable pursuant to this Section 6.03 shall be in addition to, not in lieu of, any Additional Interest payable
pursuant to Section 4.06(d) or Section 4.06(e), subject to the second immediately succeeding paragraph. 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 361st day after such Event of Default (if the Event of Default relating to the Company’s failure to comply with its obligations
set forth in Section 4.06(b) is not cured or waived in accordance with this Indenture prior to such 361st 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 set forth in Section 4.06(b).  In the event the Company does not elect to pay Additional
Interest following an Event of Default in accordance with this Section 6.03 or the Company elected to make such payment but does
not pay the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.


 


In order to elect to pay Additional Interest
as the sole remedy during the first 360 days after the occurrence of any Event of Default described in the immediately preceding
paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election in writing prior
to the beginning of such 360-day period.  Upon the Company’s failure to timely give such notice, the Notes shall
be immediately subject to acceleration as provided in Section 6.02.


 






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In no event shall Additional Interest payable
at the Company’s election for failure to comply with its reporting obligations as set forth in Section 4.06(b),
together with any Additional Interest that may accrue pursuant to Section 4.06(d) 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 any grace period provided by Rule 12b-25 or any successor rule under
the Exchange Act), accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of the events
or circumstances giving rise to the requirement to pay such Additional Interest.


 


Section
6.04.           Payments of Notes on Default; Suit Therefor.


 


If an Event
of Default described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall, upon demand of the Trustee, pay
to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and
interest, if any, with interest on any overdue principal and interest, if any, at the rate borne by the Notes at such time and,
in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06.  If
the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment
or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.


 


In the event there shall be pending
proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of
the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company
or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings
relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions
of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in
case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions
as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due to the Trustee under Section 7.06; and any receiver, assignee
or trustee in 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.


 






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


 


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


 


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


 


In case the Trustee shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of any waiver
pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject to any determination
in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.


 


Section
6.05.           Application of Monies Collected by Trustee.


 


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


 


First, to the payment of all amounts
due the Trustee under Section 7.06;


 


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;


 






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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 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 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 Fundamental
Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and


 


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


 


Section
6.06.           Proceedings by Holders.


 


Except to
enforce the right to receive payment of principal (including, if applicable, the 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 reasonably satisfactory to it 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


 






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(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 (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not any
such direction is unduly prejudicial to any other Holder), or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders (except as otherwise provided herein).  For the protection and
enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.


 


Notwithstanding any other provision of
this Indenture and any provision of any Note, each Holder shall have the right to receive payment or delivery, as the case may
be, of (x) the principal (including 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 and such right to receive such payment or delivery, as the case may be, on or after such respective dates shall not be impaired
or affected without the consent of the Holder.


 


Section
6.07.           Proceedings by Trustee.


 


In case of
an Event of Default, the Trustee may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law
or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.


 


Section
6.08.           Remedies Cumulative and Continuing.


 


Except as
provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of
the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or
shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions
of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.


 






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Section
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 it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability
(it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not any such direction is unduly
prejudicial to any other Holder).  The Holders of a majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04 may on behalf of the Holders of all of the Notes waive any past Default or Event of
Default hereunder and its consequences except (i) a continuing default in the payment of accrued and unpaid interest, if any, on,
or the principal (including 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 continuing failure by the Company to pay or deliver, as the case may be, the consideration
due upon conversion of the Notes or (iii) a continuing default in respect of a covenant or provision hereof which under Article
10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected.  Upon any such waiver
the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no
such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.  Whenever
any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default
shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.


 


Section
6.10.                 
Notice of Defaults.


 


The Trustee
shall, within 90 days after the occurrence and continuance of a Default of which 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 principal of (including the
Fundamental Change Repurchase Price, if applicable), or interest on, any of the Notes or a Default in the payment or delivery of
the consideration due upon conversion, the Trustee may withhold such notice if and so long as the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.


 


Section
6.11.                 
Undertaking to Pay Costs.


 


All parties to this
Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in
its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by law) shall
not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Notes at the time outstanding 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 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.


 






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Article
7.

Concerning the Trustee


 


Section
7.01.                 
Duties and Responsibilities of Trustee.


 


The Trustee,
prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture.  In the event
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs; provided that if an Event of Default occurs and is continuing, the Trustee
will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of
the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to
it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.


 


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


 


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


 


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


 


(ii)             
in the absence of bad faith 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);


 






    38


     


    

 


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


 


(c)              
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding
determined as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;


 


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


 


(e)             
the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any
other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note
Registrar with respect to the Notes;


 


(f)              
if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice
to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such
event occurred, unless a Responsible Officer of the Trustee had actual knowledge of such event;


 


(g)             
in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest
bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred
thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure
of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide
timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder
in the absence of such written investment direction from the Company; 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 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.


 






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Section
7.02.                 
Reliance on Documents, Opinions, Etc.


 


 Except as
otherwise provided in Section 7.01:


 


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


 


(b)             
any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an 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 and require an Opinion of Counsel and any written or verbal advice of such counsel
or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;


 


(d)             
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any
kind by reason of such inquiry or investigation;


 


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


 


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


 


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


 


(h)              the Trustee shall have no obligation to pursue any action that is not in accordance with
applicable law;


 


(i)               
the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture; and


 






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(j)               
under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.


 


In no event shall the Trustee be liable
for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.  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 a Responsible Officer of the Trustee by the Company or by any Holder of the Notes at the Corporate Trust
Office and such notice references the Notes and/or this Indenture.


 


Section
7.03.                 
No Responsibility for Recitals, Etc.


 


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


 


Section
7.04.                 
Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes.


 


The Trustee,
any Paying Agent, any Conversion Agent or Note Registrar, in its individual or any other capacity, may become the owner or pledgee
of Notes with the same rights it would have if it were not the Trustee, Paying Agent, Conversion Agent or Note Registrar.


 


Section
7.05.                 
Monies and Shares of Common Stock to Be Held in Trust.


 


All monies
and shares of Common Stock received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received.  Money and shares of Common Stock held by the Trustee in trust hereunder need not be segregated
from other funds or property except to the extent required by law.  The Trustee shall be under no liability for interest
on any money or shares of Common Stock received by it hereunder except as may be agreed from time to time by the Company and the
Trustee.


 


Section
7.06.                 
Compensation and Expenses of Trustee.


 


 The Company
covenants and agrees to pay to the Trustee, in any capacity under the Indenture, from time to time, and the Trustee shall be entitled
to, reasonable compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the Trustee and
the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably  incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any
capacity thereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of
all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been caused by its gross
negligence or willful misconduct, as adjudicated by a court of competent jurisdiction in a final non-appealable decision.  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 and agents and any authenticating agent for, and to hold them
harmless against, any loss, claim, damage, liability or expense incurred without gross negligence or  willful misconduct,
as adjudicated by a court of competent jurisdiction in a final non-appealable decision, on the part of the Trustee, its officers,
directors, agents or employees, or such agent or authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this Indenture or in any other capacity hereunder, including without limitation expenses
and costs (including reasonable attorney’s fees and expenses and court costs) incurred in connection with any action , claim
or suit brought to enforce the Trustee’s right to indemnification.  The obligations of the Company under this Section
7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee,
except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes.  The
Trustee’s right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other
liability or indebtedness of the Company.  The obligation of the Company under this Section 7.06 shall survive the satisfaction
and discharge of this Indenture and the earlier resignation or removal of the Trustee.  The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld.  The indemnification provided
in this Section 7.06 shall extend to the officers, directors, agents and employees of the Trustee.


 






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


 


Section
7.07.                 
Officers’ Certificate as Evidence.


 


Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary
or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on
the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the
Trustee, and such Officers’ Certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith
thereof.


