Exhibit 4.1


 


 


 


 


 


 


 





EXECUTION VERSION


 



 

 



 


 





THE CHEFS’ WAREHOUSE, INC.


 


 


and


 


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


 


as Trustee


 

 




INDENTURE


 


Dated as of November 22, 2019


 



 


1.875% Convertible Senior Notes due 2024


 


 


 



 

 



 


 


 


 


 


 


 


    	 	 	 



     


    

TABLE OF CONTENTS


 


Page


 




	Article 1.   Definitions; Rules of Construction	1
	Section 1.01.   Definitions.	1
	Section 1.02.   Other Definitions.	9
	Section 1.03.   Rules of Construction.	9
	Article 2.   The Notes	10
	Section 2.01.   Form, Dating and Denominations.	10
	Section 2.02.   Execution, Authentication and Delivery.	11
	Section 2.03.   Initial Notes and Additional Notes.	11
	Section 2.04.   Method of Payment.	12
	Section 2.05.   Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day.	12
	Section 2.06.   Registrar, Paying Agent and Conversion Agent.	13
	Section 2.07.   Paying Agent and Conversion Agent to Hold Property in Trust.	14
	Section 2.08.   Holder Lists.	14
	Section 2.09.   Legends.	14
	Section 2.10.   Transfers and Exchanges; Certain Transfer Restrictions.	16
	Section 2.11.   Exchange and Cancellation of Notes to Be Converted or Repurchased.	20
	Section 2.12.   Removal of Transfer Restrictions.	21
	Section 2.13.   Replacement Notes.	21
	Section 2.14.   Registered Holders; Certain Rights with Respect to Global Notes.	21
	Section 2.15.   Cancellation.	22
	Section 2.16.   Notes Held by the Company or its Affiliates.	22
	Section 2.17.   Temporary Notes.	22
	Section 2.18.   Outstanding Notes.	22
	Section 2.19.   Repurchases by the Company or its Subsidiaries.	23
	Section 2.20.   CUSIP and ISIN Numbers.	23
	Article 3.   Covenants	24
	Section 3.01.   Payment on Notes.	24
	Section 3.02.   Exchange Act Reports.	24
	Section 3.03.   Rule 144A Information.	24
	Section 3.04.   Additional Interest.	25
	Section 3.05.   Compliance and Default Certificates.	26
	Section 3.06.   Stay, Extension and Usury Laws.	26
	Section 3.07.   Corporate Existence.	26
	Section 3.08.   Restriction on Acquisition of Notes by the Company and its Affiliates.	27
	Section 3.09.   Further Instruments and Acts.	27
	Article 4.   Repurchase	27
	Section 4.01.   No Sinking Fund.	27
	Section 4.02.   Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change.	27



 






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	Section 4.03.   No Right of Redemption by the Company.	31
	Article 5.   Conversion	31
	Section 5.01.   Right to Convert.	31
	Section 5.02.   Conversion Procedures.	32
	Section 5.03.   Settlement upon Conversion.	33
	Section 5.04.   Reserve and Status of Common Stock Issued upon Conversion.	34
	Section 5.05.   Adjustments to the Conversion Rate.	35
	Section 5.06.   Voluntary Adjustments.	44
	Section 5.07.   Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change.	45
	Section 5.08.   Effect of Common Stock Change Event.	46
	Section 5.09.   Trustee Adjustment Disclaimer.	47
	Article 6.   Successors	47
	Section 6.01.   When the Company May Merge, Etc.	47
	Section 6.02.   Successor Corporation Substituted.	48
	Article 7.   Defaults and Remedies	48
	Section 7.01.   Events of Default.	48
	Section 7.02.   Acceleration.	50
	Section 7.03.   Sole Remedy for a Failure to Report.	51
	Section 7.04.   Other Remedies.	52
	Section 7.05.   Waiver of Past Defaults.	52
	Section 7.06.   Control by Majority.	52
	Section 7.07.   Limitation on Suits.	53
	Section 7.08.   Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment
and Conversion Consideration.	53
	Section 7.09.   Collection Suit by Trustee.	53
	Section 7.10.   Trustee May File Proofs of Claim.	54
	Section 7.11.   Priorities.	54
	Section 7.12.   Undertaking for Costs.	55
	Article 8.   Amendments, Supplements and Waivers	55
	Section 8.01.   Without the Consent of Holders.	55
	Section 8.02.   With the Consent of Holders.	56
	Section 8.03.   Notice of Amendments, Supplements and Waivers.	57
	Section 8.04.   Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.	57
	Section 8.05.   Notations and Exchanges.	58
	Section 8.06.   Trustee to Execute Supplemental Indentures.	58
	Article 9.   Satisfaction and Discharge	58
	Section 9.01.   Termination of Company’s Obligations.	58
	Section 9.02.   Repayment to Company.	59
	Section 9.03.   Reinstatement.	59



 






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	Article 10.   Trustee	59
	Section 10.01.   Duties of the Trustee.	59
	Section 10.02.   Rights of the Trustee.	60
	Section 10.03.   Individual Rights of the Trustee.	61
	Section 10.04.   Trustee’s Disclaimer.	61
	Section 10.05.   Notice of Defaults.	62
	Section 10.06.   Compensation and Indemnity.	62
	Section 10.07.   Replacement of the Trustee.	63
	Section 10.08.   Successor Trustee by Merger, Etc.	64
	Section 10.09.   Eligibility; Disqualification.	64
	Article 11.   Miscellaneous	64
	Section 11.01.   Notices.	64
	Section 11.02.   Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.	66
	Section 11.03.   Statements Required in Officer’s Certificate and Opinion of Counsel.	66
	Section 11.04.   Rules by the Trustee, the Registrar and the Paying Agent.	66
	Section 11.05.   No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders.	67
	Section 11.06.   Governing Law; Waiver of Jury Trial.	67
	Section 11.07.   Submission to Jurisdiction.	67
	Section 11.08.   No Adverse Interpretation of Other Agreements.	67
	Section 11.09.   Successors.	67
	Section 11.10.   Force Majeure.	68
	Section 11.11.   U.S.A. PATRIOT Act.	68
	Section 11.12.   Calculations.	68
	Section 11.13.   Severability.	68
	Section 11.14.   Counterparts.	68
	Section 11.15.   Table of Contents, Headings, Etc.	68
	Section 11.16.   Withholding Taxes.	69
	Exhibits	 
	Exhibit A: Form of Note	A-1
	Exhibit B-1: Form of Restricted Note
Legend	B1-1
	Exhibit B-2: Form of Global Note Legend	B2-1



 


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INDENTURE, dated
as of November 22, 2019, between The Chefs’ Warehouse, Inc., a Delaware corporation, as issuer (the “Company”),
and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).


 


Each party to this Indenture
(as defined below) agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as
defined below) of the Company’s 1.875% Convertible Senior Notes due 2024 (the “Notes”).


 


Article 1. Definitions;
Rules of Construction


Section
1.01.  Definitions.


“Additional Interest”
means any interest that accrues on any Note pursuant to Section 3.04.


 


“Affiliate”
has the meaning set forth in Rule 144 as in effect on the Issue Date.


 


“Authorized Denomination”
means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof.


 


“Bankruptcy Law”
means Title 11, United States Code, or any similar U.S. federal or state or non-U.S. law for the relief of debtors.


 


“Board of Directors”
means the board of directors of the Company or a committee of such board duly authorized to act on behalf of such board.


 


“Business Day”
means any day other than a Saturday, a Sunday or any day on which banking institutions are authorized or required by law, regulation
or executive order to close or be closed in the State of New York.


 


“Capital Stock”
of any Person means any and all shares of, interests in, rights to purchase, warrants or options for, participations in, or other
equivalents of, in each case however designated, the equity of such Person, but excluding any debt securities convertible into
such equity.


 


“Close of Business”
means 5:00 p.m., New York City time.


 


“Common Stock”
means the common stock, $0.01 par value per share, of the Company, subject to Section 5.08.


 


“Company”
means the Person named as such in the first paragraph of this Indenture and, subject to Article 6, its successors and assigns.


 


“Company Order”
means a written request or order signed on behalf of the Company by one (1) of its Officers and delivered to the Trustee.


 


“Conversion Date”
means, with respect to a Note, the first Business Day on which the requirements set forth in Section 5.02(A) to convert
such Note are satisfied.


 


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“Conversion Price”
means, as of any time, an amount equal to (A) one thousand dollars ($1,000) divided by (B) the Conversion Rate in effect
at such time.


 


“Conversion Rate”
initially means 22.6249 shares of Common Stock per $1,000 principal amount of Notes; provided, however, that the
Conversion Rate is subject to adjustment pursuant to Article 5; provided, further, that whenever this Indenture
refers to the Conversion Rate as of a particular date without setting forth a particular time on such date, such reference will
be deemed to be to the Conversion Rate immediately after the Close of Business on such date.


 


“Conversion Share”
means any share of Common Stock issued or issuable upon conversion of any Note.


 


“De-Legending
Deadline Date” means, with respect to any Note, the fifteenth (15th) day after the Free Trade Date of such Note; provided,
however, that if such fifteenth (15th) day is after a Regular Record Date and on or before the next Interest Payment Date,
then the De-Legending Deadline Date for such Note will instead be the Business Day immediately after such Interest Payment Date.


 


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


 


“Depositary”
means The Depository Trust Company or its successor.


 


“Depositary Participant”
means any member of, or participant in, the Depositary.


 


“Depositary Procedures”
means, with respect to any conversion, transfer, exchange or transaction involving a Global Note or any beneficial interest therein,
the rules and procedures of the Depositary applicable to such conversion, transfer, exchange or transaction.


 


“Ex-Dividend Date”
means, with respect to an issuance, dividend or distribution on the Common Stock, the first date on which shares of Common Stock
trade on the applicable exchange or in the applicable market, regular way, without the right to receive such issuance, dividend
or distribution (including pursuant to due bills or similar arrangements required by the relevant stock exchange). For the avoidance
of doubt, any alternative trading convention on the applicable exchange or market in respect of the Common Stock under a separate
ticker symbol or CUSIP number will not be considered “regular way” for this purpose.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.


 


“Free Trade Date”
means, with respect to any Note, the date that is one (1) year after the Last Original Issue Date of such Note.


 


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“Freely Tradable”
means, with respect to any Note, that such Note would be eligible to be offered, sold or otherwise transferred pursuant to Rule
144 or otherwise if held by a Person that is not an Affiliate of the Company, and that has not been an Affiliate of the Company
during the immediately preceding three (3) months, without any requirements as to volume, manner of sale, availability of current
public information or notice under the Securities Act (except that, during the six (6) month period beginning on, and including,
the date that is six (6) months after the Last Original Issue Date of such Note, any such requirement as to the availability of
current public information will be disregarded if the same is satisfied at that time); provided, however, that from
and after the Free Trade Date of such Note, such Note will not be “Freely Tradable” unless such Note (x) is not identified
by a “restricted” CUSIP or ISIN number; and (y) is not represented by any certificate that bears the Restricted Note
Legend. For the avoidance of doubt, whether a Note is deemed to be identified by a “restricted” CUSIP or ISIN number
or to bear the Restricted Note Legend is subject to Section 2.12.


 


“Fundamental
Change” means any of the following events:


(A)       a
“person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company
or its Wholly Owned Subsidiaries, files a Schedule TO (or any successor schedule, form or report) 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 below) of shares of the Company’s common equity representing more than fifty percent (50%) of the voting power of
all of the Company’s then-outstanding common equity;


 


(B)       the
consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially
all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person, other than one of the Company’s Wholly
Owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger,
consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the
Common Stock is exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash
or other property; provided, however, that any merger, consolidation, share exchange or combination of the Company
pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the
Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately
after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring
company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each
other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);


 


(C)       the
Company’s stockholders approve any plan or proposal for the liquidation or dissolution of the Company; or


 


(D)       the
Common Stock ceases to be listed on any of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market
(or any of their respective successors);


 


provided, however, that a transaction
or event described in clause (A) or (B) above will not constitute a Fundamental Change if at least ninety percent
(90%) of the consideration received or to be received by the holders of Common Stock (excluding cash payments for fractional shares
or pursuant to dissenters rights), in connection with such transaction or event, consists of shares of common stock listed on any
of The New York Stock Exchange, The NASDAQ Global Market or The NASDAQ Global Select Market (or any of their respective successors),
or that will be so listed when issued or exchanged in connection with such transaction or event, and such transaction or event
constitutes a Common Stock Change Event whose Reference Property consists of such consideration.


 


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For the purposes of this
definition, (x) any transaction or event described in both clause (A) and in clause (B)(i) or (ii) above (without
regard to the proviso in clause (B)) will be deemed to occur solely pursuant to clause (B) above (subject to such
proviso); and (y) whether a Person is a “beneficial owner” and whether shares are “beneficially owned”
will be determined in accordance with Rule 13d-3 under the Exchange Act.


 


For the avoidance of doubt,
a merger or other business combination transaction effected to change the Company’s jurisdiction of incorporation and that
satisfies the proviso immediately following clause (D) above will constitute neither a Fundamental Change nor a Make-Whole
Fundamental Change.


 


“Fundamental Change
Repurchase Date” means the date fixed for the repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental
Change.


 


“Fundamental Change
Repurchase Notice” means a notice (including a notice substantially in the form of the “Fundamental Change Repurchase
Notice” set forth in Exhibit A) containing the information, or otherwise complying with the requirements, set forth
in Section 4.02(F)(i) and Section 4.02(F)(ii).


 


“Fundamental Change
Repurchase Price” means the cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental
Change, calculated pursuant to Section 4.02(D).


 


“Global Note”
means a Note that is represented by a certificate substantially in the form set forth in Exhibit A, registered in the name
of the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee, and deposited with the Trustee,
as custodian for the Depositary.


 


“Global Note Legend”
means a legend substantially in the form set forth in Exhibit B-2.


 


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


 


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


 


“Initial Purchasers”
means Jefferies LLC, BMO Capital Markets Corp., BofA Securities, Inc. and Wells Fargo Securities, LLC.


 


“Interest Payment
Date” means, with respect to a Note, each June 1 and December 1 of each year, commencing on June 1, 2020 (or commencing
on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity Date is an Interest
Payment Date.


 


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“Issue Date”
means November 22, 2019.


 


“Last Original
Issue Date” means (A) with respect to any Notes issued pursuant to the Purchase Agreement, and any Notes issued in exchange
therefor or in substitution thereof, the Issue Date; and (B) with respect to any Notes issued pursuant to Section 2.03(B),
and any Notes issued in exchange therefor or in substitution thereof, either (i) the later of (x) the date such Notes are originally
issued and (y) the last date any Notes are originally issued as part of the same offering pursuant to the exercise of an option
granted to the initial purchaser(s) of such Notes to purchase additional Notes; or (ii) such other date as is specified in an Officer’s
Certificate delivered to the Trustee before the original issuance of such Notes.


 


“Last Reported
Sale Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price
is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average
of the average last bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite
transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common
Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will
be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets
Group Inc. or a similar organization. If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price
will be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such Trading Day
from a nationally recognized independent investment banking firm selected by the Company, which may include any of the Initial
Purchasers. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price.


 


“Make-Whole Fundamental
Change” means a Fundamental Change (determined after giving effect to the proviso immediately after clause (D)
of the definition thereof, but without regard to the proviso to clause (B)(ii) of such definition).


 


“Make-Whole
Fundamental Change Conversion Period” means, with respect to a Make-Whole Fundamental Change, the period from, and including,
the effective date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such effective
date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change, to, but excluding, the related Fundamental
Change Repurchase Date).


“Market Disruption
Event” means, with respect to any date, the occurrence or existence, during the one-half hour period ending at the scheduled
close of trading on such date on the principal U.S. national or regional securities exchange or other market on which the Common
Stock is listed for trading or trades, of any material suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the relevant exchange or otherwise) in the Common Stock or in any options contracts or futures contracts
relating to the Common Stock.


 


“Maturity Date”
means December 1, 2024.