 






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Section
7.08.                 
Eligibility of Trustee.


 


There shall
at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust
Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000.  If
such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


 


Section
7.09.                 
Resignation or Removal of Trustee.


 


 (a)             
The Trustee
may at any time resign by giving written notice of such resignation to the Company and by delivering notice thereof to the Holders.  Upon
receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy
to the successor trustee.  If no successor trustee shall have been so appointed and have accepted appointment within
60 days after the giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’
notice to the Company and the Holders and at the expense of the Company, petition any court of competent jurisdiction for the appointment
of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the
date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others similarly
situated, petition any such court for the appointment of a successor trustee.  Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.


 


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


 


(i)              
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after
written request therefor by the Company or by any such Holder, or


 


(ii)             
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,


 


then, in either case,
the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes
for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee.  Such
court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.


 






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(c)              
The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance
with Section 8.04, may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor
trustee unless within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee
so removed or any Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee.


 


(d)              
Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this
Section 7.09 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.


 


Section
7.10.                 
Acceptance by Successor Trustee.


 


Any successor
trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless,
on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts
then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act.  Upon request of any such successor trustee, the Company
shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers.  Any trustee ceasing to act shall, nevertheless, retain a senior lien to which the Notes
are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust
for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.


 


No successor trustee shall accept appointment
as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under the provisions
of Section 7.08.


 


Upon acceptance of appointment by a successor
trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and at the expense
of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders.  If
the Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be delivered at the expense of the Company.


 


Section
7.11.                 
Succession by Merger, Etc.


 


Any corporation or
other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of
this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided that in the case of any corporation or other entity succeeding to all
or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible under the
provisions of Section 7.08.


 






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In case at the time such successor to the
Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating agent
appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate
such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor
trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger,
conversion or consolidation.


 


Section
7.12.                 
Trustee’s Application for Instructions from the Company.


 


Any application
by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted
to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the
Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective.  The Trustee shall not be liable 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 notice to the
Company is deemed to be received pursuant to Section 17.03, unless the Company shall have consented in writing to any earlier
date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received
written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.


 


Article
8.

Concerning the Holders


 


Section
8.01.                 
Action by Holders.


 


Whenever in this Indenture
it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact
that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in
writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance
with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting
of Holders.  Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes, the
Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining
Holders entitled to take such action.  The record date if one is selected shall be not more than fifteen days prior
to the date of commencement of solicitation of such action.


 






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Section
8.02.                 
Proof of Execution by Holders.


 


Subject to the provisions
of Section 7.01, Section 7.02 and Section
9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.  The holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.  The
record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.


 


Section
8.03.                 
Who Are Deemed Absolute Owners.


 


 The Company,
the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person in whose
name a Note shall be registered upon the Note Register to be, and may 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 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.  The sole registered holder of a Global Note shall be the
Depositary or its nominee. All such payments or deliveries so made to any Holder for the time being, or upon its order, shall be
valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge the liability
for monies payable or shares deliverable upon any such Note.  Notwithstanding anything to the contrary in this Indenture
or the Notes following an Event of Default, any 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.


 


Section
8.04.                 
Company-Owned Notes Disregarded.


 


In determining whether
the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or other action
under this Indenture, Notes that are owned by the Company, by any Subsidiary thereof or by any Affiliate of the Company or any
Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent, waiver
or other action only Notes that a Responsible Officer 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.


 






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Section
8.05.                 
Revocation of Consents; Future Holders Bound.


 


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


 


Article
9.

Holders’ Meetings


 


Section
9.01.                 
Purpose of Meetings.


 


A meeting
of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following
purposes:


 


(a)             
to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture,
or to consent to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and
its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;


 


(b)              
to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;


 


(c)              
to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02;
or


 


(d)              
to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount
of the Notes under any other provision of this Indenture or under applicable law.


 






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Section
9.02.                 
Call of Meetings by Trustee.


 


 The Trustee
may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such place
as the Trustee shall determine.  Notice of every meeting of the Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant
to Section 8.01, shall be delivered to Holders of such Notes.  Such notice shall also be delivered to the Company.  Such
notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.


 


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


 


Section
9.03.                 
Call of Meetings by Company or Holders.


 


In case at any time
the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal amount of the Notes then
outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such meeting within 20
days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.


 


Section
9.04.                 
Qualifications for Voting.


 


To be entitled to
vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to such meeting
or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining
to such meeting.  The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section
9.05.                 
Regulations.


 


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


 


The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as
provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Holders of a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.


 






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Subject to the provisions of Section 8.04,
at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held
or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect
of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding.  The chairman
of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly
designating it as the proxy to vote on behalf of other Holders.  Any meeting of Holders duly called pursuant to the provisions
of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount
of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without
further notice.


 


Section
9.06.                 
Voting.


 


The vote upon any
resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them.  The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting.  A record in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was delivered as provided in Section 9.02.  The record shall show the aggregate
principal amount of the Notes voting in favor of or against any resolution.  The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company
and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.


 


Any record so signed and verified shall
be conclusive evidence of the matters therein stated.


 


Section
9.07.                 
No Delay of Rights by Meeting.


 


Nothing contained
in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.


 






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Article
10.

Supplemental Indentures


 


Section
10.01.             
Supplemental Indentures Without Consent of Holders.


 


 Without the
consent of any Holder, the Company, when authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s
expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the
following purposes:


 


(a)              
to cure any ambiguity, omission, defect or inconsistency;


 


(b)              
to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture pursuant to
Article 11;


 


(c)              
to add guarantees with respect to the Notes;


 


(d)              
to secure the Notes;


 


(e)              
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 the rights of any Holder;


 


(g)              
to increase the Conversion Rate as provided in this Indenture;


 


(h)              
to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under
this Indenture by more than one trustee;


 


(i)               
in connection with any Share Exchange Event, to provide that the Notes are convertible into Reference Property and make
such related changes to the terms of the Notes to the extent expressly required by Section 14.07;


 


(j)               
to comply with the rules of any applicable securities depositary in a manner that does not adversely affect the rights of
any Holder;


 


(k)              
to make provisions with respect to conversion rights of the Holders of the Notes as required under this Indenture; or


 


(l)              
to conform the provisions of this Indenture or the Notes to any provision of the “Description of Notes” section
of the Offering Memorandum.


 


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, liabilities or immunities
under this Indenture or otherwise.


 


Any supplemental indenture authorized by
the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of
the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.


 






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Section
10.02.             
Supplemental Indentures with Consent of Holders.


 


 With the consent
(evidenced as provided in Article 8) of the Holders of at least a majority 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 principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;


 


(b)              
reduce the rate of or change the stated time for payment of interest on any Note;


 


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


 


(d)              
except as required under this Indenture, make any change that adversely affects the conversion rights of any Note;


 


(e)              
reduce the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders the Company’s
obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;


 


(f)               
make any Note payable in a currency other than that stated in such Note;


 


(g)              
change the ranking of the Notes in any manner adverse to the Holders;


 


(h)              
impair the right of any Holder to receive payment and interest on such Holder’s Notes on or after the due date thereof
or to institute suit for the enforcement of any payment or delivery on or with respect to such Holder’s Notes; or


 


(i)               
make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02
or Section 6.09.


 


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


 


Holders do not need under this Section
10.02 to approve the particular form of any proposed supplemental indenture.  It shall be sufficient if such Holders
approve the substance thereof.  After any such supplemental indenture becomes effective, the Company shall deliver to
the Holders (with a copy to the Trustee) a notice briefly describing such supplemental indenture. However, the failure to give
such notice to all the Holders (with a copy to the Trustee), or any defect in the notice, will not impair or affect the validity
of the supplemental indenture.


 






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Section
10.03.             
Effect of Supplemental Indentures.


 


Upon the execution
of any supplemental indenture pursuant to the provisions of this Article 10, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under
this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall
be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.


 


Section
10.04.             
Notation on Notes.


 


 Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may, at the Company’s
request and expense, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If
the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the 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.


 


Section
10.05.             
Evidence of Compliance of Supplemental Indenture and Enforceability of the 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 and an Opinion of Counsel that such supplemental indenture constitutes the
legal, valid and binding obligation of the Company enforceable against it in accordance with its terms, subject to customary exceptions
as to enforceability by such counsel.


 


Article
11.

Consolidation, Merger, Sale, Conveyance and Lease


 


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


 


 Subject to
the provisions of Section 11.02, the Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease
all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, to another
Person (other than to one or more of its direct or indirect Wholly Owned Subsidiaries), if the Company is not the resulting, surviving
or transferee Person, unless:


 






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(a)              
the resulting, surviving or transferee Person (the “Successor Company”) is a corporation organized and
existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company
(if not the Company) expressly assumes, 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


 


Section
11.02.             
Successor Corporation to Be Substituted.


 


In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal
of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration
due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease
of all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, 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 this
Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11)
may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall
be released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.


 


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


 


Section
11.03.             
Opinion of Counsel to Be Given to Trustee.


 


 No such consolidation,
merger, sale, conveyance, transfer or lease (other than any consolidation or merger where the Company is the surviving entity)
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 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.


 






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Article
12.

Immunity of Incorporators, Stockholders, Officers and Directors


 


Section
12.01.             
Indenture and Notes Solely Corporate Obligations.


 


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


 


Article
13.

Delayed Delivery Provision


 


Section
13.01.             
Delayed Delivery Provision.


 


(a)              
Notwithstanding any provision to the contrary in this Indenture, the delivery of any shares of Common Stock issuable upon
the conversion of any Notes held by the Investor, that, if delivered to the Investor, would result in the Investor having a Beneficial
Ownership of Common Stock (as defined in the Side Letter) or any other class of any equity security of the Company, in excess of
the Beneficial Ownership Limitation (as defined in the Side Letter) (such shares in excess of the Beneficial Ownership Limitation,
the “Excess Shares”), shall be delayed in accordance with paragraph A(ii) of the Side Letter (the “Beneficial
Ownership Limitation Provision”).  Upon the occurrence of a Company Conversion Notice Stay (as defined in the Side
Letter), the Company shall deliver to the Trustee, the Conversion Agent and the Investor an Officers’ Certificate notifying
the Trustee, the Conversion Agent and the Investor of the occurrence of a Company Conversion Notice Stay, and, upon receipt of
such Officers’ Certificate specifying both the number of shares of Common Stock to be delivered to the Investor upon conversion
and the number of Excess Shares, the Company shall delay the delivery to the Conversion Agent of any Excess Shares of Common Stock
issuable upon the conversion of such Notes held by the Investor until the Company has delivered to the Trustee, the Conversion
Agent and the Investor one or more additional Officers’ Certificates setting forth the number of such previously deemed Excess
Shares authorized to be delivered to the Investor upon conversion.


 






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(b)              
During the period that any Excess Shares remain undelivered to the Investor, the Notes which would otherwise convert into
such Excess Shares shall be deemed to remain outstanding debt obligations of the Company with terms identical to the Notes (but
shall not be outstanding Notes for all other purposes under the Indenture) until such Excess Shares may be delivered without causing
the Investor to exceed the Beneficial Ownership Limitation Provision.  During the 60 calendar day period following the commencement
of the Company Conversion Notice Stay (such 60 calendar day period, the “Stay Period”), such deemed outstanding
debt obligations shall accrue interest at the rate otherwise applicable to the Notes, and the Company shall pay interest thereon
directly to the Investor (and not through the Trustee or the Paying Agent). Following the Stay Period, the only obligation
of the Company shall be to deliver any Excess Shares (subject to compliance with the Beneficial Ownership Limitation Provision).


 


(c)              
Subject to the Beneficial Ownership Limitation Provisions and the restrictions set forth in this Section 13.01, shares of
Common Stock issuable upon conversion of any Notes held by the Investor shall be delivered in accordance with the provisions otherwise
set forth in this Indenture.


 


(d)              
Neither the Trustee nor the Conversion Agent shall have any obligations under this Section 13.01 other than to receive Officers’
Certificates delivered hereunder and to deliver Excess Shares upon receipt from the Company in accordance with the provisions otherwise
set forth in this Indenture.


 


Article
14.

Conversion of Notes


 


Section
14.01.             
Conversion Privilege.


 


 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 at any time prior to the close of business on the second
Scheduled Trading Day immediately preceding the Maturity Date at an initial conversion rate of 344.8276 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”).


 


Section
14.02.             
Conversion Procedure; Settlement Upon Conversion.


 


(a)              
Upon conversion of any Note, the Company shall deliver, on the second Scheduled Trading Day following the Conversion Date
to the converting Holder a number of shares of Common Stock equal to (i)(A) the aggregate principal amount of Notes to be converted,
divided by (B) $1,000, multiplied by (ii) the applicable Conversion Rate in effect on the Conversion Date; provided, however, that
for any conversion that occurs on or after the Record Date for the payment of interest on the Notes at the Maturity Date and until
the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, the Company will deliver such
shares on the Maturity Date.


 






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(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 Applicable
Procedures 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/or all transfer or similar taxes described herein, and (ii) in
the case of a Physical Note (1) complete, manually sign and deliver an irrevocable notice to the Conversion Agent as set forth
in the Form of Notice of Conversion (or a facsimile, PDF or other electronic transmission thereof) (a “Notice of Conversion”)
at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be converted and the name or
names (with addresses) in which such Holder wishes the certificate or certificates for any shares of Common Stock to be delivered
upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank
(and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion Agent, (3) if required, furnish
appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest payable on the next Interest Payment
Date to which such Holder is not entitled as set forth in Section 14.02(h); and (5) if required, pay any transfer or similar taxes
as described herein.  The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion
pursuant to this Article 14 as soon as practical, but in any event, not
later than the Trading Day immediately following the Conversion Date.  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.


 


(c)              
A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion
Date”) that the Holder has complied with the requirements set forth in subsection (b) above.  Except as set
forth in Section 14.03(b) and Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in
respect of the Conversion Obligation on the second Business Day immediately following the relevant Conversion Date. If 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 the
Conversion Agent or 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.


 






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(e)              
The Conversion Agent may refuse to deliver the certificates representing the shares of Common Stock being issued in a name
other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance
with the immediately preceding sentence.  


 


(f)               
Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon
the conversion of any Note as provided in this Article 14.


 


(g)              
Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall
make a notation on such Global Note as to the reduction in the principal amount represented thereby.  The Company shall
notify the Trustee in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.


 


(h)              
Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as
set forth below, and the Company shall not adjust the Conversion Rate for any accrued and unpaid interest on the Notes.  The
Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal
amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued
and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited.  Notwithstanding the foregoing, if Notes are converted after the close of business
on a Regular Record Date and prior to the open of business on the corresponding Interest Payment Date, Holders of such Notes as
of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding
Interest Payment Date notwithstanding the conversion.  Notes surrendered for conversion during the period from the close
of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied
by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required
(1) for conversions of the Notes following the close of business on the Regular Record Date immediately preceding the Maturity
Date; (2) for conversions of Notes for which the Company has given a Company Conversion Notice with a Company Conversion Date that
is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding Interest
Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on
or prior to the second 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 Notes.  Therefore,
for the avoidance of doubt, all Holders of record on the Regular Record Date immediately preceding the Maturity Date, Company Repurchase
Notice Date or any Fundamental Change Repurchase Date, in each case described above, shall receive the full interest payment due
on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether their Notes have been converted following
such Regular Record Date.