 


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“Note Agent”
means any Registrar, Paying Agent or Conversion Agent.


 


“Notes”
means the 1.875% Convertible Senior Notes due 2024 issued by the Company pursuant to this Indenture.


 


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


 


“Officer’s
Certificate” means a certificate that is signed on behalf of the Company by one (1) of its Officers and that meets the
requirements of Section 11.03.


 


“Open of Business”
means 9:00 a.m., New York City time.


 


“Opinion of Counsel”
means an opinion, from legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries) reasonably
acceptable to the Trustee, that meets the requirements of Section 11.03, subject to customary qualifications and exclusions.


 


“Person”
or “person” means any individual, corporation, partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division
or series of a limited liability company, limited partnership or trust will constitute a separate “person” under this
Indenture.


 


“Physical Note”
means a Note (other than a Global Note) that is represented by a certificate substantially in the form set forth in Exhibit
A, registered in the name of the Holder of such Note and duly executed by the Company and authenticated by the Trustee.


 


“Purchase Agreement”
means that certain Purchase Agreement, dated November 19, 2019, between the Company and the Initial Purchasers.


 


“Regular Record
Date” has the following meaning with respect to an Interest Payment Date: (A) if such Interest Payment Date occurs on
June 1, the immediately preceding May 15; and (B) if such Interest Payment Date occurs on December 1, the immediately preceding
November 15.


 


“Repurchase Upon
Fundamental Change” means the repurchase of any Note by the Company pursuant to Section 4.02.


 


“Responsible Officer”
means (A) any officer within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of such officers; and (B) with respect
to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of, and
familiarity with, the particular subject.


 


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“Restricted Note
Legend” means a legend substantially in the form set forth in Exhibit B-1.


 


“Restricted Stock
Legend” means, with respect to any Conversion Share, a legend substantially to the effect that the offer and sale of
such Conversion Share have not been registered under the Securities Act and that such Conversion Share cannot be sold or otherwise
transferred except pursuant to a transaction that is registered under the Securities Act or that is exempt from, or not subject
to, the registration requirements of the Securities Act.


 


“Rule 144”
means Rule 144 under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.


 


“Rule 144A”
means Rule 144A under the Securities Act (or any successor rule thereto), as the same may be amended from time to time.


 


“Scheduled Trading
Day” means any day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded. If the Common Stock is not so listed or traded, then “Scheduled
Trading day” means a Business Day.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended.


 


“Security”
means any Note or Conversion Share.


 


“Significant Subsidiary”
means, with respect to any Person, any Subsidiary of such Person that constitutes a “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act; provided that if a Subsidiary meets the criteria of clause
(3) of the definition of “significant subsidiary” in Article 1, Rule 1-02 but not clause (1) or (2) thereof, then such
Subsidiary will be deemed not to be a Significant Subsidiary of that Person unless such Subsidiary’s income from continuing
operations before income taxes, exclusive of amounts attributable to any non-controlling interests, for the last completed fiscal
year before the date of determination exceeds fifteen million dollars ($15,000,000).


 


“Special Interest”
means any interest that accrues on any Note pursuant to Section 7.03.


 


“Stock Price”
has the following meaning for any Make-Whole Fundamental Change: (A) if the holders of Common Stock receive only cash in consideration
for their shares of Common Stock in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause
(B) of the definition of “Fundamental Change,” then the Stock Price is the amount of cash paid per share of Common
Stock in such Make-Whole Fundamental Change; and (B) in all other cases, the Stock Price is the average of the Last Reported Sale
Prices per share of Common Stock for the five (5) consecutive Trading Days ending on, and including, the Trading Day immediately
before the effective date of such Make-Whole Fundamental Change.


 


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“Subsidiary”
means, with respect to any Person, (A) any corporation, association or other business entity (other than a partnership or limited
liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency, but after giving effect to any voting agreement or stockholders’ agreement that effectively
transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association
or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries
of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts,
distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership
or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries
of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests
or otherwise; and (ii) such Person or any one or more of the other Subsidiaries of such Person is a controlling general partner
of, or otherwise controls, such partnership or limited liability company.


 


“Trading Day”
means any day on which (A) trading in the Common Stock generally occurs on the principal U.S. national or regional securities exchange
on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock is then traded; and (B) there is no Market Disruption Event. If the Common
Stock is not so listed or traded, then “Trading Day” means a Business Day.


 


“Transfer-Restricted
Security” means any Security that constitutes a “restricted security” (as defined in Rule 144); provided,
however, that such Security will cease to be a Transfer-Restricted Security upon the earliest to occur of the following
events:


(A)       such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to a registration
statement that was effective under the Securities Act at the time of such sale or transfer;


 


(B)       such
Security is sold or otherwise transferred to a Person (other than the Company or an Affiliate of the Company) pursuant to an available
exemption (including Rule 144) from the registration and prospectus-delivery requirements of, or in a transaction not subject to,
the Securities Act and, immediately after such sale or transfer, such Security ceases to constitute a “restricted security”
(as defined in Rule 144); and


 


(C)       such
Security is eligible for resale, by a Person that is not an Affiliate of the Company and that has not been an Affiliate of the
Company during the immediately preceding three (3) months, pursuant to Rule 144 without any limitations thereunder as to volume,
manner of sale, availability of current public information or notice.


 


The Trustee is under no
obligation to determine whether any Security is a Transfer-Restricted Security and may conclusively rely on an Officer’s
Certificate with respect thereto.


 


“Trust Indenture
Act” means the U.S. Trust Indenture Act of 1939, as amended.


 


    	 	- 8 - 	 



     


    

“Trustee”
means the Person named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions
of this Indenture and, thereafter, means such successor.


 


“Wholly Owned
Subsidiary” of a Person means any Subsidiary of such Person all of the outstanding Capital Stock or other ownership interests
of which (other than directors’ qualifying shares) are owned by such Person or one or more Wholly Owned Subsidiaries of such
Person.


 


Section
1.02.  Other Definitions.





	Term	 	Defined in Section


	“Additional Shares”	5.07(A)
	“Business Combination Event”	6.01(A)
	“Common Stock Change Event”	5.08(A)
	“Conversion Agent”	2.06(A)
	“Conversion Consideration”	5.03(A)
	“Default Interest”	2.05(B)
	“Defaulted Amount”	2.05(B)
	“Event of Default”	7.01(A)
	“Expiration Date”	5.05(A)(v)
	“Expiration Time”	5.05(A)(v)
	“Fundamental Change Notice”	4.02(E)
	“Fundamental Change Repurchase Right”	4.02(A)
	“Initial Notes”	2.03(A)
	“Paying Agent”	2.06(A)
	“Reference Property”	5.08(A)
	“Reference Property Unit”	5.08(A)
	“Register”	2.06(B)
	“Reporting Event of Default”	7.03(A)
	“Specified Courts”	11.07
	“Spin-Off”	5.05(A)(iii)(2)
	“Spin-Off Valuation Period”	5.05(A)(iii)(2)
	“Stated Interest”	2.05(A)
	“Successor Corporation”	6.01(A)
	“Successor Person”	5.08(A)
	“Tender/Exchange Offer Valuation Period”	5.05(A)(v)





 


Section
1.03.  Rules of Construction.


For purposes of
this Indenture:


(A)       “or”
is not exclusive;


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


    	 	- 9 - 	 



     


    

(C)       “will”
expresses a command;


(D)       the
“average” of a set of numerical values refers to the arithmetic average of such numerical values;


(E)       a
merger involving, or a transfer of assets by, a limited liability company, limited partnership or trust will be deemed to include
any division of or by, or an allocation of assets to a series of, such limited liability company, limited partnership or trust,
or any unwinding of any such division or allocation;


(F)       words
in the singular include the plural and in the plural include the singular, unless the context requires otherwise;


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


(H)       references
to currency mean the lawful currency of the United States of America, unless the context requires otherwise;


(I)       the
exhibits, schedules and other attachments to this Indenture are deemed to form part of this Indenture; and


(J)       the
term “interest,” when used with respect to a Note, includes any Additional Interest and Special Interest, unless
the context requires otherwise.


Article 2.  The
Notes


Section
2.01.  Form, Dating and Denominations.


The Notes and the Trustee’s
certificate of authentication will be substantially in the form set forth in Exhibit A. The Notes will bear the legends
required by Section 2.09 and may bear notations, legends or endorsements required by law, stock exchange rule or usage or
the Depositary. Each Note will be dated as of the date of its authentication.


 


Except to the extent otherwise
provided in a Company Order delivered to the Trustee in connection with the issuance and authentication thereof, the Notes will
be issued initially in the form of one or more Global Notes. Global Notes may be exchanged for Physical Notes, and Physical Notes
may be exchanged for Global Notes, only as provided in Section 2.10.


 


The Notes will be issuable
only in registered form without interest coupons and only in Authorized Denominations.


 


Each certificate representing
a Note will bear a unique registration number that is not affixed to any other certificate representing another outstanding Note.


 


The terms contained in
the Notes constitute part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, agree to such terms and to be bound thereby; provided, however, that, to the extent that
any provision of any Note conflicts with the provisions of this Indenture, the provisions of this Indenture will control for purposes
of this Indenture and such Note.


 


    	 	- 10 - 	 



     


    

Section
2.02.  Execution, Authentication and Delivery.


(A)       Due
Execution by the Company. At least one (1) duly authorized Officer will sign the Notes on behalf of the Company by manual or
facsimile signature. A Note’s validity will not be affected by the failure of any Officer whose signature is on any Note
to hold, at the time such Note is authenticated, the same or any other office at the Company.


(B)       Authentication
by the Trustee and Delivery.


(i)       No
Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized
signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.


(ii)       The
Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to manually sign the certificate
of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company
in accordance with Section 2.02(A); and (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee
to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated.
If such Company Order also requests the Trustee to deliver such Note to any Holder or to the Depositary, then the Trustee will
promptly deliver such Note in accordance with such Company Order.


(iii)       The
Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. A duly appointed authenticating agent
may authenticate Notes whenever the Trustee may do so under this Indenture, and a Note authenticated as provided in this Indenture
by such an agent will be deemed, for purposes of this Indenture, to be authenticated by the Trustee. Each duly appointed authenticating
agent will have the same rights to deal with the Company as the Trustee would have if it were performing the duties that the authentication
agent was validly appointed to undertake.


Section
2.03.  Initial Notes and Additional Notes.


(A)       Initial
Notes. On the Issue Date, there will be originally issued one hundred fifty million dollars ($150,000,000) aggregate principal
amount of Notes, subject to the provisions of this Indenture (including Section 2.02). Notes issued pursuant to this Section
2.03(A), and any Notes issued in exchange therefor or in substitution thereof, are referred to in this Indenture as the “Initial
Notes.”


(B)       Additional
Notes. The Company may, without notice to or the consent of any Holder and subject to the provisions of this Indenture (including
Section 2.02), originally issue additional Notes with the same terms as the Initial Notes (except, to the extent applicable,
with respect to the date as of which interest begins to accrue on such additional Notes and the first Interest Payment Date and
the Last Original Issue Date of such additional Notes), which additional Notes will, subject to the foregoing, be considered to
be part of the same series of, and rank equally and ratably with all other, Notes issued under this Indenture; provided,
however, that if any such additional Notes are not fungible with other Notes issued under this Indenture for federal income
tax or federal securities laws purposes, then such additional Notes will be identified by a separate CUSIP number.


    	 	- 11 - 	 



     


    

Section
2.04.  Method of Payment.


(A)       Global
Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date
or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for,
any Global Note to the Depositary by wire transfer of immediately available funds no later than the time the same is due as provided
in this Indenture.


(B)       Physical
Notes. The Company will pay, or cause the Paying Agent to pay, the principal (whether due upon maturity on the Maturity Date
or repurchase on a Fundamental Change Repurchase Date or otherwise) of, interest on, and any cash Conversion Consideration for,
any Physical Note no later than the time the same is due as provided in this Indenture as follows: (i) if the principal amount
of such Physical Note is at least five million dollars ($5,000,000) (or such lower amount as the Company may choose in its sole
and absolute discretion) and the Holder of such Physical Note entitled to such payment has delivered to the Paying Agent or the
Trustee, no later than the time set forth in the immediately following sentence, a written request that the Company make such payment
by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available funds to such
account; and (ii) in all other cases, by check mailed to the address of the Holder of such Physical Note entitled to such payment
as set forth in the Register. To be timely, such written request must be so delivered no later than the Close of Business on the
following date: (x) with respect to the payment of any interest due on an Interest Payment Date, the immediately preceding Regular
Record Date; (y) with respect to any cash Conversion Consideration, the relevant Conversion Date; and (z) with respect to any other
payment, the date that is fifteen (15) calendar days immediately before the date such payment is due.


Section
2.05.  Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day.


(A)       Accrual
of Interest. Each Note will accrue interest at a rate per annum equal to 1.875% (the “Stated Interest”),
plus any Additional Interest and Special Interest that may accrue pursuant to Sections 3.04 and 7.03, respectively.
Stated Interest on each Note will (i) accrue from, and including, the most recent date to which Stated Interest has been paid or
duly provided for (or, if no Stated Interest has theretofore been paid or duly provided for, the date set forth in the certificate
representing such Note as the date from, and including, which Stated Interest will begin to accrue in such circumstance) to, but
excluding, the date of payment of such Stated Interest; and (ii) be, subject to Sections 4.02(D) and 5.02(D) (but
without duplication of any payment of interest), payable semi-annually in arrears on each Interest Payment Date, beginning on the
first Interest Payment Date set forth in the certificate representing such Note, to the Holder of such Note as of the Close of
Business on the immediately preceding Regular Record Date. Stated Interest, and, if applicable, Additional Interest and Special
Interest, on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.


    	 	- 12 - 	 



     


    

(B)       Defaulted
Amounts. If the Company fails to pay any amount (a “Defaulted Amount”) payable on a Note on or before the
due date therefor as provided in this Indenture, then, regardless of whether such failure constitutes an Event of Default, (i)
such Defaulted Amount will forthwith cease to be payable to the Holder of such Note otherwise entitled to such payment; (ii) to
the extent lawful, interest (“Default Interest”) will accrue on such Defaulted Amount at a rate per annum equal
to the rate per annum at which Stated Interest accrues, from, and including, such due date to, but excluding, the date of payment
of such Defaulted Amount and Default Interest; (iii) such Defaulted Amount and Default Interest will be paid on a payment date
selected by the Company to the Holder of such Note as of the Close of Business on a special record date selected by the Company,
provided that such special record date must be no more than fifteen (15), nor less than ten (10), calendar days before such
payment date; and (iv) at least fifteen (15) calendar days before such special record date, the Company will send notice to the
Trustee and the Holders that states such special record date, such payment date and the amount of such Defaulted Amount and Default
Interest to be paid on such payment date.


(C)       Delay
of Payment when Payment Date is Not a Business Day. If the due date for a payment on a Note as provided in this Indenture is
not a Business Day, then, notwithstanding anything to the contrary in this Indenture or the Notes, such payment may be made on
the immediately following Business Day and no interest will accrue on such payment as a result of the related delay. Solely for
purposes of the immediately preceding sentence, a day on which the applicable place of payment is authorized or required by law
or executive order to close or be closed will be deemed not to be a “Business Day.”


Section
2.06.  Registrar, Paying Agent and Conversion Agent.


(A)       Generally.
The Company will maintain (i) an office or agency in the continental United States where Notes may be presented for registration
of transfer or for exchange (the “Registrar”); (ii) an office or agency in the continental United States where
Notes may be presented for payment (the “Paying Agent”); and (iii) an office or agency in the continental United
States where Notes may be presented for conversion (the “Conversion Agent”). If the Company fails to maintain
a Registrar, Paying Agent or Conversion Agent, then the Trustee will act as such. For the avoidance of doubt, the Company or any
of its Subsidiaries may act as Registrar, Paying Agent or Conversion Agent without prior notice to Holders.


(B)       Duties
of the Registrar. The Registrar will keep a record (the “Register”) of the names and addresses of the Holders,
the Notes held by each Holder and the transfer, exchange, repurchase and conversion of Notes. Absent manifest error, the entries
in the Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in
the Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into
written form reasonably promptly.


(C)       Co-Agents;
Company’s Right to Appoint Successor Registrars, Paying Agents and Conversion Agents. The Company may appoint one or
more co-Registrars, co-Paying Agents and co-Conversion Agents, each of whom will be deemed to be a Registrar, Paying Agent or Conversion
Agent, as applicable, under this Indenture. Subject to Section 2.06(A), the Company may change any Registrar, Paying Agent
or Conversion Agent (including appointing itself or any of its Subsidiaries to act in such capacity) without notice to any Holder.
The Company will notify the Trustee (and, upon request, any Holder) of the name and address of each Note Agent, if any, not a party
to this Indenture and will enter into an appropriate agency agreement with each such Note Agent, which agreement will implement
the provisions of this Indenture that relate to such Note Agent.


    	 	- 13 - 	 



     


    

(D)       Initial
Appointments. The Company appoints the Trustee as the initial Paying Agent, the initial Registrar and the initial Conversion
Agent.


Section
2.07.  Paying Agent and Conversion Agent to Hold Property in Trust.


The Company will require
each Paying Agent or Conversion Agent that is not the Trustee to agree in writing that such Note Agent will (A) hold in trust for
the benefit of Holders or the Trustee all money and other property held by such Note Agent for payment or delivery due on the Notes;
and (B) notify the Trustee of any default by the Company in making any such payment or delivery. The Company, at any time, may,
and the Trustee, while any Default continues, may, require a Paying Agent or Conversion Agent to pay or deliver, as applicable,
all money and other property held by it to the Trustee, after which payment or delivery, as applicable, such Note Agent (if not
the Company or any of its Subsidiaries) will have no further liability for such money or property. If the Company or any of its
Subsidiaries acts as Paying Agent or Conversion Agent, then (A) it will segregate and hold in a separate trust fund for the benefit
of the Holders or the Trustee all money and other property held by it as Paying Agent or Conversion Agent; and (B) references in
this Indenture or the Notes to the Paying Agent or Conversion Agent holding cash or other property, or to the delivery of cash
or other property to the Paying Agent or Conversion Agent, in each case for payment or delivery to any Holders or the Trustee or
with respect to the Notes, will be deemed to refer to cash or other property so segregated and held separately, or to the segregation
and separate holding of such cash or other property, respectively. Upon the occurrence of any event pursuant to in clause (ix)
or (x) of Section 7.01(A) with respect to the Company (or with respect to any Subsidiary of the Company acting as
Paying Agent or Conversion Agent), the Trustee will serve as the Paying Agent or Conversion Agent, as applicable, for the Notes.


 


Section
2.08.  Holder Lists.


If the Trustee is not the
Registrar, the Company will furnish to the Trustee, no later than seven (7) Business Days before each Interest Payment Date, and
at such other times as the Trustee may request, a list, in such form and as of such date or time as the Trustee may reasonably
require, of the names and addresses of the Holders.


 


Section
2.09.  Legends.


(A)       Global
Note Legend. Each Global Note will bear the Global Note Legend (or any similar legend, not inconsistent with this Indenture,
required by the Depositary for such Global Note).


    	 	- 14 - 	 



     


    

(B)       [Reserved].


(C)       Restricted
Note Legend. Subject to Section 2.12,


(i)       each
Note that is a Transfer-Restricted Security will bear the Restricted Note Legend; and


(ii)       if
a Note is issued in exchange for, in substitution of, or to effect a partial conversion of, another Note (such other Note being
referred to as the “old Note” for purposes of this Section 2.09(C)(ii)), including pursuant to Section 2.10(B),
2.10(C), 2.11 or 2.13, such Note will bear the Restricted Note Legend if such old Note bore the Restricted
Note Legend at the time of such exchange or substitution, or on the related Conversion Date with respect to such conversion, as
applicable; provided, however, that such Note need not bear the Restricted Note Legend if such Note does not constitute
a Transfer-Restricted Security immediately after such exchange or substitution, or as of such Conversion Date, as applicable.


(D)       Other
Legends. A Note may bear any other legend or text, not inconsistent with this Indenture, as may be required by applicable law
or by any securities exchange or automated quotation system on which such Note is traded or quoted.


(E)       Acknowledgement
and Agreement by the Holders. A Holder’s acceptance of any Note bearing any legend required by this Section 2.09
will constitute such Holder’s acknowledgement of, and agreement to comply with, the restrictions set forth in such legend.


(F)       Restricted
Stock Legend.


(i)       Each
Conversion Share will bear the Restricted Stock Legend if the Note upon the conversion of which such Conversion Share was issued
was (or would have been had it not been converted) a Transfer-Restricted Security at the time such Conversion Share was issued;
provided, however, that such Conversion Share need not bear the Restricted Stock Legend if the Company determines,
in its reasonable discretion, that such Conversion Share need not bear the Restricted Stock Legend.


(ii)       Notwithstanding
anything to the contrary in this Section 2.09(F), a Conversion Share need not bear a Restricted Stock Legend if such Conversion
Share is issued in an uncertificated form that does not permit affixing legends thereto, provided the Company takes measures
(including the assignment thereto of a “restricted” CUSIP number) that it reasonably deems appropriate to enforce the
transfer restrictions referred to in the Restricted Stock Legend.


Section
2.10.  Transfers and Exchanges; Certain Transfer Restrictions.


(A)       Provisions
Applicable to All Transfers and Exchanges.


(i)       Subject
to this Section 2.10, Physical Notes and beneficial interests in Global Notes may be transferred or exchanged from time
to time and the Registrar will record each such transfer or exchange in the Register.


    	 	- 15 - 	 



     


    

(ii)       Each
Note issued upon transfer or exchange of any other Note (such other Note being referred to as the “old Note” for purposes
of this Section 2.10(A)(ii)) or portion thereof in accordance with this Indenture will be the valid obligation of the Company,
evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as such old Note or portion thereof,
as applicable.


(iii)       The
Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange or conversion
of Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion of
Notes, other than exchanges pursuant to Sections 2.11, 2.17 or 8.05 not involving any transfer.


(iv)       Notwithstanding
anything to the contrary in this Indenture or the Notes, a Note may not be transferred or exchanged in part unless the portion
to be so transferred or exchanged is in an Authorized Denomination.


(v)       The
Trustee will have no obligation or duty to monitor, determine or inquire as to compliance with any transfer restrictions imposed
under this Indenture or applicable law with respect to any Security, other than to require the delivery of such certificates or
other documentation or evidence as expressly required by this Indenture and to examine the same to determine substantial compliance
as to form with the requirements of this Indenture.


(vi)       Each
Note issued upon transfer of, or in exchange for, another Note will bear each legend, if any, required by Section 2.09.


(vii)       Upon
satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Note, the Company will cause such transfer
or exchange to be effected as soon as reasonably practicable but in no event later than the second (2nd) Business Day after the
date of such satisfaction.


(viii)       For
the avoidance of doubt, and subject to the terms of this Indenture, as used in this Section 2.10, an “exchange”
of a Global Note or a Physical Note includes (x) an exchange effected for the sole purpose of removing any Restricted Note Legend
affixed to such Global Note or Physical Note; and (y) if such Global Note or a Physical Note is identified by a “restricted”
CUSIP number, an exchange effected for the sole purpose of causing such Global Note or a Physical Note to be identified by an “unrestricted”
CUSIP number.


(B)       Transfers
and Exchanges of Global Notes.


(i)       Subject
to the immediately following sentence, no Global Note may be transferred or exchanged in whole except (x) by the Depositary to
a nominee of the Depositary; (y) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (z)
by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. No Global Note (or any
portion thereof) may be transferred to, or exchanged for, a Physical Note; provided, however, that a Global Note
will be exchanged, pursuant to customary procedures, for one or more Physical Notes if:


    	 	- 16 - 	 



     


    

(1)       (x)
the Depositary notifies the Company or the Trustee that the Depositary is unwilling or unable to continue as depositary for such
Global Note or (y) the Depositary ceases to be a “clearing agency” registered under Section 17A of the Exchange Act
and, in each case, the Company fails to appoint a successor Depositary within ninety (90) days of such notice or cessation;


(2)       an
Event of Default has occurred and is continuing and the Company, the Trustee or the Registrar has received a written request from
the Depositary, or from a holder of a beneficial interest in such Global Note, to exchange such Global Note or beneficial interest,
as applicable, for one or more Physical Notes; or


(3)       the
Company, in its sole discretion, permits the exchange of any beneficial interest in such Global Note for one or more Physical Notes
at the request of the owner of such beneficial interest.


(ii)       Upon
satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Global Note (or any portion thereof):


(1)       the
Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Exchanges
of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global Note having
a principal amount of zero, the Company may (but is not required to) instruct the Trustee to cancel such Global Note pursuant to
Section 2.15);


(2)       if
required to effect such transfer or exchange, then the Trustee will reflect any resulting increase of the principal amount of any
other Global Note by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such other
Global Note;


(3)       if
required to effect such transfer or exchange, then the Company will issue, execute and deliver, and the Trustee will authenticate,
in each case in accordance with Section 2.02, a new Global Note bearing each legend, if any, required by Section 2.09;
and


(4)       if
such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical Notes,
then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section
2.02, one or more Physical Notes that are in Authorized Denominations (not to exceed, in the aggregate, the principal amount
of such Global Note to be so exchanged), are registered in such name(s) as the Depositary specifies (or as otherwise determined
pursuant to customary procedures) and bear each legend, if any, required by Section 2.09.


(iii)       Each
transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Depositary Procedures.


    	 	- 17 - 	 



     


    

(C)       Transfers
and Exchanges of Physical Notes.


(i)       Subject
to this Section 2.10, a Holder of a Physical Note may (x) transfer such Physical Note (or any portion thereof in an Authorized
Denomination) to one or more other Person(s); (y) exchange such Physical Note (or any portion thereof in an Authorized Denomination)
for one or more other Physical Notes in Authorized Denominations having an aggregate principal amount equal to the aggregate principal
amount of the Physical Note (or portion thereof) to be so exchanged; and (z) if then permitted by the Depositary Procedures, transfer
such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in one or more
Global Notes; provided, however, that, to effect any such transfer or exchange, such Holder must:


(1)       surrender
such Physical Note to be transferred or exchanged to the office of the Registrar, together with any endorsements or transfer instruments
reasonably required by the Company, the Trustee or the Registrar; and


(2)       deliver
such certificates, documentation or evidence as may be required pursuant to Section 2.10(D).


(ii)       Upon
the satisfaction of the requirements of this Indenture to effect a transfer or exchange of any Physical Note (such Physical Note
being referred to as the “old Physical Note” for purposes of this Section 2.10(C)(ii)) of a Holder (or any portion
of such old Physical Note in an Authorized Denomination):


(1)       such
old Physical Note will be promptly cancelled pursuant to Section 2.15;


(2)       if
such old Physical Note is to be transferred or exchanged only in part, then the Company will issue, execute and deliver, and the
Trustee will authenticate, in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized
Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be transferred
or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;


(3)       in
the case of a transfer:


(a)       to
the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred
in the form of one or more Global Notes, the Trustee will reflect an increase of the principal amount of one or more existing Global
Notes by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of such Global Note(s),
which increase(s) are in Authorized Denominations and aggregate to the principal amount to be so transferred, and which Global
Note(s) bear each legend, if any, required by Section 2.09; provided, however, that if such transfer cannot
be so effected by notation on one or more existing Global Notes (whether because no Global Notes bearing each legend, if any, required
by Section 2.09 then exist, because any such increase will result in any Global Note having an aggregate principal amount
exceeding the maximum aggregate principal amount permitted by the Depositary or otherwise), then the Company will issue, execute
and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, one or more Global Notes that
(x) are in Authorized Denominations and have an aggregate principal amount equal to the principal amount to be so transferred;
and (y) bear each legend, if any, required by Section 2.09; and


    	 	- 18 - 	 



     


    

(b)       to
a transferee that will hold its interest in such old Physical Note (or such portion thereof) to be so transferred in the form of
one or more Physical Notes, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance
with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount
equal to the principal amount to be so transferred; (y) are registered in the name of such transferee; and (z) bear each legend,
if any, required by Section 2.09; and


(4)       in
the case of an exchange, the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance
with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount
equal to the principal amount to be so exchanged; (y) are registered in the name of the Person to whom such old Physical Note was
registered; and (z) bear each legend, if any, required by Section 2.09.


(D)       Requirement
to Deliver Documentation and Other Evidence. If a Holder of any Note that is identified by a “restricted” CUSIP
number or that bears a Restricted Note Legend or is a Transfer-Restricted Security requests to:


(i)       cause
such Note to be identified by an “unrestricted” CUSIP number;


(ii)       remove
such Restricted Note Legend; or


(iii)       register
the transfer of such Note to the name of another Person,


then the Company, the Trustee and the Registrar
may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company, the Trustee
and the Registrar such certificates or other documentation or evidence as the Company, the Trustee and the Registrar may reasonably
require to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable
securities laws; provided, however, that no such certificates, documentation or evidence need be so delivered on
and after the Free Trade Date with respect to such Note unless the Company determines, in its reasonable discretion, that such
Note is not eligible to be offered, sold or otherwise transferred pursuant to Rule 144 or otherwise without any requirements as
to volume, manner of sale, availability of current public information or notice under the Securities Act.


 


    	 	- 19 - 	 



     


    

(E)       Transfers
of Notes Subject to Repurchase or Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, the
Company, the Trustee and the Registrar will not be required to register the transfer of or exchange any Note that (i) has been
surrendered for conversion, except to the extent that any portion of such Note is not subject to conversion; or (ii) is subject
to a Fundamental Change Repurchase Notice validly delivered, and not withdrawn, pursuant to Section 4.02(F), except to the
extent that any portion of such Note is not subject to such notice or the Company fails to pay the applicable Fundamental Change
Repurchase Price when due.


Section
2.11.  Exchange and Cancellation of Notes to Be Converted or Repurchased.


(A)       Partial
Conversions and Repurchases of Physical Notes. If only a portion of a Physical Note of a Holder is to be converted pursuant
to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, then, as soon as reasonably practicable after
such Physical Note is surrendered for such conversion or repurchase, the Company will cause such Physical Note to be exchanged,
pursuant and subject to Section 2.10(C), for (i) one or more Physical Notes that are in Authorized Denominations and have
an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased,
as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the
principal amount to be so converted or repurchased, as applicable, which Physical Note will be converted or repurchased, as applicable,
pursuant to the terms of this Indenture; provided, however, that the Physical Note referred to in this clause (ii)
need not be issued at any time after which such principal amount subject to such conversion or repurchase, as applicable, is deemed
to cease to be outstanding pursuant to Section 2.18.


(B)       Cancellation
of Converted and Repurchased Notes.


(i)       Physical
Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section 2.11(A))
of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, then,
promptly after the later of the time such Physical Note (or such portion) is deemed to cease to be outstanding pursuant to Section
2.18 and the time such Physical Note is surrendered for such conversion or repurchase, as applicable, (1) such Physical Note
will be cancelled pursuant to Section 2.15; and (2) in the case of a partial conversion or repurchase, the Company will
issue, execute and deliver to such Holder, and the Trustee will authenticate, in each case in accordance with Section 2.02,
one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to the principal
amount of such Physical Note that is not to be so converted or repurchased; (y) are registered in the name of such Holder; and
(z) bear each legend, if any, required by Section 2.09.


(ii)       Global
Notes. If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased pursuant to
a Repurchase Upon Fundamental Change, then, promptly after the time such Note (or such portion) is deemed to cease to be outstanding
pursuant to Section 2.18, the Trustee will reflect a decrease of the principal amount of such Global Note in an amount equal
to the principal amount of such Global Note to be so converted or repurchased, as applicable, by notation on the “Schedule
of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if the principal amount of such Global
Note is zero following such notation, cancel such Global Note pursuant to Section 2.15).