 






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(i)                
The Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder
of record as of the close of business on the relevant Conversion Date.  Upon a conversion of Notes, such Person shall
no longer be a Holder of such Notes surrendered for conversion.


 


(j)                
Notwithstanding the foregoing, the Company shall not deliver any fractional share of Common Stock upon conversion of the
Notes; the Company shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based
on the VWAP for the relevant Conversion Date (or, if such Conversion Date is not a Trading Day, the next following Trading Day).


 


Section
14.03.             
Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with a Make-Whole Fundamental Change
or Notice of Early Company Conversion.


 


(a)               If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (ii) the Company gives
a Notice of Early Company Conversion (prior to December 1, 2022) with respect to the Notes pursuant to Section 16.02 and, in each
case, a Holder elects or is required to convert its Notes in connection with such Make-Whole Fundamental Change or Notice of Early
Company Conversion, as applicable, the Company shall, under the circumstances described below, increase the Conversion Rate for
the Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”),
as described below.  The Conversion Rate will not be increased in connection with a Notice of Company Conversion on or
after December 1, 2022. 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 subclause
(a) of the proviso in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such
Make-Whole Fundamental Change) (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 Early Company Conversion if the
relevant Notice of Conversion of the Notes is received by the Conversion Agent prior to December 1, 2022.


 


(b)              
Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or Notice of Early Company Conversion,
the Company shall satisfy the related Conversion Obligation 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 (if other than the Trustee) in writing of
the Effective Date of any Make-Whole Fundamental Change no later than five Business Days after such Effective Date.


 






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(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
Company Notice of Early Company Conversion, 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 Notice
of Early Company Conversion, 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 Early Company
Conversion, as the case may be.  The Company shall make appropriate adjustments to the Stock Price, in good faith and
in a commercially reasonable manner, to account for any adjustment to the Conversion Rate that becomes effective, or any event
requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date (as such term is used in Section 14.04)
or expiration date of the event occurs during such five consecutive Trading Day period.


 


(d)              
The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion
Rate 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 Date	 	$2.32	 	$2.50	 	$2.90	 	$3.25	 	$3.77	 	$4.00	 	$4.35	 	$6.00	 	$8.00	 	$10.00
	November 22, 2019	 	86.2068	 	86.2068	 	79.9253	 	64.7524	 	49.1535	 	44.0383	 	37.7087	 	21.0180	 	12.6349	 	8.4890
	December 1, 2020	 	86.2068	 	86.2068	 	70.7638	 	55.3632	 	40.0858	 	35.2498	 	29.4229	 	15.2146	 	8.9333	 	6.0307
	December 1, 2021	 	86.2068	 	85.8330	 	57.9014	 	41.9691	 	27.1517	 	22.7920	 	17.8439	 	7.8069	 	4.5320	 	3.1507
	December 1, 2022	 	86.2068	 	76.9837	 	42.6056	 	21.3888	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000
	December 1, 2023	 	86.2068	 	73.1674	 	39.0515	 	19.2050	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000
	December 1, 2024	 	86.2068	 	55.1724	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000	 	0.0000





 






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


 


(i)                
if the Stock Price is between two Stock Prices in the table 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 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 $10.00 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 $2.32 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 431.0344 shares of Common Stock, subject to adjustment in
the same manner as the Conversion Rate pursuant to Section 14.04.


 


(f)               
Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of
a Make-Whole Fundamental Change.


 


Section
14.04.             
Adjustment of Conversion Rate.


 


The Conversion Rate
shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make
any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of a share split or share combination
or 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:


 





 


where,


 


CR0
= the Conversion Rate in effect immediately prior to the close of business on the Record 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;


 






    60


     


    

 


CR1
= the Conversion Rate in effect immediately after the close of business on such Record Date or Effective Date;


 


OS0
= the number of shares of Common Stock outstanding immediately prior to the close of business on such Record Date or Effective
Date (before giving effect to any such dividend, distribution, split or 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 Record Date for such dividend or distribution, or
immediately after the close of business on the Effective Date for such share split or share combination, as applicable.  If
any dividend or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the Conversion
Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution,
to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.


 


(b)              
If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than
in connection with a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement
date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average
of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following
formula:


 





 


where,


 


CR0=the
Conversion Rate in effect immediately prior to the close of business on the Record Date for such issuance;


 


CR1=
the Conversion Rate in effect immediately after the close of business on such Record Date;


 


OS0
= the number of shares of Common Stock outstanding immediately prior to the close of business on such Record Date;


 


X = the total number of shares of Common
Stock issuable pursuant to such rights, options or warrants; and


 


Y = the number of shares of Common Stock
equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of the issuance of such rights, options or warrants.


 






    61


     


    

 


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 close of business on the Record 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 Record Date for such issuance
had not occurred.


 


For purposes of this Section 14.04(b),
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 Company in good faith and in a commercially reasonable manner.  


 


(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 (including share splits) as to which an adjustment was effected
(or would be required to be effected, notwithstanding the 1% Exception in Section 14.04(j)) 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 described below, rights issued pursuant to a stockholder rights plan of the Company, (iv) distributions
of Reference Property 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,


 


CR0
= the Conversion Rate in effect immediately prior to the close of business on the Record Date for such distribution;


 


CR1=
the Conversion Rate in effect immediately after the close of business on such Record Date;


 






    62


     


    

 


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


 


FMV = the fair market value (as determined
by the Company in good faith and in a commercially reasonable manner) of the Distributed Property with respect to each outstanding
share of the Common Stock on the Record Date for such distribution.


 


Any increase made under the portion of
this Section 14.04(c) above shall become effective immediately after the close of business on the Record 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.  If the Company issues rights, options or warrants that are only exercisable
upon the occurrence of certain triggering events, then the Company shall not adjust the Conversion Rate pursuant to the clauses
above until the earliest of these triggering events occurs, and the Company shall readjust the Conversion Rate to the extent that
any of these rights, options or warrants are not exercised before they expire.  In the case of any distribution of rights,
options or warrants, to the extent any such rights, options or warrants expire unexercised, the Conversion Rate shall be immediately
readjusted to the Conversion Rate that would then be in effect had the increase made for the distribution of such rights, options
or warrants been made on the basis of delivery of only the number of shares of the Common Stock actually delivered upon exercise
of such rights, options or warrants.  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, 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 Record Date for the distribution.  If
the Company determines the “FMV” (as defined above) of any distribution for purposes of this Section 14.04(c) by reference
to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the
same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending
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:


 





 


where,


 


CR0
= the Conversion Rate in effect immediately prior to the end of the Valuation Period;


 






    63


     


    

 


CR1=
the Conversion Rate in effect immediately after the end of the Valuation Period;


 


FMV0
= the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common
Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set
forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the
first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”);
provided that if there is no Last Reported Sale Price of the Capital Stock or similar equity interest distributed to the
holders of the Common Stock on such Ex-Dividend Date, the “Valuation Period” shall be the first 10 consecutive
Trading Day period after, and including, the first date such Last Reported Sale Price is available; and


 


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


 


The adjustment to the Conversion Rate under
the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that
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.  If any dividend or distribution
that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately decreased, effective
as of the date the Board of Directors determines not to pay or make such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared or announced.


 


For purposes of this Section 14.04(c)
(and subject in all respect to Section 14.11), rights, options
or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of
the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options
or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred
with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the
Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion
Rate under this Section 14.04(c)will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options
or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate
shall be made under this Section 14.04(c).  If any such right, option or warrant, including any such existing rights,
options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such
rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then
the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with
respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed
to terminate and expire on such date without exercise by any of the holders thereof).  In addition, in the event of
any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described
in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount
for which an adjustment to the Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options
or warrants that shall all have been 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.


 






    64


     


    

 


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:


 





 


where,


 


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


 






    65


     


    

 


CR1=
the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution;


 


SP0
= the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Record 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 Record 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 in effect on the Record 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 that
is subject to the then-applicable tender offer rules under the Exchange Act, other than an odd-lot tender offer, to the extent
that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of
the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the
Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer,
the Conversion Rate shall be increased based on the following formula:


 





 


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;


 


CR1=
the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including,
the Trading Day next succeeding the date such tender or exchange offer expires;


 


AC = the aggregate value of all cash and
any other consideration (as determined by the Company in good faith and in a commercially reasonable manner) paid or payable for
shares of Common Stock purchased in such tender or exchange offer;


 






    66


     


    

 


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 adjustment 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 immediately following the expiration date of such tender
or exchange offer expires; provided that 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.  For the
avoidance of doubt, no adjustment under this Section 14.04(e) shall
be made if such adjustment would result in a decrease in the Conversion Rate (other than, for the avoidance of doubt, any readjustment
described in the immediately succeeding paragraph).


 


If the Company or one of its Subsidiaries
is obligated to purchase the Common Stock pursuant to any such tender or exchange offer described in this Section 14.04(e) but
the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchase or all such purchases
are rescinded, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such tender or
exchange offer had not been made or had been made only in respect of the purchases that have been effected.


 


(f)               
Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if (i) a Conversion Rate adjustment
becomes effective on any Record Date, (ii) a Holder has converted its Notes and the Conversion Date for such conversion occurs
on or after such Record Date and on or prior to the related Record Date; (iii) the consideration due upon such conversion includes
any whole shares of Common Stock based on a Conversion Rate that is adjusted for such Record Date; and (iv) such shares of Common
Stock would be entitled to participate in such dividend, distribution, or other event giving rise to such adjustment, then, notwithstanding
the Conversion Rate adjustment provisions in this Section 14.04, the Conversion Rate adjustment relating to such Record Date shall
not be made for such conversion, and, instead, the shares of Common Stock issuable upon conversion on an unadjusted basis will
be entitled to participate in the related dividend, distribution or other event giving rise to such adjustment.


 


(g)              
Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock
or any securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common
Stock or such convertible or exchangeable securities.


 






    67


     


    

 


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


 


(i)                
Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not be adjusted:


 


(i)                
upon the issuance of shares of the Common Stock at a price below the Conversion Price or otherwise, other than any such
issuance described in clause (a), (b), or (c) of this Section 14.04;


 


(ii)             
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;


 


(iii)           
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 or incentive plan (including pursuant to any evergreen plan) or program of or assumed
by the Company or any of the Company’s Subsidiaries or in connection with any such shares withheld by the Company for tax
withholding purposes;


 


(iv)            
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 (iii) of this subsection and outstanding as of the date the Notes were first issued;


 


(v)              
for a tender offer by any party other than a tender offer by the Company or one or more of the Company’s Subsidiaries
as described in clause (e) of this Section 14.04;


 


(vi)            
upon the repurchase of any shares of the Common Stock pursuant to an open-market share repurchase program or other buy-back
transaction (including, without limitation, through any structured or derivative transactions such as accelerated share repurchase
transactions or similar forward derivatives), or other buy-back transaction, that is not a tender offer or exchange offer of the
nature described under clause (e) of this Section 14.04;


 






    68


     


    

 


(vii)         
solely for a change in the par value (or lack of par value) of the Common Stock; or


 


(viii)       
for accrued and unpaid interest, if any.


 


(j)                
The Company shall not adjust the Conversion Rate pursuant to the clauses above unless the adjustment would result in a change
of at least 1% in the then effective Conversion Rate; provided that the Company shall carry forward any adjustment to the
Conversion Rate that the Company would otherwise have to make and take that adjustment into account in any subsequent adjustment.  Notwithstanding
the foregoing, all such carried-forward adjustments shall be made with respect to the Notes (i) in connection with any subsequent
adjustment to the Conversion Rate of at least 1% of the Conversion Rate, (ii) regardless of whether the aggregate adjustment is
less than 1% of the Conversion Rate, on the Conversion Date and (iii) on any Effective Date under Section 14.03(c), in each case,
unless the adjustment has already been made. The provisions described above in this Section 14.06(j) are referred to as the “1%
Exception”. 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.


 


(k)              
Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion
Agent if not the Trustee) an 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.


 


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


 


Section
14.05.             
Adjustments of Prices.


 


 Whenever
any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the VWAP or the Stock Price for
purposes of a Make-Whole Fundamental Change or Company Early Conversion), the Company shall, in good faith and in a commercially
reasonable manner, make appropriate adjustments without duplication in respect of any adjustment made pursuant to clause (a),
(b), (c), (d) or (e) of Section 14.04 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 such Last Reported Sale Prices, VWAPs or the Stock Prices
are to be calculated.  


 






    69


     


    

 


Section
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).


 


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


 


(a)              
In the case of:


 


(i)                
any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or
combination),


 


(ii)             
any consolidation, merger, 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 the Company or
the successor or purchasing Person, as the case may be, shall execute with the Trustee and without the consent of the Holders
a supplemental indenture providing that, 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(i) 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)  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 (B) the VWAP or Last Reported Sale Price of any unit of Reference Property or portion thereof that does not consist
of a class of securities shall be the fair value of such unit of Reference Property or portion thereof, as applicable, determined
in good faith and in a commercially reasonable manner by the Company (or, in the case of cash denominated in U.S. dollars, the
face amount thereof).


 






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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 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) in
writing of such weighted average as soon as practicable after such determination is made.


 


If the Reference Property in respect of
any such transaction includes, in whole or in part, shares of common equity or American depositary receipts (or other interests)
in respect thereof, 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 with
respect to the portion of the Reference Property consisting such common equity or American depositary receipts (or other interests)
in respect thereof.  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 Company or the successor or
purchasing corporation, as the case may be, in such Share Exchange Event, then such Person shall also 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.


 






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(c)              
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 shall similarly apply to successive Share Exchange Events.


 


Section
14.08.             
Certain Covenants.


 


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


 


(b)              
The Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder
require registration with or approval of any governmental authority under any federal or state law before such shares of Common
Stock may be validly issued upon conversion, the Company will, to the extent then permitted by the rules and interpretations of
the Commission, secure such registration or approval, as the case may be.


 


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


 


Section
14.09.             
Responsibility of Trustee.


 


The Trustee and any
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 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 Conversion Agent make no representations with respect thereto.  Neither the Trustee nor any Conversion Agent
shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates
or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this Article.  Without limiting the generality
of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or
amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes
after any event referred to in such Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions
of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions,
and shall be protected in 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 14.13 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 14.13 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 14.13. Except as otherwise expressly provided herein, neither the Trustee nor any other agent acting under this Indenture
(other than the Company, if acting in such capacity) shall have any obligation to make any calculation or to determine whether
the Notes may be surrendered for conversion pursuant to this Indenture, or to notify the Company or the Depositary or any of the
Holders if the Notes have become convertible pursuant to the terms of this Indenture.


 






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Section
14.10.             
Notice to Holders Prior to Certain Actions.


 


 In case of any:  


 


(a)              
action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section
14.04 or Section 14.11;


 


(b)              
Share Exchange Event; or


 


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


 


then, in each case (unless notice of such
event is otherwise required pursuant to another provision of 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.


 






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Section
14.11.             
Stockholder Rights Plans.


 


 If the Company
has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion
shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights
plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from
the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall
be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed
Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of
such rights.


 


Section
14.12.             
Exchange in Lieu of Conversion.