    	 	- 20 - 	 



     


    

Section
2.12.  Removal of Transfer Restrictions.


Without limiting the generality
of any other provision of this Indenture (including Section 3.04), the Restricted Note Legend affixed to any Note will be
deemed, pursuant to this Section 2.12 and the footnote to such Restricted Note Legend, to be removed therefrom upon the
Company’s delivery to the Trustee of notice, signed on behalf of the Company by one (1) of its Officers, to such effect (and,
for the avoidance of doubt, such notice need not be accompanied by an Officer’s Certificate or an Opinion of Counsel in order
to be effective to cause such Restricted Note Legend to be deemed to be removed from such Note). If such Note bears a “restricted”
CUSIP or ISIN number at the time of such delivery, then, upon such delivery, such Note will be deemed, pursuant to this Section
2.12 and the footnotes to the CUSIP and ISIN numbers set forth on the face of the certificate representing such Note, to thereafter
bear the “unrestricted” CUSIP and ISIN numbers identified in such footnotes; provided, however, that
if such Note is a Global Note and the Depositary thereof requires a mandatory exchange or other procedure to cause such Global
Note to be identified by “unrestricted” CUSIP and ISIN numbers in the facilities of such Depositary, then (i) the Company
will effect such exchange or procedure as soon as reasonably practicable; and (ii) for purposes of Section 3.04 and the
definition of Freely Tradable, such Global Note will not be deemed to be identified by “unrestricted” CUSIP and ISIN
numbers until such time as such exchange or procedure is effected.


 


Section
2.13.  Replacement Notes.


If a Holder of any Note
claims that such Note has been mutilated, lost, destroyed or wrongfully taken, then the Company will issue, execute and deliver,
and the Trustee will authenticate, in each case in accordance with Section 2.02, a replacement Note upon surrender to the
Trustee of such mutilated Note, or upon delivery to the Trustee of evidence of such loss, destruction or wrongful taking reasonably
satisfactory to the Trustee and the Company. In the case of a lost, destroyed or wrongfully taken Note, the Company and the Trustee
may require the Holder thereof to provide such security or indemnity that is reasonably satisfactory to the Company and the Trustee
to protect the Company and the Trustee from any loss that any of them may suffer if such Note is replaced.


 


Every replacement Note
issued pursuant to this Section 2.13 will be an additional obligation of the Company and will be entitled to all of the
benefits of this Indenture equally and ratably with all other Notes issued under this Indenture.


 


Section
2.14.  Registered Holders; Certain Rights with Respect to Global Notes.


Only the Holder of a Note
will have rights under this Indenture as the owner of such Note. Without limiting the generality of the foregoing, Depositary Participants
will have no rights as such under this Indenture with respect to any Global Note held on their behalf by the Depositary or its
nominee, or by the Trustee as its custodian, and the Company, the Trustee and the Note Agents, and their respective agents, may
treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever; provided, however, that
(A) the Holder of any Global Note may grant proxies and otherwise authorize any Person, including Depositary Participants and Persons
that hold interests in Notes through Depositary Participants, to take any action that such Holder is entitled to take with respect
to such Global Note under this Indenture or the Notes; and (B) the Company and the Trustee, and their respective agents, may give
effect to any written certification, proxy or other authorization furnished by the Depositary.


 


    	 	- 21 - 	 



     


    

Section
2.15.  Cancellation.


Without limiting the generality
of Section 3.08, the Company or its Subsidiaries may at any time deliver Notes to the Trustee for cancellation. The Registrar,
the Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange,
payment or conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures.
Without limiting the generality of Section 2.03(B), the Company may not originally issue new Notes to replace Notes that
it has paid or that have been cancelled upon transfer, exchange, payment or conversion.


 


Section
2.16.  Notes Held by the Company or its Affiliates.


Without limiting the generality
of Section 3.08, in determining whether the Holders of the required aggregate principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or any of its Affiliates will be deemed not to be outstanding; provided,
however, that, for purposes of determining whether the Trustee is protected in relying on any such direction, waiver or
consent, only Notes that the Trustee knows are so owned will be so disregarded.


 


Section
2.17.  Temporary Notes.


Until definitive Notes
are ready for delivery, the Company may issue, execute and deliver, and the Trustee will authenticate, in each case in accordance
with Section 2.02, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. The Company will promptly prepare, issue, execute and deliver, and
the Trustee will authenticate, in each case in accordance with Section 2.02, definitive Notes in exchange for temporary
Notes. Until so exchanged, each temporary Note will in all respects be entitled to the same benefits under this Indenture as definitive
Notes.


 


Section
2.18.  Outstanding Notes.


(A)       Generally.
The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated,
excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the Trustee
for cancellation in accordance with Section 2.15; (ii) assigned a principal amount of zero by notation on the “Schedule
of Exchanges of Interests in the Global Note” forming part of any a Global Note representing such Note; (iii) paid in full
in accordance with this Indenture; or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause
(B), (C) or (D) of this Section 2.18.


    	 	- 22 - 	 



     


    

(B)       Replaced
Notes. If a Note is replaced pursuant to Section 2.13, then such Note will cease to be outstanding at the time of its
replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “bona
fide purchaser” under applicable law.


(C)       Maturing
Notes and Notes Subject to Repurchase. If, on a Fundamental Change Repurchase Date or the Maturity Date, the Paying Agent holds
money sufficient to pay the aggregate Fundamental Change Repurchase Price or principal amount, respectively, together, in each
case, with the aggregate interest, in each case due on such date, then (unless there occurs a Default in the payment of any such
amount) (i) the Notes (or portions thereof) to be repurchased, or that mature, on such date will be deemed, as of such date, to
cease to be outstanding, except to the extent provided in Sections 4.02(D) or 5.02(D); and (ii) the rights of the
Holders of such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof),
other than the right to receive the Fundamental Change Repurchase Price or principal amount, as applicable, of, and accrued and
unpaid interest on, such Notes (or such portions thereof), in each case as provided in this Indenture.


(D)       Notes
to Be Converted. At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted, such
Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest due, pursuant
to Section 5.03(A) or Section 5.02(D), upon such conversion) be deemed to cease to be outstanding, except to the
extent provided in Section 5.02(D).


(E)       Cessation
of Accrual of Interest. Except as provided in Sections 4.02(D) or 5.02(D), interest will cease to accrue on each
Note from, and including, the date that such Note is deemed, pursuant to this Section 2.18, to cease to be outstanding,
unless there occurs a default in the payment or delivery of any cash or other property due on such Note.


Section
2.19.  Repurchases by the Company or its Subsidiaries.


Without limiting the generality
of Section 2.15, the Company or its Subsidiaries may, from time to time, repurchase Notes in open market purchases or otherwise,
whether through private or public tender or exchange offers, cash-settled swaps or other cash-settled derivatives, without delivering
prior notice to Holders. Any Notes so repurchased by the Company or any of its Subsidiaries shall be promptly delivered to the
Trustee for cancellation pursuant to Section 2.15.


 


Section
2.20.  CUSIP and ISIN Numbers.


Subject to Section 2.12,
the Company may use one or more CUSIP or ISIN numbers to identify any of the Notes, and, if so, the Company and the Trustee will
use such CUSIP or ISIN number(s) in notices to Holders; provided, however, that (i) the Trustee makes no representation
as to the correctness or accuracy of any such CUSIP or ISIN number; and (ii) the effectiveness of any such notice will not be affected
by any defect in, or omission of, any such CUSIP or ISIN number. The Company will promptly notify the Trustee of any change in
the CUSIP or ISIN number(s) identifying any Notes.


 


    	 	- 23 - 	 



     


    

Article 3.  Covenants


Section
3.01.Payment on Notes.


(A)       Generally.
The Company will pay or cause to be paid all the principal of, the Fundamental Change Repurchase Price for, interest on, and other
amounts due with respect to, the Notes on the dates and in the manner set forth in this Indenture.


(B)       Deposit
of Funds. Before 10:00 A.M., New York City time, on each Fundamental Change Repurchase Date or Interest Payment Date, and on
the Maturity Date or any other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there
to be deposited, with the Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due
on the applicable Notes on such date. The Paying Agent will return to the Company, as soon as practicable, any money not required
for such purpose.


Section
3.02.Exchange Act Reports.


(A)       Generally.
The Company will send to the Trustee copies of all reports that the Company is required to file with the SEC pursuant to Section
13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is required to file the same
(after giving effect to all applicable grace periods under the Exchange Act); provided, however, that the Company
need not send to the Trustee any material for which the Company has received, or is seeking in good faith and has not been denied,
confidential treatment by the SEC. Any report that the Company files with the SEC through the EDGAR system (or any successor thereto)
will be deemed to be sent to the Trustee at the time such report is so filed via the EDGAR system (or such successor). Upon the
request of any Holder, the Trustee will provide to such Holder a copy of any report that the Company has sent the Trustee pursuant
to this Section 3.02(A), other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence.


(B)       Trustee’s
Disclaimer. The Trustee need not determine whether the Company has filed any material via the EDGAR system (or such successor).
The sending or filing of reports pursuant to Section 3.02(A) will not be deemed to constitute actual or constructive notice
or knowledge to the Trustee of any information contained, or determinable from information contained, therein, including the Company’s
compliance with any of its covenants under this Indenture.


Section
3.03.  Rule 144A Information.


If the Company is not subject
to Section 13 or 15(d) of the Exchange Act at any time when any Notes or shares of Common Stock issuable upon conversion of the
Notes are outstanding and constitute “restricted securities” (as defined in Rule 144), then the Company (or its successor)
will promptly provide, to the Trustee and, upon written request, to any Holder, beneficial owner or prospective purchaser of such
Notes or shares, 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 pursuant to Rule 144A. The Company (or its successor) will take such further action as any Holder
or beneficial owner of such Notes or shares may reasonably request to enable such Holder or beneficial owner to sell such Notes
or shares pursuant to Rule 144A.


 


    	 	- 24 - 	 



     


    

Section
3.04.  Additional Interest.


(A)       Accrual
of Additional Interest.


(i)       If,
at any time during the six (6) month period beginning on, and including, the date that is six (6) months after the Last Original
Issue Date of any Note,


(1)       the
Company fails to timely file any report (other than Form 8-K reports) that the Company is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act (after giving effect to all applicable grace periods thereunder); or


(2)       such
Note is not otherwise Freely Tradable,


then Additional Interest will accrue
on such Note for each day during such period on which such failure is continuing or such Note is not Freely Tradable.


 


(ii)       In
addition, Additional Interest will accrue on a Note on each day on which such Note is not Freely Tradable on or after the De-Legending
Deadline Date for such Note.


(B)       Amount
and Payment of Additional Interest. Any Additional Interest that accrues on a Note pursuant to Section 3.04(A) will
be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal
to one quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days on which Additional Interest
accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof; provided,
however, that in no event will Additional Interest, together with any Special Interest, accrue on any day on a Note at a
combined rate per annum that exceeds one half of one percent (0.50%), regardless of the number of events or circumstances giving
rise to requirements to pay such Additional Interest or Special Interest. For the avoidance of doubt, any Additional Interest that
accrues on a Note will be in addition to the Stated Interest that accrues on such Note and, subject to the proviso of the immediately
preceding sentence, in addition to any Special Interest that accrues on such Note.


(C)       Notice
of Accrual of Additional Interest; Trustee’s Disclaimer. The Company will send notice to the Holder of each Note, and
to the Trustee, of the commencement and termination of any period in which Additional Interest accrues on such Note. In addition,
if Additional Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Additional
Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating (i)
that the Company is obligated to pay Additional Interest on such Note on such date of payment; and (ii) the amount of such Additional
Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any Additional Interest is
payable or the amount thereof.


    	 	- 25 - 	 



     


    

Section
3.05.  Compliance and Default Certificates.


(A)       Annual
Compliance Certificate. Within ninety (90) days after December 28, 2019 and each fiscal year of the Company ending thereafter,
the Company will deliver an Officer’s Certificate to the Trustee stating (i) that the signatory thereto has supervised a
review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards determining whether any
Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default or Event of Default
has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action the Company is taking
or proposes to take with respect thereto).


(B)       Default
Certificate. If a Default or Event of Default occurs, then the Company will deliver an Officer’s Certificate to the Trustee,
within thirty (30) days of the occurrence thereof, describing the same and what action the Company is taking or proposes to take
with respect thereto, except that the Company is not required to deliver such notice if such Default has been cured. The Trustee
will not be deemed to have notice of any Default or Event of Default unless written notice has been received by a Responsible Officer
of the Trustee at the corporate trust office of the Trustee.


Section
3.06.  Stay, Extension and Usury Laws.


To the extent that it may
lawfully do so, the Company (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants
or the performance of this Indenture; and (B) expressly waives all benefits or advantages of any such law and agrees that it will
not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Trustee by this Indenture, but
will suffer and permit the execution of every such power as though no such law has been enacted.


 


Section
3.07.  Corporate Existence.


Subject to Article
6, the Company will cause to preserve and keep in full force and effect:


(A)       its
corporate existence in accordance with the organizational documents of the Company; and


(B)       the
material rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries;


provided, however, that the Company
need not preserve or keep in full force and effect any such license or franchise if the Board of Directors determines that (x)
the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a
whole; and (y) the loss thereof is not, individually or in the aggregate, materially adverse to the Holders.


 


    	 	- 26 - 	 



     


    

Section
3.08.  Restriction on Acquisition of Notes by the Company and its Affiliates.


The Company will promptly
deliver to the Trustee for cancellation all Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired.
The Company will use commercially reasonable efforts to prevent any of its controlled Affiliates from acquiring any Note (or any
beneficial interest therein). For the avoidance of doubt, Subsidiaries of the Company may acquire Notes in accordance with the
other provisions of this Section 3.08 and Section 2.19 so long as any such Notes are promptly delivered to the Trustee
for cancellation.


 


Section
3.09.  Further Instruments and Acts.


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


 


Article 4.  Repurchase


Section
4.01.  No Sinking Fund.


No sinking fund is required
to be provided for the Notes.


 


Section
4.02.  Right of Holders to Require the Company to Repurchase Notes upon a Fundamental Change.


(A)       Right
of Holders to Require the Company to Repurchase Notes Upon a Fundamental Change. Subject to the other terms of this Section
4.02, if a Fundamental Change occurs, then each Holder will have the right (the “Fundamental Change Repurchase Right”)
to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) on the Fundamental
Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price.


(B)       Repurchase
Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated and such acceleration has not
been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase Upon Fundamental Change (including as a result
of the payment of the related Fundamental Change Repurchase Price, and any related interest pursuant to the proviso to Section
4.02(D), on such Fundamental Change Repurchase Date), then (i) the Company may not repurchase any Notes pursuant to this Section
4.02; and (ii) the Company will cause any Notes theretofore surrendered for such Repurchase upon Fundamental Change to be returned
to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the
Company, the Trustee or the Paying Agent of the applicable beneficial interest in such Notes in accordance with the Depositary
Procedures).


(C)       Fundamental
Change Repurchase Date. The Fundamental Change Repurchase Date for any Fundamental Change will be a Business Day of the Company’s
choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related
Fundamental Change Notice pursuant to Section 4.02(E).


    	 	- 27 - 	 



     


    

(D)       Fundamental
Change Repurchase Price. The Fundamental Change Repurchase Price for any Note to be repurchased upon a Repurchase Upon Fundamental
Change following a Fundamental Change is an amount in cash equal to the principal amount of such Note plus accrued and unpaid interest
on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change; provided, however,
that if such Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date,
then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Repurchase
Upon Fundamental Change, to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest
that would have accrued on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such
Note remained outstanding through such Interest Payment Date, if such Fundamental Change Repurchase Date is before such Interest
Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to, but
excluding, such Fundamental Change Repurchase Date. For the avoidance of doubt, if an Interest Payment Date is not a Business Day
within the meaning of Section 2.05(C) and such Fundamental Change Repurchase Date occurs on the Business Day immediately
after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding, such Interest Payment Date will
be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as of the Close of Business on the immediately
preceding Regular Record Date; and (y) the Fundamental Change Repurchase Price will include interest on Notes to be repurchased
from, and including, such Interest Payment Date.