 


(a)              
When a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”),
direct the Conversion Agent in writing to deliver, on or prior to the Trading Day immediately following the relevant Conversion
Date, such Notes to one or more financial institutions designated by the Company for exchange in lieu of conversion. In order to
accept any Notes surrendered for conversion, the designated institution(s) must agree to timely pay and/or deliver, as the case
may be, in exchange for such Notes, the shares of the Common Stock that would otherwise be due upon conversion pursuant to Section
14.02 (the “Conversion Consideration”) or such other amount agreed to by the Holder and the designated financial
institution(s). If the Company makes an Exchange Election, the Company shall, by the close of business on the Trading Day following
the relevant Conversion Date, notify the Holder surrendering its Notes for conversion, the Trustee and the Conversion Agent (if
other than the Trustee) in writing that it has made the Exchange Election and it will notify the designated financial institution(s)
of the relevant deadline for delivery of the Conversion Consideration and the type of Conversion Consideration to be paid and/or
delivered, as the case may be.


 


(b)              
Any Notes delivered to the designated institution(s) shall remain outstanding, subject to applicable Depositary procedures.
If the designated institution(s) agree(s) to accept any Notes for exchange but do(es) not timely pay and/or deliver, as the case
may be, the related Conversion Consideration, or if such designated financial institution(s) do(es) not accept the Notes for exchange,
the Company shall pay and/or deliver, as the case may be, the relevant Conversion Consideration as if it had not made an Exchange
Election.


 


(c)              
The Company’s designation of any financial institution(s) to which the Notes may be submitted for exchange does not
require such financial institution(s) to accept any Notes.


 






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Section
14.13.                 
Company Conversion Option. 


 


(a)              
On or after December 1, 2021 to December 1, 2022, if the VWAP of the Common Stock has equaled or exceeded 150% of the Conversion
Price then in effect for at least 20 Trading Days (whether or not consecutive) in any 30 Trading Day period (including the last
Trading Day of such period) ending on and including the Trading Day immediately preceding the date on which the Company delivers
a Company Conversion Notice (a “Company Early Conversion Trigger Event”), the Company may, at its option, elect
to convert the Original Principal Amount of the Notes in whole but not in part (the “Early Company Conversion”)
into shares of Common Stock determined in accordance with Section 14.02(a) hereof by sending (or instructing the Trustee to send)
a Company Conversion Notice (such notice, a “Notice of Early Company Conversion”) to each Holder in accordance
with Section 14.13(c).


 


(b)              
On or after December 1, 2022, if the VWAP of the Common Stock has equaled or exceeded 130% of the Conversion Price then
in effect for at least 20 Trading Days (whether or not consecutive) in any 30 Trading Day period (including the last Trading Day
of such period) ending on and including the Trading Day immediately preceding the date on which the Company delivers a Company
Conversion Notice (a “Company Conversion Trigger Event”), the Company may, at its option, elect to convert the
Original Principal Amount of the Notes in whole but not in part (the “Company Conversion” and, together with
the “Company Early Conversion,” the “Company Conversion Option”) into shares of Common Stock
determined in accordance with Section 14.02(a) hereof by sending (or instructing the Trustee to send) a Company Conversion Notice
(such notice, a “Notice of Company Conversion”) to each Holder in accordance with Section 14.13(c).


 


(c)              
If the Company elects to exercise a Company Conversion Option pursuant to Section 5.10(a) or (b), the Company or, at the
Company’s written request and expense given to the Trustee at least three days before such notice is to be sent (or such
shorter period acceptable to the Trustee), the Trustee on behalf of the Company, shall deliver to each Holder (with a copy to the
Trustee and the Conversion Agent) a notice (a “Company Conversion Notice”) of the Company Conversion Option.
The Company will select the date on which the Notes will be converted pursuant to the Company Conversion Option (the “Company
Conversion Date”), which will be no more than five Trading Days nor less than two Trading Days after the date of the
Company Conversion Notice (the “Company Conversion Notice Date”); provided that, the Company’s
right to exercise the Company Conversion Option shall be suspended during the period beginning on the date of the Fundamental Change
Repurchase Notice and continuing to, and including, the applicable Fundamental Change Repurchase Date. The Company shall take any
action that may be necessary so that shares of Common Stock issued pursuant to a Company Conversion Option shall be freely tradeable
under any applicable federal and state securities laws (other than with respect to any shares of Common Stock held by the Company’s
affiliates).


 


Each Company Conversion
Notice shall state:


 


(i)  
the Company Conversion Date;


 


(ii) 
the CUSIP or similar number or numbers of the Notes being converted, and that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes;


 






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(iii) 
that on and after the Company Conversion Date, interest on the Notes to be converted will cease to accrue and the Notes
will cease to be outstanding;


 


(iv) the name and address
of each Paying Agent and Conversion Agent and the place or places where such Notes are to be surrendered;


 


(v) 
that the Notes subject to the Company Conversion Option may still be voluntarily converted pursuant to Section 14.01 on
or prior to the close of Business on the Business Day immediately preceding the Company Conversion Date; and


 


(vi) the Conversion Rate
then in effect.


 


(d)              
Each Holder of a Note, by the Holder’s acceptance thereof, agrees to take the following actions prior to the Company
Conversion Date if deemed necessary by the Company or, in the case of Notes represented by global notes, if required by DTC or
any successor Depositary: (i) surrendering the converted Note to the Conversion Agent, (ii) if the Holder requests any such shares
of Common Stock to be issued in a name other than the Holder’s name, furnishing appropriate endorsements and transfer documents
if required by the Registrar or the Conversion Agent, (iii) if the Note is held in book-entry form, completing and delivering to
the Depositary appropriate instructions pursuant to the Depositary’s book-entry conversion programs, (iv) if the Holder requests
any such shares of Common Stock to be issued in a name other than the Holder’s paying the funds, if any, required by Section
2.04 and, if required, all taxes or duties, if any, and (v) any other action necessary to effectuate the Company Conversion Option
as may be required by DTC or any successor Depositary. In the event that a Holder does not take any of the actions set forth in
the immediately preceding sentence prior to the Company Conversion Date, each Holder of a Note, by the Holder’s acceptance
thereof, authorizes and directs the Company to take any action on the Holder’s behalf to effect the Company Conversion Option,
including, if applicable, by initiating any process authorized by the Depositary or otherwise in accordance with the applicable
procedures of the Depositary, and appoints the Company such Holder’s attorney-in-fact for any and all such purposes. Such
appointment as attorney-in-fact is coupled with an interest and is irrevocable so long as any Note is Outstanding.


 


(e)              
Subject to Section 13.01(b), upon conversion pursuant to a Company Conversion Option, interest on the Notes or portion of
Notes so converted shall cease to accrue and such Notes shall cease to be outstanding and cease to be entitled to any benefit under
the Indenture, and the Holders thereof shall have no right in respect of such Notes except the shares of Common Stock to which
they are entitled pursuant to Section 14.02(a) and this Section 14.13, with a copy to the Trustee and the Conversion Agent (if
other than the Trustee).


 






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Article
15.

Repurchase of Notes at Option of Holders


 


Section
15.01.             
Intentionally Omitted.


 


Section
15.02.             
Repurchase at Option of Holders Upon a Fundamental Change.


 


(a)          
If a Fundamental
Change occurs at any time prior to the Maturity Date, each Holder shall have the right, at such Holder’s option, to require
the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount 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 interest to
Holders of record on such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal
amount of Notes to be repurchased pursuant to this Article 15.


 


(b)          
Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:


 


(i)         
delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”)
in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in
compliance with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in
each case on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date;
and


 


(ii)       
delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental
Change Repurchase Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent,
or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the Applicable Procedures, 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 or if the Notes are Global
Notes, the Fundamental Change Repurchase Notice must comply with applicable Depositary procedures;


 


(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.