(E)       Fundamental
Change Notice. On or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change, the Company will
(x) send to each Holder, the Trustee and the Paying Agent a notice of such Fundamental Change (a “Fundamental Change Notice”)
and (y) substantially contemporaneously therewith, issue a press release through such national newswire service as the Company
then uses (or publish the same through such other widely disseminated public medium as the Company then uses, including its website)
containing the information set forth in the Fundamental Change Notice.


Such Fundamental
Change Notice must state:


(i)       briefly,
the events causing such Fundamental Change;


(ii)       the
effective date of such Fundamental Change;


(iii)       the
procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this Section 4.02, including
the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental
Change Repurchase Notice;


(iv)       the
Fundamental Change Repurchase Date for such Fundamental Change;


(v)       the
Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such Fundamental
Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing
of the interest payment payable pursuant to the proviso to Section 4.02(D));


    	 	- 28 - 	 



     


    

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


(vii)       the
Conversion Rate in effect on the date of such Fundamental Change Notice and a description and quantification of any adjustments
to the Conversion Rate that may result from such Fundamental Change (including pursuant to Section 5.07);


(viii)       that
Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be delivered to the Paying
Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;


(ix)       that
Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered may be converted
only if such Fundamental Change Repurchase Notice is withdrawn in accordance with this Indenture; and


(x)       the
CUSIP and ISIN numbers, if any, of the Notes.


Neither the failure to
deliver a Fundamental Change Notice nor any defect in a Fundamental Change Notice will limit the Fundamental Change Repurchase
Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.


 


(F)       Procedures
to Exercise the Fundamental Change Repurchase Right.


(i)       Delivery
of Fundamental Change Repurchase Notice and Notes to Be Repurchased. To exercise its Fundamental Change Repurchase Right for
a Note following a Fundamental Change, the Holder thereof must deliver to the Paying Agent:


(1)       before
the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date (or such later time
as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and


(2)       such
Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global Note).


The Paying Agent will promptly deliver
to the Company a copy of each Fundamental Change Repurchase Notice that it receives.


 


(ii)       Contents
of Fundamental Change Repurchase Notices. Each Fundamental Change Repurchase Notice with respect to a Note must state:


(1)       if
such Note is a Physical Note, the certificate number of such Note;


(2)       the
principal amount of such Note to be repurchased, which must be an Authorized Denomination; and


    	 	- 29 - 	 



     


    

(3)       that
such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;


provided, however,
that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the Depositary Procedures (and
any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy
the requirements of this Section 4.02(F)).


 


(iii)       Withdrawal
of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice with respect to
a Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent
at any time before the Close of Business on the Business Day immediately before the related Fundamental Change Repurchase Date.
Such withdrawal notice must state:


(1)       if
such Note is a Physical Note, the certificate number of such Note;


(2)       the
principal amount of such Note to be withdrawn, which must be an Authorized Denomination; and


(3)       the
principal amount of such Note, if any, that remains subject to such Fundamental Change Repurchase Notice, which must be an Authorized
Denomination;


provided, however,
that if such Note is a Global Note, then such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal
notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 4.02(F)).


 


Upon receipt of any such withdrawal
notice with respect to a Note (or any portion thereof), the Paying Agent will (x) promptly deliver a copy of such withdrawal notice
to the Company; and (y) if such Note is surrendered to the Paying Agent, cause such Note (or such portion thereof in accordance
with Section 2.11, treating such Note as having been then surrendered for partial repurchase in the amount set forth in
such withdrawal notice as remaining subject to repurchase) to be returned to the Holder thereof (or, if applicable with respect
to any Global Note, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable
beneficial interest in such Note in accordance with the Depositary Procedures).


 


(G)       Payment
of the Fundamental Change Repurchase Price. Without limiting the Company’s obligation to deposit the Fundamental Change
Repurchase Price within the time proscribed by Section 3.01(B), the Company will cause the Fundamental Change Repurchase
Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder
thereof on or before the later of (i) the applicable Fundamental Change Repurchase Date; and (ii) the date (x) such Note is delivered
to the Paying Agent (in the case of a Physical Note) or (y) the Depositary Procedures relating to the repurchase, and the delivery
to the Paying Agent, of such Holder’s beneficial interest in such Note to be repurchased are complied with (in the case of
a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.02(D) on any Note to be
repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether such Note
is delivered or such Depositary Procedures are complied with pursuant to the first sentence of this Section 4.02(G).


    	 	- 30 - 	 



     


    

(H)       Third
Party May Conduct Repurchase Offer In Lieu of the Company. Notwithstanding anything to the contrary in this Section 4.02,
the Company will be deemed to satisfy its obligations under this Section 4.02 if (i) one or more third parties conduct any
Repurchase Upon Fundamental Change and related offer to repurchase Notes otherwise required by this Section 4.02 in a manner
that would have satisfied the requirements of this Section 4.02 if conducted directly by the Company; and (ii) an owner
of a beneficial interest in any Note repurchased by such third party or parties will not receive a lesser amount (as a result of
taxes, additional expenses or for any other reason) than such owner would have received had the Company repurchased such Note.


(I)       Compliance
with Applicable Securities Laws. To the extent applicable, the Company will comply with all federal and state securities laws
in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act
and filing any required Schedule TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change
in the manner set forth in this Indenture; provided, however, that to the extent that the Company’s obligations
pursuant to this Section 4.02 conflict with any law or regulation that is applicable to the Company and enacted after the
Issue Date, the Company’s compliance with such law or regulation will not be considered to be a Default of such obligations.


(J)       Repurchase
in Part. Subject to the terms of this Section 4.02, Notes may be repurchased pursuant to a Repurchase Upon Fundamental
Change in part, but only in Authorized Denominations. Provisions of this Section 4.02 applying to the repurchase of a Note
in whole will equally apply to the repurchase of a permitted portion of a Note.


Section
4.03.  No Right of Redemption by the Company.


The Company does not have
the right to redeem the Notes at its election.


 


Article 5.  Conversion


Section
5.01.  Right to Convert.


(A)       Generally.
Subject to the provisions of this Article 5, each Holder may, at its option, convert such Holder’s Notes into Conversion
Consideration.


(B)       Conversions
in Part. Subject to the terms of this Indenture, Notes may be converted in part, but only in Authorized Denominations. Provisions
of this Article 5 applying to the conversion of a Note in whole will equally apply to conversions of a permitted portion
of a Note.


    	 	- 31 - 	 



     


    

(C)       When
Notes May Be Converted.


(i)       Generally.
A Holder may convert its Notes at any time until the Close of Business on the Scheduled Trading Day immediately before the Maturity
Date.


(ii)       Limitations
and Closed Periods. Notwithstanding anything to the contrary in this Indenture or the Notes:


(1)       Notes
may be surrendered for conversion only after the Open of Business and before the Close of Business on a day that is a Business
Day;


(2)       in
no event may any Note be converted after the Close of Business on the Scheduled Trading Day immediately before the Maturity Date;
and


(3)       if
a Fundamental Change Repurchase Notice is validly delivered pursuant to Section 4.02(F) with respect to any Note, then such
Note may not be converted, except to the extent (a) such Note is not subject to such notice; (b) such notice is withdrawn in accordance
with Section 4.02(F); or (c) the Company fails to pay the Fundamental Change Repurchase Price for such Note in accordance
with this Indenture.


Section
5.02.  Conversion Procedures.


(A)       Generally.


(i)       Global
Notes. To convert a beneficial interest in a Global Note, the owner of such beneficial interest must (1) comply with the Depositary
Procedures for converting such beneficial interest (at which time such conversion will become irrevocable); and (2) pay any amounts
due pursuant to Section 5.02(D) or Section 5.02(E).


(ii)       Physical
Notes. To convert all or a portion of a Physical Note, the Holder of such Note must (1) complete, manually sign and deliver
to the Conversion Agent the conversion notice attached to such Physical Note or a facsimile of such conversion notice; (2) deliver
such Physical Note to the Conversion Agent (at which time such conversion will become irrevocable); (3) furnish any endorsements
and transfer documents that the Company or the Conversion Agent may require; and (4) pay any amounts due pursuant to Section
5.02(D) or Section 5.02(E).


(B)       Effect
of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof), such Note (or such
portion thereof) will be deemed to cease to be outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder
of such Note (or such portion thereof) as of the Close of Business on such Conversion Date), except to the extent provided in Section
5.02(D).


(C)       Holder
of Record of Conversion Shares. The Person in whose name any share of Common Stock is issuable upon conversion of any Note
will be deemed to become the holder of record of such share as of the Close of Business on the Conversion Date for such conversion.


    	 	- 32 - 	 



     


    

(D)       Interest
Payable upon Conversion in Certain Circumstances. If the Conversion Date of a Note is after a Regular Record Date and before
the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled,
notwithstanding such conversion (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to this sentence),
to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued
on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding
through such Interest Payment Date); and (ii) the Holder surrendering such Note for conversion must deliver to the Conversion Agent,
at the time of such surrender, an amount of cash equal to the amount of such interest referred to in clause (i) above; provided,
however, that the Holder surrendering such Note for conversion need not deliver such cash (w) if such Conversion Date occurs
after the Regular Record Date immediately before the Maturity Date; (x) if the Company has specified a Fundamental Change Repurchase
Date that is after such Regular Record Date and on or before the Business Day immediately after such Interest Payment Date; or
(y) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.
For the avoidance of doubt, as a result of, and without limiting the generality of, the foregoing, if a Note is converted with
a Conversion Date that is after the Regular Record Date immediately before the Maturity Date, then the Company will pay, as provided
above, the interest that would have accrued on such Note to, but excluding, the Maturity Date. For the avoidance of doubt, if the
Conversion Date of a Note to be converted is on an Interest Payment Date, then the Holder of such Note at the Close of Business
on the Regular Record Date immediately before such Interest Payment Date will be entitled to receive, on such Interest Payment
Date, the unpaid interest that has accrued on such Note to, but excluding, such Interest Payment Date, and such Note, when surrendered
for conversion, need not be accompanied by any cash amount pursuant to the first sentence of this Section 5.02(D).


(E)       Taxes
and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax or duty
due on the issue of any shares of Common Stock upon such conversion; provided, however, that if any tax or duty is
due because such Holder requested such shares to be registered in a name other than such Holder’s name, then such Holder
will pay such tax or duty and, until having received a sum sufficient to pay such tax or duty, the Conversion Agent may refuse
to deliver any such shares to be issued in a name other than that of such Holder.


(F)       Conversion
Agent to Notify Company of Conversions. If any Note is submitted for conversion to the Conversion Agent or the Conversion Agent
receives any notice of conversion with respect to a Note, then the Conversion Agent will promptly notify the Company and the Trustee
of such occurrence, together with any other information reasonably requested by the Company, and will cooperate with the Company
to determine the Conversion Date for such Note.


Section
5.03.  Settlement upon Conversion.


(A)       Conversion
Consideration.


(i)       Generally.
Subject to Section 5.03(A)(ii) and Section 5.03(A)(iii), the type and amount of consideration (the “Conversion
Consideration”) due in respect of each $1,000 principal amount of a Note to be converted will be a number of shares of
Common Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion.


    	 	- 33 - 	 



     


    

(ii)       Cash
in Lieu of Fractional Shares. If the number of shares of Common Stock deliverable pursuant to Section 5.03(A)(i) upon
conversion of any Note is not a whole number, then such number will be rounded down to the nearest whole number and the Company
will deliver, in addition to the other consideration due upon such conversion, cash in lieu of the related fractional share in
an amount equal to the product of (1) such fraction and (2) the Last Reported Sale Price per share of Common Stock on the Conversion
Date for such conversion (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day).


(iii)       Conversion
of Multiple Notes by a Single Holder. If a Holder converts more than one (1) Note on a single Conversion Date, then the Conversion
Consideration due in respect of such conversion will (in the case of any Global Note, to the extent permitted by, and practicable
under, the Depositary Procedures) be computed based on the total principal amount of Notes converted on such Conversion Date by
such Holder.


(B)       Delivery
of the Conversion Consideration. Except as set forth in Sections 5.05(A) and 5.05(D), the Company will pay or
deliver, as applicable, the Conversion Consideration due upon the conversion of any Note to the Holder on or before the second
(2nd) Business Day immediately after the Conversion Date for such conversion.


(C)       Deemed
Payment of Principal and Interest; Settlement of Accrued Interest Notwithstanding Conversion. If a Holder converts a Note,
then the Company will not adjust the Conversion Rate to account for any accrued and unpaid interest on such Note, and, except as
provided in Section 5.02(D), the Company’s delivery of the Conversion Consideration due in respect of such conversion
will be deemed to fully satisfy and discharge the Company’s obligation to pay the principal of, and accrued and unpaid interest,
if any, on, such Note to, but excluding the Conversion Date. As a result, except as provided in Section 5.02(D), any accrued
and unpaid interest on a converted Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited.


Section
5.04.  Reserve and Status of Common Stock Issued upon Conversion.


(A)       Stock
Reserve. At all times when any Notes are outstanding, the Company will reserve, out of its authorized unreserved and not outstanding
shares of Common Stock, a number of shares of Common Stock sufficient to permit the conversion of all then-outstanding Notes, assuming
the Conversion Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section
5.07.


(B)       Status
of Conversion Shares; Listing. Each Conversion Share delivered upon conversion of any Note will be a newly issued or treasury
share and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse
claim (except to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person
to whom such Conversion Share will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any
inter-dealer quotation system, then the Company will cause each Conversion Share, when delivered upon conversion of any Note, to
be admitted for listing on such exchange or quotation on such system.


    	 	- 34 - 	 



     


    

Section
5.05.  Adjustments to the Conversion Rate.


(A)       Events
Requiring an Adjustment to the Conversion Rate. The Conversion Rate will be adjusted from time to time as follows:


(i)       Stock
Dividends, Splits and Combinations. If the Company issues solely shares of Common Stock as a dividend or distribution on all
or substantially all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common Stock
(in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 5.08 will apply),
then the Conversion Rate will be adjusted based on the following formula:





 


where:

	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution, or immediately before the Open of Business on the effective date of such stock split or stock combination, as applicable;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date or the Open of Business on such effective date, as applicable;
	 	 	 	 
	 	OS0	=	the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date or effective date, as applicable, without giving effect to such dividend, distribution, stock split or stock combination; and
	 	 	 	 
	 	OS1	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, stock split or stock combination.





 


For the avoidance of doubt, each
adjustment to the Conversion Rate made pursuant to this Section 5.05(A)(i) will become effective as of the time set forth
in the preceding definition of CR1. If any dividend, distribution, stock split or stock combination of the type
described in this Section 5.05(A)(i) is declared or announced, but not so paid or made, then the Conversion Rate will be
readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such
stock split or stock combination, to the Conversion Rate that would then be in effect had such dividend, distribution, stock split
or stock combination not been declared or announced.


 


    	 	- 35 - 	 



     


    

(ii)       Rights,
Options and Warrants. If the Company distributes, to all or substantially all holders of Common Stock, rights, options or warrants
(other than rights issued or otherwise distributed pursuant to a stockholder rights plan, as to which the provisions set forth
in Sections 5.05(A)(iii)(1) and 5.05(F) will apply) entitling such holders, for a period of not more than sixty (60)
calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock at a price per share
that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days
ending on, and including, the Trading Day immediately before the date such distribution is announced, then the Conversion Rate
will be increased based on the following formula:





 


where:

	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	OS	=	the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	X	=	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
	 	 	 	 
	 	Y	=	a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced.




 


To the extent that shares of Common
Stock are not delivered after the expiration of such rights, options or warrants (including as a result of such rights, options
or warrants not being exercised), the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had
the increase to the Conversion Rate for such distribution been made on the basis of delivery of only the number of shares of Common
Stock actually delivered upon exercise of such rights, option or warrants. To the extent such rights, options or warrants are not
so distributed, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the Ex-Dividend
Date for the distribution of such rights, options or warrants not occurred.