 


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.


 






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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 Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall
provide to all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a written
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.  Simultaneously with providing such notice, the Company shall publish the information set forth
in the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may
use at that time.  Each Fundamental Change Company Notice shall specify:


 


(i)         
the events causing the Fundamental Change;


 


(ii)        
the effective date of the Fundamental Change;


 


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


 


(iv)       
the Fundamental Change Repurchase Price;


 


(v)        
the Fundamental Change Repurchase Date;


 


(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 validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and


 


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


 


No failure of the Company to give the foregoing
notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the
repurchase of the Notes pursuant to this Section 15.02.


 






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At the Company’s request given at
least three days prior to the anticipated date of the Fundamental Change Company Notice is to be sent (or such shorter period as
may be acceptable to the Trustee), the Trustee shall give such notice in the Company’s name and at the Company’s expense;
provided, however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the
Company.


 


(d)           
Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon
a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on
or prior to such date (including as a result of 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 Applicable
Procedures shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change
Repurchase Notice with respect thereto shall be deemed to have been withdrawn.


 


(e)          
Notwithstanding anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make
an offer to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same
time and otherwise in compliance with the requirements for an offer made by the Company as set forth above and such third party
purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise
in compliance with the requirements for an offer made by the Company as set forth above.


 


Section
15.03.          
Withdrawal of Fundamental Change Repurchase Notice


 


. (a) A Fundamental
Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to and received
by 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, which must be $1,000
or an integral multiple thereof;


 


(ii)        
if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is
being submitted, or if the Notes are Global Notes, the notice must comply with the Applicable Procedures; and


 


(iii)       
the principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which
must be $1,000 or an integral multiple thereof.


 


With respect to Notes held in book-entry
form, withdrawals shall be made in accordance with the Applicable Procedures.


 






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Section
15.04.             
Deposit of Fundamental Change Repurchase
Price.


 


(a)         The Company will
deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 11:00 a.m., New York City time, on the
Fundamental Change Repurchase Date, an amount of money sufficient to repurchase all of the Notes to be repurchased at the appropriate
Fundamental Change Repurchase Price.  Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the
Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental
Change Repurchase Date (provided the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry
transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in
the manner required by Section 15.02 by mailing checks for the amount payable to the Holders of such Notes entitled thereto as
they shall appear in the Note Register; provided, however, that payments to the Depositary shall be made by wire
transfer of immediately available funds to the account of the Depositary or its nominee.  The Trustee shall, promptly
after such payment and upon written demand by the Company, return to the Company any funds in excess of the Fundamental Change
Repurchase Price.


 


(b)         If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed
by the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such
Fundamental Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have
not been validly withdrawn, (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.


 


Section
15.05.             
Covenant to Comply with Applicable Laws Upon Repurchase of Notes.


 


In connection with
any repurchase offer, the Company will, if required:


 


(a)        
comply with the provisions of any 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;


 






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in each case, so as to permit the rights
and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.  To
the extent that the provisions of any securities laws or regulations enacted after the date the Company initially issues the Notes
conflict with the provisions of this Indenture relating to the Company’s obligations to purchase the Notes upon a Fundamental
Change, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under such provisions of this Indenture by virtue of such conflict.


 


Article
16.

No Optional Redemption


 


Section
16.01.             
No Optional Redemption.


 


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


   


Article
17.

Miscellaneous Provisions


 


Section
17.01.             
Provisions Binding on Company’s Successors.


 


All the covenants,
stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors and assigns whether
so expressed or not.


 


Section
17.02.             
Official Acts by Successor Corporation.


 


Any act or proceeding
by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer of the Company
shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other
entity that shall at the time be the lawful sole successor of the Company.


 


Section
17.03.             
Addresses for Notices, Etc.


 


Any notice or demand
that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders on the
Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with
the Trustee) to Fluidigm Corporation, 7000 Shoreline Court, Suite 100, South San Francisco, California, Attention: Chief Financial
Officer.  Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in a post
office letter box, electronic transmission or overnight delivery addressed to the Corporate Trust Office.


 


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


 






    	 	81	 



     


    

 


Any notice or communication delivered or
to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it
appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication
delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the Applicable Procedures and shall
be sufficiently given to it if so delivered within the time prescribed.


 


Failure to mail or deliver a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.  If a notice
or communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not the
addressee receives it.


 


In case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders by mail, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.


 


Section
17.04.             
Governing Law; Jurisdiction.


 


THIS INDENTURE AND
EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (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 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.


 


Section
17.05.             
Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee.


 


Upon any
application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the
Company shall, if requested by the Trustee, furnish to the Trustee an Officers’ Certificate and Opinion of Counsel
stating that such action is permitted by the terms of this Indenture and that all covenants and conditions precedent have
been complied with, subject in the case of the Opinion of Counsel to customary exceptions for opinions of this type.


 






    	 	82	 



     


    

 


Each Officers’ Certificate and Opinion
of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect to compliance
with this Indenture (other than the Officers’ Certificates provided for in Section 4.08) shall include (a) a statement that
the Person signing such certificate is familiar with the requested action and this Indenture; (b) a brief statement as to the nature
and scope of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement
that, in the judgment of such Person, he or she has made such examination or investigation as is necessary to enable him or her
to express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to whether
or not, in the judgment of such Person, such action is permitted by this Indenture.


 


Section
17.06.             
Legal Holidays.


 


In any case where
any Interest Payment Date, any Fundamental Change Repurchase Date, any Company Conversion Date or the Maturity Date is not a Business
Day, then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business
Day with the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.


 


Section
17.07.             
No Security Interest Created.


 


Nothing in this Indenture
or in the Notes, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.


 


Section
17.08.             
Benefits of Indenture.


 


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


 


Section
17.09.             
Table of Contents, Headings, Etc.


 


The table of contents
and the titles and headings of the articles and sections of this Indenture have been inserted for convenience of 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.


 






    	 	83	 



     


    

 


Section
17.10.             
Authenticating Agent.


 


The Trustee may
appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the
authentication and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes
hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04 as fully
to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those
Sections to authenticate and deliver Notes.  For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and delivery of such Notes “by the
Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating agent shall be
deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of
authentication.  Such authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 7.08.


 


Any corporation or other entity into which
any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting
from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation or other entity
succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating agent hereunder,
if such successor corporation or other entity is otherwise eligible under this Section 17.10, without the execution or filing of
any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation or other
entity.


 


Any authenticating agent may at any time
resign by giving written notice of resignation to the Trustee and to the Company.  The Trustee may at any time terminate
the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company.  Upon
receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease
to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give
written notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.


 


The Company agrees to pay to the authenticating
agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if
it determines such agent’s fees to be unreasonable.


 


The provisions of Section 7.02, Section
7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating agent.


 


If an authenticating agent is appointed
pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in the following form:


 


________________________________
,
 as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.


 


By: _____________________________

Authorized Signatory


 






    	 	84	 



     


    

 


Section
17.11.             
Execution in Counterparts.


 


This Indenture may
be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.  The exchange of copies of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu
of the original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or PDF shall
be deemed to be their original signatures for all purposes.


 


Section
17.12.             
Severability.


 


In the event any provision
of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity,
legality or enforceability of the remaining provisions shall not in any way be affected or impaired.


 


Section
17.13.             
Waiver of Jury Trial.


 


EACH OF THE COMPANY
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section
17.14.             
Force Majeure.


 


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


 


Section
17.15.             
Calculations.


 


Except as otherwise
provided herein, the Company shall be responsible for making all calculations called for under this Indenture and the Notes.  These
calculations include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the VWAPs, accrued
interest payable on the Notes and the Conversion Rate and Conversion Price of the Notes.  The Company shall make all
these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders
of Notes.  The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent,
and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations
without independent verification.  The Company will forward the Company’s calculations to any Holder of Notes upon
the written request of that Holder.