 


For the avoidance of doubt, each
adjustment to the Conversion Rate made pursuant to this Section 5.05(A)(ii) will become effective as of the time set forth
in the preceding definition of CR1. For purposes of this Section 5.05(A)(ii), in determining whether any
rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading
Days ending on, and including, the Trading Day immediately before the date the distribution of such rights, options or warrants
is announced, and in determining the aggregate price payable to exercise such rights, options or warrants, there will be taken
into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof,
with the value of such consideration, if not cash, to be determined by the Board of Directors.


 


    	 	- 36 - 	 



     


    

(iii)       Spin-Offs
and Other Distributed Property.


(1)       Distributions
Other than Spin-Offs. If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets
or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all
or substantially all holders of the Common Stock, excluding:


(v)       dividends,
distributions, rights, options or warrants for which an adjustment to the Conversion Rate is required (or would be required without
regard to Section 5.05(C)) pursuant to Section 5.05(A)(i) or 5.05(A)(ii);


 


(w)       dividends
or distributions paid exclusively in cash for which an adjustment to the Conversion Rate is required (or would be required without
regard to Section 5.05(C)) pursuant to Section 5.05(A)(iv);


 


(x)       rights
issued or otherwise distributed pursuant to a stockholder rights plan, except to the extent provided in Section 5.05(F);


 


(y)       Spin-Offs
for which an adjustment to the Conversion Rate is required (or would be required without regard to Section 5.05(C)) pursuant
to Section 5.05(A)(iii)(2); and


 


(z)       a
distribution solely pursuant to a Common Stock Change Event, as to which Section 5.08 will apply,


 


then the Conversion Rate will be
increased based on the following formula:





 


where:

	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such distribution;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;



 


    	 	- 37 - 	 



     


    

	 	 	 	 
	 	SP	=	the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before such Ex-Dividend Date; and
	 	 	 	 
	 	FMV	=	the fair market value (as determined by the Board of Directors), as of such Ex-Dividend Date, of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed per share of Common Stock pursuant to such distribution;




 


provided, however, that
if FMV is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each Holder
will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such distribution, at the same
time and on the same terms as holders of Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness,
assets, property, rights, options or warrants that such Holder would have received if such Holder had owned, on such record date,
a number of shares of Common Stock equal to the Conversion Rate in effect on such Ex-Dividend Date.


 


To the extent such distribution is
not so paid or made, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment
been made on the basis of only the distribution, if any, actually made or paid.


 


For the avoidance of doubt, each adjustment
to the Conversion Rate made pursuant to this Section 5.05(A)(iii)(1) will become effective as of the time set forth in the
preceding definition of CR1.


 


(2)       Spin-Offs.
If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity interests, of or relating
to an Affiliate, a Subsidiary or other business unit of the Company to all or substantially all holders of the Common Stock (other
than solely pursuant to a Common Stock Change Event, as to which Section 5.08 will apply), and such Capital Stock or equity
interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities
exchange (a “Spin-Off”), then the Conversion Rate will be increased based on the following formula:





 


where:

	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such Spin-Off;



    	 	- 38 - 	 



     


    

 


	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
	 	 	 	 
	 	FMV	=	the product of (x) the average of the Last Reported Sale Prices per share or unit of the Capital Stock or equity interests distributed in such Spin-Off over the ten (10) consecutive Trading Day period (the “Spin-Off Valuation Period”) beginning on, and including, such Ex-Dividend Date (such average to be determined as if references to Common Stock in the definitions of Last Reported Sale Price, Trading Day and Market Disruption Event were instead references to such Capital Stock or equity interests); and (y) the number of shares or units of such Capital Stock or equity interests distributed per share of Common Stock in such Spin-Off; and
	 	 	 	 
	 	SP	=	the average of the Last Reported Sale Prices per share of Common Stock for each Trading Day in the Spin-Off Valuation Period.




 


The adjustment to the Conversion Rate
pursuant to this Section 5.05(A)(iii)(2) will be calculated as of the Close of Business on the last Trading Day of the Spin-Off
Valuation Period but will be given effect immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off, with
retroactive effect. If a Note is converted and the Conversion Date occurs during the Spin-Off Valuation Period, then, notwithstanding
anything to the contrary in this Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion
until the second (2nd) Business Day after the last day of the Spin-Off Valuation Period.


 


To the extent any dividend or distribution
of the type set forth in this Section 5.05(A)(iii)(2) is declared but not made or paid, the Conversion Rate will be readjusted
to the Conversion Rate that would then be in effect had the adjustment been made on the basis of only the dividend or distribution,
if any, actually made or paid.


 


(iv)       Cash
Dividends or Distributions. If any cash dividend or distribution is made to all or substantially all holders of Common Stock,
then the Conversion Rate will be increased based on the following formula:





 


where:

	 	CR0	=	the Conversion Rate in effect immediately before the Open of Business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date;



 


    	 	- 39 - 	 



     


    

	 	 	 	 
	 	SP	=	the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Ex-Dividend Date; and
	 	 	 	 
	 	D	=	the cash amount distributed per share of Common Stock in such dividend or distribution;




 


provided, however,
that if D is equal to or greater than SP, then, in lieu of the foregoing adjustment to the Conversion Rate, each
Holder will receive, for each $1,000 principal amount of Notes held by such Holder on the record date for such dividend or distribution,
at the same time and on the same terms as holders of Common Stock, the amount of cash that such Holder would have received if such
Holder had owned, on such record date, a number of shares of Common Stock equal to the Conversion Rate in effect on such Ex-Dividend
Date.


 


To the extent such dividend or distribution
is declared but not made or paid, the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had
the adjustment been made on the basis of only the dividend or distribution, if any, actually made or paid.


 


For the avoidance of doubt, each
adjustment to the Conversion Rate made pursuant to this Section 5.05(A)(iv) will become effective as of the time set forth
in the preceding definition of CR1.


 


(v)       Tender
Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange
offer for shares of Common Stock (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under the
Exchange Act), and the value (determined as of the Expiration Time by the Board of Directors) of the cash and other consideration
paid per share of Common Stock in such tender or exchange offer exceeds the average of the Last Reported Sale Prices per share
of Common Stock over the Tender/Exchange Offer Valuation Period for such tender or exchange offer, then the Conversion Rate will
be increased based on the following formula:





 


where:

	 	CR0	=	the Conversion Rate in effect immediately before the time (the “Expiration Time”) such tender or exchange offer expires;
	 	 	 	 
	 	CR1	=	the Conversion Rate in effect immediately after the Expiration Time;
	 	 	 	 
	 	AC	=	the aggregate value (determined as of the Expiration Time by the Board of Directors) of all cash and other consideration paid for shares of Common Stock purchased or exchanged in such tender or exchange offer;



 


    	 	- 40 - 	 



     


    

	 	 	 	 
	 	OS0	=	the number of shares of Common Stock outstanding immediately before the Expiration Time (including 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 Expiration Time (excluding all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
	 	 	 	 
	 	SP	=	the average of the Last Reported Sale Prices per share of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation Period”) beginning on, and including, the Trading Day immediately after the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended).




 


The adjustment to the Conversion
Rate pursuant to this Section 5.05(A)(v) will be calculated as of the Close of Business on the last Trading Day of the Tender/Exchange
Offer Valuation Period but will be given effect immediately after the Expiration Time, with retroactive effect. If a Note is converted
and the Conversion Date occurs on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding
anything to the contrary in this Indenture or the Notes, the Company will delay the settlement of such conversion until the second
(2nd) Business Day after the last day of the Tender/Exchange Offer Valuation Period.


 


To the extent such tender or exchange
offer is announced but not consummated (including as a result of the Company being precluded from consummating such tender or exchange
offer under applicable law), or any purchases or exchanges of shares of Common Stock in such tender or exchange offer are rescinded,
the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the adjustment been made on the
basis of only the purchases or exchanges of shares of Common Stock, if any, actually made, and not rescinded, in such tender or
exchange offer.


 


(B)       No
Adjustments in Certain Cases.


(i)       Where
Holders Participate in the Transaction or Event Without Conversion. Notwithstanding anything to the contrary in Section
5.05(A), the Company will not be obligated to adjust the Conversion Rate on account of a transaction or other event otherwise
requiring an adjustment pursuant to Section 5.05(A) (other than a stock split or combination of the type set forth in Section
5.05(A)(i) or a tender or exchange offer of the type set forth in Section 5.05(A)(v)) if each Holder participates, at
the same time and on the same terms as holders of Common Stock, and solely by virtue of being a Holder of Notes, in such transaction
or event without having to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal
to the product of (i) the Conversion Rate in effect on the related record date; and (ii) the aggregate principal amount (expressed
in thousands) of Notes held by such Holder on such date.


    	 	- 41 - 	 



     


    

(ii)       Certain
Events. The Company will not be required to adjust the Conversion Rate except as provided in Section 5.05 or Section
5.07. Without limiting the foregoing, the Company will not be obligated to adjust the Conversion Rate on account of:


(1)       except
as otherwise provided in Section 5.05, the sale of shares of Common Stock for a purchase price that is less than the market
price per share of Common Stock or less than the Conversion Price;


(2)       stock
repurchases, including structured or derivative transactions, or pursuant to a stock repurchase program approved by the Board of
Directors or otherwise, in each case that is not a tender offer or exchange offer referred to in Section 5.05(A)(v);


(3)       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
such plan;


(4)       the
issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future
employee, director or consultant benefit plan, program or agreement of, or assumed by, the Company or any of its Subsidiaries;


(5)       the
issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security of the Company
outstanding as of the Issue Date;


(6)       solely
a change in the par value of the Common Stock; or


(7)       accrued
and unpaid interest on the Notes.


(C)       Adjustment
Deferral. If an adjustment to the Conversion Rate otherwise required by this Article 5 would result in a change of less
than one percent (1%) to the Conversion Rate, then, notwithstanding anything to the contrary in this Article 5, the Company
may, at its election, defer such adjustment, except that all such deferred adjustments must be given effect immediately upon the
earliest of the following: (i) when all such deferred adjustments would result in a change of at least one percent (1%) to the
Conversion Rate; (ii) the Conversion Date of any Note; (iii) the date a Fundamental Change or Make-Whole Fundamental Change occurs;
and (iv) June 1, 2024.


(D)       Adjustments
Not Yet Effective. Notwithstanding anything to the contrary in this Indenture or the Notes, if:


(i)       a
Note is to be converted;


(ii)       the
record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant to Section
5.05(A) has occurred on or before the Conversion Date for such conversion, but an adjustment to the Conversion Rate for such
event has not yet become effective as of such Conversion Date;


    	 	- 42 - 	 



     


    

(iii)       the
Conversion Consideration due upon such conversion includes any whole shares of Common Stock; and


(iv)       such
shares are not entitled to participate in such event (because they were not held on the related record date or otherwise),


then, solely for purposes of such conversion,
the Company will, without duplication, give effect to such adjustment on such Conversion Date. In such case, if the date on which
the Company is otherwise required to deliver the consideration due upon such conversion is before the first date on which the amount
of such adjustment can be determined, then the Company will delay the settlement of such conversion until the second (2nd) Business
Day after such first date.


(E)       Conversion
Rate Adjustments where Converting Holders Participate in the Relevant Transaction or Event. Notwithstanding anything to the
contrary in this Indenture or the Notes, if:


(i)       a
Conversion Rate adjustment for any dividend or distribution becomes effective on any Ex-Dividend Date pursuant to Section 5.05(A);


(ii)       a
Note is to be converted;


(iii)       the
Conversion Date for such conversion occurs on or after such Ex-Dividend Date and on or before the related record date;


(iv)       the
Conversion Consideration due upon such conversion includes any whole shares of Common Stock based on a Conversion Rate that is
adjusted for such dividend or distribution; and


(v)       such
shares would be entitled to participate in such dividend or distribution (including pursuant to Section 5.02(C)),


then (x) such Conversion Rate adjustment
will not be given effect for such conversion; (y) the shares of Common Stock issuable upon such conversion based on such unadjusted
Conversion Rate will not be entitled to participate in such dividend or distribution; and (z) there will be added, to the Conversion
Consideration otherwise due upon such conversion, the same kind and amount of consideration that would have been delivered in such
dividend or distribution with respect to such shares of Common Stock had such shares been entitled to participate in such dividend
or distribution.


(F)       Stockholder
Rights Plans. If any shares of Common Stock are to be issued upon conversion of any Note and, at the time of such conversion,
the Company has in effect any stockholder rights plan, then the Holder of such Note will be entitled to receive, in addition to,
and concurrently with the delivery of, the Conversion Consideration otherwise payable under this Indenture upon such conversion,
the rights set forth in such stockholder rights plan, unless such rights have separated from the Common Stock at such time, in
which case, and only in such case, the Conversion Rate will be adjusted pursuant to Section 5.05(A)(iii)(1) on account of
such separation as if, at the time of such separation, the Company had made a distribution of the type referred to in such Section
to all holders of the Common Stock, subject to readjustment in accordance with such Section if such rights expire, terminate or
are redeemed.


    	 	- 43 - 	 



     


    

(G)       Limitation
on Effecting Transactions Resulting in Certain Adjustments. The Company will not engage in or be a party to any transaction
or event that would require the Conversion Rate to be adjusted pursuant to Section 5.05(A) or Section 5.07 to an
amount that would result in the Conversion Price per share of Common Stock being less than the par value per share of Common Stock.


(H)       Equitable
Adjustments to Prices. Whenever any provision of this Indenture requires the Company to calculate the average of the Last Reported
Sale Prices, or any function thereof, over a period of multiple days (including to calculate the Stock Price or an adjustment to
the Conversion Rate), the Company will make appropriate adjustments, if any, to such calculations to account for any adjustment
to the Conversion Rate pursuant to Section 5.05(A)(i) that becomes effective, or any event requiring such an adjustment
to the Conversion Rate where the Ex-Dividend Date or effective date, as applicable, of such event occurs, at any time during such
period.


(I)       Calculation
of Number of Outstanding Shares of Common Stock. For purposes of Section 5.05(A), the number of shares of Common Stock
outstanding at any time will (i) include shares issuable in respect of scrip certificates issued in lieu of fractions of shares
of Common Stock; and (ii) exclude shares of Common Stock held in the Company’s treasury (unless the Company pays any dividend
or makes any distribution on shares of Common Stock held in its treasury).


(J)       Calculations.
All calculations with respect to the Conversion Rate and adjustments thereto will be made to the nearest 1/10,000th of a share
of Common Stock (with 5/100,000ths rounded upward).


(K)       Notice
of Conversion Rate Adjustments. Upon the effectiveness of any adjustment to the Conversion Rate pursuant to Section 5.05(A),
the Company will promptly send notice to the Holders, the Trustee and the Conversion Agent containing (i) a brief description of
the transaction or other event on account of which such adjustment was made; (ii) the Conversion Rate in effect immediately after
such adjustment; and (iii) the effective time of such adjustment.


Section
5.06.  Voluntary Adjustments.


(A)       Generally.
To the extent permitted by law and applicable stock exchange rules, the Company, from time to time, may (but is not required to)
increase the Conversion Rate by any amount if (i) the Board of Directors determines that such increase is either (x) in the best
interest of the Company; or (y) advisable to avoid or diminish any income tax imposed on holders of Common Stock or rights to purchase
Common Stock as a result of any dividend or distribution of shares (or rights to acquire shares) of Common Stock or any similar
event; (ii) such increase is in effect for a period of at least twenty (20) Business Days; and (iii) such increase is irrevocable
during such period.


    	 	- 44 - 	 



     


    

(B)       Notice
of Voluntary Increases. If the Board of Directors determines to increase the Conversion Rate pursuant to Section 5.06(A),
then, no later than the first Business Day of the related twenty (20) Business Day period referred to in Section 5.06(A),
the Company will send notice to each Holder, the Trustee and the Conversion Agent of such increase, the amount thereof and the
period during which such increase will be in effect.