 






    	 	85	 



     


    

 


Section
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]


 






    	 	86	 



     


    

 


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


 


	FLUIDIGM CORPORATION	 
	 	 	 
	 	 	 
	By:	/s/ Vikram Jog	 
	 	Name: Vikram Jog	 
	 	Title:  Chief Financial Officer	 





 


 


	U.S. BANK NATIONAL ASSOCIATION, as Trustee	 
	 	 	 
	 	 	 
	By:	/s/ Bradley E. Scarbrough	 
	 	Name: Bradley E. Scarbrough	 
	 	Title:  Vice President	 


 


[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 FLUIDIGM CORPORATION (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 THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS
EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR



 






    	 	2	 



     


    

 


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



 


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



 


PRIOR TO THE REGISTRATION OF ANY TRANSFER
IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER FOR THE COMPANY TO DETERMINE THAT THE PROPOSED
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS
TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]1


 


NO AFFILIATE (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF FLUIDIGM CORPORATION OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT)
OF FLUIDIGM CORPORATION DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR
A BENEFICIAL INTEREST HEREIN.


 





 






1 The Restrictive Legend set
forth on this page [Insert if a Global Note: (other than the first paragraph hereof)] shall be deemed removed from the
face of this Note, without further action of the Company, the Trustee or the Holder(s) of this Note, at such time when the Company
delivers written notice to the Trustee of such deemed removal pursuant to Section 2.05(c) of the within-mentioned Indenture.


 






    	 	3	 



     


    

 


FLUIDIGM
CORPORATION



5.25% Convertible Senior Note due 2024


 


No. [_____] [Initially]2
$[_________]


 


CUSIP No. 34385P AE8 3


 


Fluidigm Corporation, 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.]4 [_______]5,
or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto]66
[of $[_______]]7, which amount, taken
together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed in aggregate
at any time $55,000,000, in accordance with the rules and Applicable Procedures, on December 1, 2024, and interest thereon as set
forth below.


 


This Note shall bear interest at the rate
of 5.25% per year from November 22, 2019, 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 December 1, 2024.  Interest is payable semi-annually in arrears
on each June 1 and December 1, commencing on June 1, 2020, to Holders of record at the close of business on the preceding January
15 and July 15 (whether or not such day is a Business Day), respectively.  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. Additional Interest will be payable as set forth in Section 4.06(d), Section 4.06(e) and Section
6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to
include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of such Section 4.06(d),
Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional Interest in any provision therein shall
not be construed as excluding Additional Interest in those provisions thereof where such express mention is not made.


 


Any Defaulted Amounts shall accrue interest
per annum at the rate borne by the Notes, 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.


 





 






2
Include if a global note.


 


3
At such time as the Company notifies the Trustee that the Restrictive Legend has been deemed removed pursuant to
Section 2.05(b) of the Indenture, the CUSIP number for this Note shall be deemed to be CUSIP No. 34385P AF5. Additional Notes
issued pursuant to Section 2.10 of the Indenture may have different CUSIP numbers.


 


4
Include if a global note.


 


5
Include if a physical note.


 


6
Include if a global note.


 


7
Include if a physical note.


 






    	 	4	 



     


    

 


The Company shall pay (or cause the Paying
Agent to 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 by wire transfer, 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 (or cause the Paying Agent to 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 the Corporate Trust
Office 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]


 






    	 	5	 



     


    

 


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


 


 


	FLUIDIGM CORPORATION	 
	 	 	 
	 	 	 
	By:	 	 
	 	Name:	 
	 	Title:  	 


   


Dated:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION



U.S. Bank National Association

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture.


 


 


	By:	 	 
	 	Authorized Signatory	 



  



    	 	6	 



     


    

 


[FORM OF REVERSE OF NOTE]


 


FLUIDIGM
CORPORATION

5.25% Convertible Senior Note due 2024


 


This Note is one of a duly authorized issue
of Notes of the Company, designated as its 5.25% Convertible Senior Notes due 2024 (the “Notes”), limited to
the aggregate principal amount of $55,000,000, all issued or to be issued under and pursuant to an Indenture dated as of November
22, 2019 (the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”),
to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the 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 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 Fundamental Change Repurchase Price, if applicable)
of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due 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.


 






    	 	7	 



     


    

 


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


 


The Notes shall not be redeemable at the
Company’s option and no sinking fund is provided for the Notes.  


 


Upon the occurrence of a Fundamental Change,
the Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s
Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to the Fundamental Change Repurchase Price.


 


Subject to the provisions of the Indenture,
the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified
in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, to
convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into shares of Common Stock at the Conversion
Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.


 


Subject to the provisions
of the Indenture, the Company has the right, at its option, during certain periods and upon the occurrence of certain conditions
specified in the Indenture, on or after December 1, 2021 to December 1, 2022, to convert any Notes or portion thereof that is $1,000
or an integral multiple thereof, into shares of Common Stock at the Conversion Rate specified in the Indenture, as adjusted from
time to time as provided in the Indenture, including with respect to any Additional Shares pursuant to Section 14.03 of the Indenture.


 


Subject to the provisions
of the Indenture, the Company has the right, at its option, during certain periods and upon the occurrence of certain conditions
specified in the Indenture, on or after December 1, 2022, to convert any Notes or portion thereof that is $1,000 or an integral
multiple thereof, into shares of Common Stock at the Conversion Rate specified in the Indenture, as adjusted from time to time
as provided in the Indenture.


 


The delivery of any shares
of Common Stock issuable upon conversion of any Notes held by the Investor shall be subject to the delivery requirements set forth
in Section 13.01 of the Indenture.


 






    	 	8	 



     


    

 


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.


 






    	 	9	 



     


    

 


SCHEDULE A8


 


SCHEDULE OF EXCHANGES OF NOTES



FLUIDIGM CORPORATION

5.25% Convertible Senior Notes due 2024


 


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


 


	Date of exchange 	 	Amount of decrease

 in principal amount of

 this Global Note 	 	Amount of increase in

 principal amount of

 this Global Note 	 	Principal amount of 

this Global Note 

following such 

decrease or increase 	 	Signature of

 authorized signatory

 of Trustee or 

Custodian 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 



 





 



 


8 Include if a global note.


 






    	 	10	 



     


    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


To:   U.S. Bank National Association






 


633 West Fifth Street, 24th Floor

Los Angeles, CA 90071

Attention: Fluidigm Corporation Administrator


 


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 shares of Common Stock in accordance with the terms of the Indenture referred to in this Note,
and directs that 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.	 




 






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	Fill in for registration of
    shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:	 
	 	 
	 	 
	(Name)	 
	 	 
	 	 
	(Street Address)	 
	 	 
	 	 
	(City, State and Zip Code)	 
	 	 
	Please print name and address	 




 


Principal amount to be converted (if less
than all):  $______,000


 


NOTICE:  The above signature(s)
of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.


 


	 	 
	Social Security or Other Taxpayer
Identification Number	 



 






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ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


To: U.S. Bank National Association



633 West Fifth Street, 24th Floor

Los Angeles, CA 90071

Attention: Fluidigm Corporation Administrator


 


The undersigned registered owner of this
Note hereby acknowledges receipt of a notice from Fluidigm Corporation (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.


 






    	 	13	 



     


    

  


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 Fluidigm Corporation 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,
and that continues to be effective at the time of such transfer; or


 


 ̈
Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or


 


 ̈
Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from
the registration requirements of the Securities Act of 1933, as amended.


 


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









 


NOTICE:  The signature on the
assignment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement
or any change whatever.


 






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