Section
5.07.  Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change.


(A)       Generally.
If a Make-Whole Fundamental Change occurs and the Conversion Date for the conversion of a Note occurs during the related Make-Whole
Fundamental Change Conversion Period, then, subject to this Section 5.07, the Conversion Rate applicable to such conversion
will be increased by a number of shares (the “Additional Shares”) set forth in the table below corresponding
(after interpolation as provided in, and subject to, the provisions below) to the effective date and the Stock Price of such Make-Whole
Fundamental Change:


	 	
        Stock Price

	
        Effective
        Date
	
        $32.74
	
        $39.00
	
        $44.20
	
        $50.00
	
        $60.00
	
        $80.00
	
        $100.00
	
        $125.00
	
        $150.00
	
        $200.00

	November 22, 2019	7.9187	6.0161	4.6110	3.5251	2.3501	1.2339	0.7521	0.4607	0.3038	0.1511
	December 1, 2020	7.9187	5.7674	4.3191	3.2211	2.0651	1.0251	0.6081	0.3679	0.2424	0.1211
	December 1, 2021	7.9187	5.4238	3.9254	2.8171	1.7018	0.7801	0.4481	0.2711	0.1798	0.0916
	December 1, 2022	7.9187	4.9392	3.3756	2.2671	1.2334	0.4989	0.2811	0.1751	0.1191	0.0621
	December 1, 2023	7.9187	4.2007	2.5295	1.4551	0.6184	0.2076	0.1271	0.0863	0.0598	0.0326
	December 1, 2024	7.9187	3.0161	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000	0.0000


 


If such effective
date or Stock Price is not set forth in the table above, then:


(i)       if
such Stock Price is between two Stock Prices in the table above or the effective date is between two dates in the table above,
then the number of Additional Shares will be determined by a straight-line interpolation between the numbers of Additional Shares
set forth for the higher and lower Stock Prices in the table above or the earlier and later dates in the table above, based on
a 365- or 366-day year, as applicable; and


(ii)       if
the Stock Price is greater than $200.00 (subject to adjustment in the same manner as the Stock Prices set forth in the column headings
of the table above are adjusted pursuant to Section 5.07(B)), or less than $32.74 (subject to adjustment in the same manner),
per share, then no Additional Shares will be added to the Conversion Rate.


Notwithstanding anything
to the contrary in this Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 30.5436
shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at
the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 5.05(A).


 


(B)       Adjustment
of Stock Prices and Additional Shares. The Stock Prices in the first row (i.e., the column headers) of the table set
forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events for which,
the Conversion Price is adjusted as a result of the operation of Section 5.05(A). The numbers of Additional Shares in the
table set forth in Section 5.07(A) will be adjusted in the same manner as, and at the same time and for the same events
for which, the Conversion Rate is adjusted pursuant to Section 5.05(A).


    	 	- 45 - 	 



     


    

(C)       Notice
of the Occurrence of a Make-Whole Fundamental Change. If a Make-Whole Fundamental Change occurs, then, promptly and in no event
later than the Business Day immediately after the effective date of such Make-Whole Fundamental Change, the Company will notify
the Holders of the occurrence of such Make-Whole Fundamental Change and of such effective date, briefly stating the circumstances
under which the Conversion Rate will be increased pursuant to this Section 5.07 in connection with such Make-Whole Fundamental
Change.


 


Section
5.08.  Effect of Common Stock Change Event.


(A)       Generally.
If there occurs any:


(i)       recapitalization,
reclassification or change of the Common Stock (other than (x) changes solely resulting from a subdivision or combination of the
Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value or (z) stock splits
and stock combinations that do not involve the issuance of any other series or class of securities);


(ii)       consolidation,
merger, combination or binding or statutory share exchange involving the Company;


(iii)       sale,
lease or other transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any
Person; or


(iv)       similar
event,


and, as a result of which, the Common Stock
is converted into, or is exchanged for, or represents solely the right to receive, other securities, cash or other property or
assets, or any combination of the foregoing (such an event, a “Common Stock Change Event,” and such other securities,
cash, property or assets, the “Reference Property,” and the amount and kind of Reference Property that a holder
of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect
to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property
Unit”), then, notwithstanding anything to the contrary in this Indenture or the Notes,


 


(1)       from
and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note
will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article 5 (or
in any related definitions) were instead a reference to the same number of Reference Property Units; and (II) for purposes of the
definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock”
and “common equity” will be deemed to mean the common equity (including depositary receipts representing common equity),
if any, forming part of such Reference Property; and


 


(2)       for
these purposes, the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class
of securities will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith
by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof).


 


    	 	- 46 - 	 



     


    

If the Reference Property
consists of more than a single type of consideration to be determined based in part upon any form of stockholder election, then
the composition of the Reference Property Unit will be deemed to be the weighted average of the types and amounts of consideration
actually received, per share of Common Stock, by the holders of Common Stock. The Company will notify Holders of such weighted
average as soon as practicable after such determination is made.


 


At or before the effective
time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such
Common Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture
pursuant to Section 8.01(F), which supplemental indenture will (x) provide for subsequent conversions of Notes in the manner
set forth in this Section 5.08; (y) provide for subsequent adjustments to the Conversion Rate pursuant to Section 5.05(A)
in a manner consistent with this Section 5.08; and (z) contain such other provisions as the Company reasonably determines
are appropriate to preserve the economic interests of the Holders and to give effect to the provisions of this Section 5.08(A).
If the Reference Property includes shares of stock or other securities or assets of a Person other than the Successor Person, then
such other Person will also execute such supplemental indenture and such supplemental indenture will contain such additional provisions
as the Company reasonably determines are appropriate to preserve the economic interests of the Holders.


 


(B)       Notice
of Common Stock Change Events. The Company will provide notice of each Common Stock Change Event to Holders no later than the
effective date of such Common Stock Change Event.


(C)       Compliance
Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section
5.08.


Section
5.09.  Trustee Adjustment Disclaimer.


The Trustee has
no duty to determine when an adjustment under this Article 5 should be made, how it should be made or what it should be.
The Trustee has no duty to determine whether a supplemental indenture under Section 5.08 need be entered into or whether
any provisions of any supplemental indenture are correct. The Trustee will not be accountable for and makes no representation as
to the validity or value of any securities or assets issued upon conversion of the Notes. The Trustee will not be responsible for
the Company’s failure to comply with this Article 5. Each Conversion Agent (other than the Company or an Affiliate
of the Company) will have the same protection under this Article 5 as the Trustee.


Article 6.  Successors


Section
6.01.  When the Company May Merge, Etc.


(A)       Generally.
The Company will not consolidate with or merge with or into, or (directly, or indirectly through one or more of its Subsidiaries)
sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, to another Person (a “Business Combination Event”), unless:


    	 	- 47 - 	 



     


    

(i)       the
resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “Successor
Corporation”) duly organized and existing under the laws of the United States of America, any State thereof or the District
of Columbia that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business
Combination Event, a supplemental indenture pursuant to Section 8.01(E)) all of the Company’s obligations under this
Indenture and the Notes; and


(ii)       immediately
after giving effect to such Business Combination Event, no Default or Event of Default will have occurred and be continuing.


(B)       Delivery
of Officer’s Certificate and Opinion of Counsel to the Trustee. Before the effective time of any Business Combination
Event, the Company will deliver to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that (i) such
Business Combination Event (and, if applicable, the related supplemental indenture) comply with Section 6.01(A); and (ii)
all conditions precedent to such Business Combination Event provided in this Indenture have been satisfied.


Section
6.02.  Successor Corporation Substituted.


At the effective time of
any Business Combination Event that complies with Section 6.01, the Successor Corporation (if not the Company) will succeed
to, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such Successor
Corporation had been named as the Company in this Indenture and the Notes, and, except in the case of a lease, the predecessor
Company will be discharged from its obligations under this Indenture and the Notes.


 


Article 7.  Defaults
and Remedies


Section
7.01.  Events of Default.


(A)       Definition
of Events of Default. “Event of Default” means the occurrence of any of the following:


(i)       a
default in the payment when due (whether at maturity, upon Repurchase Upon Fundamental Change or otherwise) of the principal of,
or the Fundamental Change Repurchase Price for, any Note;


(ii)       a
default for thirty (30) days in the payment when due of interest on any Note;


(iii)       the
Company’s failure to deliver, when required by this Indenture, a Fundamental Change Notice, or a notice pursuant to Section
5.07(C);


    	 	- 48 - 	 



     


    

(iv)       a
default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the conversion
right with respect thereto, and such failure continues for a period of three (3) Business Days;


(v)       a
default in the Company’s obligations under Article 6;


(vi)       a
default in any of the Company’s obligations or agreements under this Indenture or the Notes (other than a default set forth
in clause (i), (ii), (iii), (iv) or (v) of this Section 7.01(A)) where such default is
not cured or waived within sixty (60) days after notice to the Company by the Trustee, or to the Company and the Trustee by Holders
of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding, which notice must specify such
default, demand that it be remedied and state that such notice is a “Notice of Default”;


(vii)       a
default by the Company or any of its Significant Subsidiaries with respect to any one or more mortgages, agreements or other instruments
under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed of at least twenty
five million dollars ($25,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of its Subsidiaries,
whether such indebtedness exists as of the Issue Date or is thereafter created, where such default:


(1)       constitutes
a failure to pay the principal of, or premium or interest on, any of such indebtedness when due and payable at its stated maturity,
upon required repurchase, upon declaration of acceleration or otherwise, in each case after the expiration of any applicable grace
period; or


(2)       results
in such indebtedness becoming or being declared due and payable before its stated maturity in each case where such default is not
cured or waived within thirty (30) days after notice to the Company by the Trustee or to the Company and the Trustee by Holders
of at least twenty five percent (25%) of the aggregate principal amount of Notes then outstanding;


(viii)       one
or more final judgments being rendered against the Company or any of its Subsidiaries for the payment of at least twenty five million
dollars ($25,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered by insurance), where
such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to appeal the same has expired,
if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished;


(ix)       the
Company or any of its Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law, either:


(1)       commences
a voluntary case or proceeding;


(2)       consents
to the entry of an order for relief against it in an involuntary case or proceeding;


(3)       consents
to the appointment of a custodian of it or for any substantial part of its property;


    	 	- 49 - 	 



     


    

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


(5)       takes
any comparable action under any foreign Bankruptcy Law; or


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


(1)       is
for relief against Company or any of its Significant Subsidiaries in an involuntary case or proceeding;


(2)       appoints
a custodian of the Company or any of its Significant Subsidiaries, or for any substantial part of the property of the Company or
any of its Significant Subsidiaries;


(3)       orders
the winding up or liquidation of the Company or any of its Significant Subsidiaries; or


(4)       grants
any similar relief under any foreign Bankruptcy Law,


and, in each case under this Section
7.01(A)(x), such order or decree remains unstayed and in effect for at least sixty (60) days.


 


(B)       Cause
Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless of the cause
thereof or whether voluntary or involuntary or 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.


Section
7.02.  Acceleration.


(A)       Automatic
Acceleration in Certain Circumstances. If an Event of Default set forth in Section 7.01(A)(ix) or 7.01(A)(x)
occurs with respect to the Company (and not solely with respect to a Significant Subsidiary of the Company), then the principal
amount of, and all accrued and unpaid interest on, all of the Notes then outstanding will immediately become due and payable without
any further action or notice by any Person.


(B)       Optional
Acceleration. Subject to Section 7.03, if an Event of Default (other than an Event of Default set forth in Section
7.01(A)(ix) or 7.01(A)(x) with respect to the Company and not solely with respect to a Significant Subsidiary of the
Company) occurs and is continuing, then the Trustee, by notice to the Company, or Holders of at least twenty five percent (25%)
of the aggregate principal amount of Notes then outstanding, by notice to the Company and the Trustee, may declare the principal
amount of, and all accrued and unpaid interest on, all of the Notes then outstanding to become due and payable immediately.


(C)       Rescission
of Acceleration. Notwithstanding anything to the contrary in this Indenture or the Notes, the Holders of a majority in aggregate
principal amount of the Notes then outstanding, by notice to the Company and the Trustee, may, on behalf of all Holders, rescind
any acceleration of the Notes and its consequences if (i) such rescission would not conflict with any judgment or decree of a court
of competent jurisdiction; and (ii) all existing Events of Default (except the non-payment of principal of, or interest on, the
Notes that has become due solely because of such acceleration) have been cured or waived. No such rescission will affect any subsequent
Default or impair any right consequent thereto.


    	 	- 50 - 	 



     


    

Section
7.03.  Sole Remedy for a Failure to Report.


(A)       Generally.
Notwithstanding anything to the contrary in this Indenture or the Notes, the Company may elect that the sole remedy for any Event
of Default (a “Reporting Event of Default”) pursuant to Section 7.01(A)(vi) arising from the Company’s
failure to comply with Section 3.02 will, for each of the first two hundred and seventy (270) calendar days on which a Reporting
Event of Default has occurred and is continuing (which, for the avoidance of doubt, will not commence until the notice set forth
in Section 7.01(A)(vi) has been given, and the related sixty (60) day period set forth in Section 7.01(A)(vi) has
passed), consist exclusively of the accrual of Special Interest on the Notes. If the Company has made such an election, then (i)
the Notes will be subject to acceleration pursuant to Section 7.02 on account of the relevant Reporting Event of Default
from, and including, the two hundred and seventy first (271st) calendar day on which a Reporting Event of Default has occurred
and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest will
cease to accrue on any Notes from, and including, such two hundred and seventy first (271st) calendar day (it being understood
that interest on any defaulted Special Interest will nonetheless accrue pursuant to Section 2.05(B)).


(B)       Amount
and Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section 7.03(A) will be payable
on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum equal to one quarter
of one percent (0.25%) of the principal amount thereof for the first one hundred and thirty five (135) days on which Special Interest
accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof; provided,
however, that in no event will Special Interest, together with any Additional Interest, accrue on any day on a Note at a
combined rate per annum that exceeds one half of one percent (0.50%), regardless of the number of events or circumstances giving
rise to requirements to pay such Additional Interest or Special Interest. For the avoidance of doubt, any Special Interest that
accrues on a Note will be in addition to the Stated Interest that accrues on such Note and subject to the proviso of the immediately
preceding sentence, in addition to any Additional Interest that accrues on such Note.


(C)       Notice
of Election. To make the election set forth in Section 7.03(A), the Company must send to the Holders, the Trustee and
the Paying Agent, before the date on which each Reporting Event of Default first occurs, a notice that (i) briefly describes the
report(s) that the Company failed to file with the SEC; (ii) states that the Company is electing that the sole remedy for such
Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which and
rate at which Special Interest will accrue and the circumstances under which the Notes will be subject to acceleration on account
of such Reporting Event of Default.


    	 	- 51 - 	 



     


    

(D)       Notice
to Trustee and Paying Agent; Trustee’s Disclaimer. If Special Interest accrues on any Note, then, no later than five
(5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate
to the Trustee and the Paying Agent stating (i) that the Company is obligated to pay Special Interest on such Note on such date
of payment; and (ii) the amount of such Special Interest that is payable on such date of payment. The Trustee will have no duty
to determine whether any Special Interest is payable or the amount thereof.


(E)       No
Effect on Other Events of Default. No election pursuant to this Section 7.03 with respect to a Reporting Event of Default
will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting
Event of Default.


Section
7.04.  Other Remedies.


(A)       Trustee
May Pursue All Remedies. If an Event of Default occurs and is continuing, then the Trustee may pursue any available remedy
to collect the payment of any amounts due with respect to the Notes or to enforce the performance of any provision of this Indenture
or the Notes.


(B)       Procedural
Matters. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them
in such proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy following an Event of Default
will not impair the right or remedy or constitute a waiver of, or acquiescence in, such Event of Default. All remedies will be
cumulative to the extent permitted by law.


Section
7.05.  Waiver of Past Defaults.


An Event of Default pursuant
to clause (i), (ii), (iv) or (vi) of Section 7.01(A) (that, in the case of clause (vi)
only, results from a Default under any covenant that cannot be amended without the consent of each affected Holder), and a Default
that could lead to such an Event of Default, can be waived only with the consent of each affected Holder. Each other Default or
Event of Default may be waived, on behalf of all Holders, by the Holders of a majority in aggregate principal amount of the Notes
then outstanding. If an Event of Default is so waived, then it will cease to exist. If a Default is so waived, then it will be
deemed to be cured and any Event of Default arising therefrom will be deemed not to occur. However, no such waiver will extend
to any subsequent or other Default or Event of Default or impair any right arising therefrom.


 


Section
7.06.  Control by Majority.


Holders of a majority in
aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law, this Indenture or the Notes, or that, subject to Section 10.01, the Trustee
determines may be unduly prejudicial to the rights of other Holders or may involve the Trustee in liability, unless the Trustee
is offered security and indemnity satisfactory to the Trustee against any loss, liability or expense to the Trustee that may result
from the Trustee’s following such direction.


 


    	 	- 52 - 	 



     


    

Section
7.07.  Limitation on Suits.


No Holder may pursue
any remedy with respect to this Indenture or the Notes (except to enforce (x) its rights to receive the principal of, or the Fundamental
Change Repurchase Price for, or interest on, any Notes; or (y) the Company’s obligations to convert any Notes pursuant to
Article 5), unless:


(A)       such
Holder has previously delivered to the Trustee notice that an Event of Default is continuing;


(B)       Holders
of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding deliver a request to the Trustee
to pursue such remedy;


(C)       such
Holder or Holders offer and, if requested, provide to the Trustee security and indemnity satisfactory to the Trustee against any
loss, liability or expense to the Trustee that may result from the Trustee’s following such request;


(D)       the
Trustee does not comply with such request within sixty (60) calendar days after its receipt of such request and such offer of security
or indemnity; and


(E)       during
such sixty (60) calendar day period, Holders of a majority in aggregate principal amount of the Notes then outstanding do not deliver
to the Trustee a direction that is inconsistent with such request.


A Holder of a Note may
not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder. The
Trustee will have no duty to determine whether any Holder’s use of this Indenture complies with the preceding sentence.


 


Section
7.08.  Absolute Right of Holders to Institute Suit for the Enforcement of the Right to Receive Payment and Conversion Consideration.


Notwithstanding anything
to the contrary in this Indenture or the Notes (but without limiting Section 8.01), the right of each Holder of a Note to
bring suit for the enforcement of any payment or delivery, as applicable, of the principal of, or the Fundamental Change Repurchase
Price for, or any interest on, or the Conversion Consideration due pursuant to Article 5 upon conversion of, such Note on
or after the respective due dates therefor provided in this Indenture and the Notes, will not be impaired or affected without the
consent of such Holder.


 


Section
7.09.  Collection Suit by Trustee.


The Trustee will have the
right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iv) of
Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the total
unpaid or undelivered principal of, or Fundamental Change Repurchase Price for, or interest on, or Conversion Consideration due
pursuant to Article 5 upon conversion of, the Notes, as applicable, and, to the extent lawful, any Default Interest on any
Defaulted Amounts, and such further amounts sufficient to cover the costs and expenses of collection, including compensation provided
for in Section 10.06.


 


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Section
7.10.  Trustee May File Proofs of Claim.


The Trustee has the right
to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes) or
its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any such
claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee consents
to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable
compensation, expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to
the Trustee pursuant to Section 10.06. To the extent that the payment of any such compensation, expenses, disbursements,
advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured
by a lien on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders
may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise).
Nothing in this Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section
7.11.  Priorities.


The Trustee will
pay or deliver in the following order any money or other property that it collects pursuant to this Article 7:


First:to
the Trustee and its agents and attorneys for amounts due under Section 10.06, including payment of all fees, compensation,
expenses and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;


 


Second:to
Holders for unpaid amounts or other property due on the Notes, including the principal of, or the Fundamental Change Repurchase
Price for, or any interest on, or any Conversion Consideration due upon conversion of, the Notes, ratably, and without preference
or priority of any kind, according to such amounts or other property due and payable on all of the Notes; and


 


Third:to
the Company or such other Person as a court of competent jurisdiction directs.


 


The Trustee may fix a record
date and payment date for any payment or delivery to the Holders pursuant to this Section 7.11, in which case the Trustee
will instruct the Company to, and the Company will, deliver, at least fifteen (15) calendar days before such record date, to each
Holder and the Trustee a notice stating such record date, such payment date and the amount of such payment or nature of such delivery,
as applicable.


 


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Section
7.12.  Undertaking for Costs.


In any suit for the enforcement
of any right or remedy under this Indenture or the Notes or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court, in its discretion, may (A) require the filing by any litigant party in such suit of an undertaking to pay
the costs of such suit, and (B) assess reasonable costs (including reasonable attorneys’ fees and expenses) against any litigant
party in such suit, having due regard to the merits and good faith of the claims or defenses made by such litigant party; provided,
however, that this Section 7.12 does not apply to any suit by the Trustee, any suit by a Holder pursuant to Section
7.08 or any suit by one or more Holders of more than ten percent (10%) in aggregate principal amount of the Notes then outstanding.


 


Article 8.  Amendments,
Supplements and Waivers


Section
8.01.  Without the Consent of Holders.


Notwithstanding
anything to the contrary in Section 8.02, the Company and the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder to:


(A)       cure
any ambiguity or correct any omission, defect or inconsistency in this Indenture or the Notes;


(B)       add
guarantees with respect to the Company’s obligations under this Indenture or the Notes;


(C)       secure
the Notes;


(D)       add
to the Company’s covenants or Events of Default for the benefit of the Holders or surrender any right or power conferred
on the Company;


(E)       provide
for the assumption of the Company’s obligations under this Indenture and the Notes pursuant to, and in compliance with, Article
6;


(F)       enter
into supplemental indentures pursuant to, and in accordance with, Section 5.08 in connection with a Common Stock Change
Event;


(G)       evidence
or provide for the acceptance of the appointment, under this Indenture, of a successor Trustee;


(H)       conform
the provisions of this Indenture and the Notes to the “Description of Notes” section of the Company’s preliminary
offering memorandum, dated November 18, 2019, as supplemented by the related pricing term sheet, dated November 19, 2019;


(I)       provide
for or confirm the issuance of additional Notes pursuant to Section 2.03(B);


(J)       comply
with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the
Trust Indenture Act, as then in effect; or


    	 	- 55 - 	 



     


    

(K)       make
any other change to this Indenture or the Notes that does not, individually or in the aggregate with all other such changes, adversely
affect the rights of the Holders, as such, in any material respect, as determined by the Company in good faith.


At the written request
of any Holder of a Note or owner of a beneficial interest in a Global Note, the Company will provide a copy of the “Description
of Notes” section and pricing term sheet referred to in (H).


 


Section
8.02.  With the Consent of Holders.


(A)       Generally.
Subject to Sections 8.01, 7.05 and 7.08 and the immediately following sentence, the Company and the Trustee
may, with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including consents
obtained in connection with a repurchase of, or tender or exchange offer for, Notes), amend or supplement this Indenture or the
Notes or waive compliance with any provision of this Indenture or the Notes. Notwithstanding anything to the contrary in the foregoing
sentence, but subject to Section 8.01, without the consent of each affected Holder, no amendment or supplement to this Indenture
or the Notes, or waiver of any provision of this Indenture or the Notes, may:


(i)       reduce
the principal, or extend the stated maturity, of any Note;


(ii)       reduce
the Fundamental Change Repurchase Price for any Note or change the times at which, or the circumstances under which, the Notes
will be repurchased by the Company;


(iii)       reduce
the rate, or extend the time for the payment, of interest on any Note;


(iv)       make
any change that adversely affects the conversion rights of any Note;


(v)       impair
the rights of any Holder set forth in Section 7.08 (as such section is in effect on the Issue Date);


(vi)       change
the ranking of the Notes;


(vii)       make
any Note payable in money, or at a place of payment, other than that stated in this Indenture or the Note;


(viii)       reduce
the amount of Notes whose Holders must consent to any amendment, supplement, waiver or other modification; or


(ix)       make
any direct or indirect change to any amendment, supplement, waiver or modification provision of this Indenture or the Notes that
requires the consent of each affected Holder.


For the avoidance of doubt,
pursuant to clauses (i), (ii), (iii) and (iv) of this Section 8.02(A), no amendment or supplement
to this Indenture or the Notes, or waiver of any provision of this Indenture or the Notes, may change the amount or type of consideration
due on any Note (whether on an Interest Payment Date, Fundamental Change Repurchase Date or the Maturity Date or upon conversion,
or otherwise), or the date(s) or time(s) such consideration is payable or deliverable, as applicable, without the consent of each
affected Holder.


 


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(B)       Holders
Need Not Approve the Particular Form of any Amendment. A consent of any Holder pursuant to this Section 8.02 need approve
only the substance, and not necessarily the particular form, of the proposed amendment, supplement or waiver.


Section
8.03.  Notice of Amendments, Supplements and Waivers.


As soon as reasonably practicable
after any amendment, supplement or waiver pursuant to Section 8.01 or 8.02 becomes effective, the Company will send
to the Holders and the Trustee notice that (A) describes the substance of such amendment, supplement or waiver in reasonable detail
and (B) states the effective date thereof; provided, however, that the Company will not be required to provide such
notice to the Holders if such amendment, supplement or waiver is included in a periodic report filed by the Company with the SEC
within four (4) Business Days of its effectiveness. The failure to send, or the existence of any defect in, such notice will not
impair or affect the validity of such amendment, supplement or waiver.


 


Section
8.04.  Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.


(A)       Revocation
and Effect of Consents. The consent of a Holder of a Note to an amendment, supplement or waiver will bind (and constitute the
consent of) each subsequent Holder of any Note to the extent the same evidences any portion of the same indebtedness as the consenting
Holder’s Note, subject to the right of any Holder of a Note to revoke (if not prohibited pursuant to Section 8.04(B))
any such consent with respect to such Note by delivering notice of revocation to the Trustee before the time such amendment, supplement
or waiver becomes effective.


(B)       Special
Record Dates. The Company may, but is not required to, fix a record date for the purpose of determining the Holders entitled
to consent or take any other action in connection with any amendment, supplement or waiver pursuant to this Article 8. If
a record date is fixed, then, notwithstanding anything to the contrary in Section 8.04(A), only Persons who are Holders
as of such record date (or their duly designated proxies) will be entitled to give such consent, to revoke any consent previously
given or to take any such action, regardless of whether such Persons continue to be Holders after such record date; provided,
however, that no such consent will be valid or effective for more than one hundred and twenty (120) calendar days after
such record date.


(C)       Solicitation
of Consents. For the avoidance of doubt, each reference in this Indenture or the Notes to the consent of a Holder will be deemed
to include any such consent obtained in connection with a repurchase of, or tender or exchange offer for, any Notes.


(D)       Effectiveness
and Binding Effect. Each amendment, supplement or waiver pursuant to this Article 8 will become effective in accordance
with its terms and, when it becomes effective with respect to any Note (or any portion thereof), will thereafter bind every Holder
of such Note (or such portion).


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Section
8.05.  Notations and Exchanges.


If any amendment, supplement
or waiver changes the terms of a Note, then the Trustee or the Company may, in its discretion, require the Holder of such Note
to deliver such Note to the Trustee so that the Trustee may place an appropriate notation prepared by the Company on such Note
and return such Note to such Holder. Alternatively, at its discretion, the Company may, in exchange for such Note, issue, execute
and deliver, and the Trustee will authenticate, in each case in accordance with Section 2.02, a new Note that reflects the
changed terms. The failure to make any appropriate notation or issue a new Note pursuant to this Section 8.05 will not impair
or affect the validity of such amendment, supplement or waiver.


 


Section
8.06.  Trustee to Execute Supplemental Indentures.


The Trustee will execute
and deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however,
that the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or supplemental
indenture that adversely affects the Trustee’s rights, duties, liabilities or immunities. In executing any amendment or supplemental
indenture, the Trustee will be provided with, and (subject to Sections 10.01 and 10.02) will be fully protected in
relying on, an Officer’s Certificate and an Opinion of Counsel stating that (A) the execution and delivery of such amendment
or supplemental indenture is authorized or permitted by this Indenture; and (B) in the case of the Opinion of Counsel, such amendment
or supplemental indenture is valid, binding and enforceable against the Company in accordance with its terms.


 


Article 9.  Satisfaction
and Discharge


Section
9.01.  Termination of Company’s Obligations.


This Indenture will
be satisfied and discharged, and will cease to be of further effect as to all Notes issued under this Indenture, when:


(A)       all
Notes then outstanding (other than Notes replaced pursuant to Section 2.13) have (i) been delivered to the Trustee for cancellation;
or (ii) become due and payable (whether on a Fundamental Change Repurchase Date, the Maturity Date, upon conversion or otherwise)
for an amount of cash or Conversion Consideration, as applicable, that has been fixed;


(B)       the
Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to Conversion
Consideration, the Conversion Agent), in each case for the benefit of the Holders, or has otherwise caused there to be delivered
to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all amounts or
other property due on all Notes then outstanding (other than Notes replaced pursuant to Section 2.13);


(C)       the
Company has paid all other amounts payable by it under this Indenture; and


(D)       the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions
precedent to the satisfaction and discharge of this Indenture have been satisfied;


    	 	- 58 - 	 



     


    

provided, however, that Article
10 and Section 11.01 will survive such satisfaction and discharge and, until no Notes remain outstanding, Section
2.15 and the obligations of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property
deposited with them will survive such satisfaction and discharge.


 


At the Company’s
request, the Trustee will acknowledge the satisfaction and discharge of this Indenture.


 


Section
9.02.  Repayment to Company.


Subject to applicable unclaimed
property law, the Trustee, the Paying Agent and the Conversion Agent will promptly notify the Company if there exists (and, at
the Company’s request, promptly deliver to the Company) any cash, Conversion Consideration or other property held by any
of them for payment or delivery on the Notes that remain unclaimed two (2) years after the date on which such payment or delivery
was due. After such delivery to the Company, the Trustee, the Paying Agent and the Conversion Agent will have no further liability
to any Holder with respect to such cash, Conversion Consideration or other property, and Holders entitled to the payment or delivery
of such cash, Conversion Consideration or other property must look to the Company for payment as a general creditor of the Company.


 


Section
9.03.  Reinstatement.


If the Trustee, the Paying
Agent or the Conversion Agent is unable to apply any cash or other property deposited with it pursuant to Section 9.01 because
of any legal proceeding or any order or judgment of any court or other governmental authority that enjoins, restrains or otherwise
prohibits such application, then the discharge of this Indenture pursuant to Section 9.01 will be rescinded; provided,
however, that if the Company thereafter pays or delivers any cash or other property due on the Notes to the Holders thereof,
then the Company will be subrogated to the rights of such Holders to receive such cash or other property from the cash or other
property, if any, held by the Trustee, the Paying Agent or the Conversion Agent, as applicable.


 


Article 10.  Trustee


Section
10.01.  Duties of the Trustee.


(A)       If
an Event of Default has occurred and is continuing, the Trustee will 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.


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


(i)       the
duties of the Trustee will be determined solely by the express provisions of this Indenture, and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations will be read
into this Indenture against the Trustee; and


    	 	- 59 - 	 



     


    

(ii)       The
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s
Certificates or Opinions of Counsel that are provided to the Trustee and conform to the requirements of this Indenture. However,
the Trustee will examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.


(C)       The
Trustee may not be relieved from liabilities for its negligence or willful misconduct, except that:


(i)       this
paragraph will not limit the effect of Section 10.01(B);


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


(iii)       the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 7.06.


(D)       Each
provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (A), (B) and (C)
of this Section 10.01, regardless of whether such provision so expressly provides.


(E)       No
provision of this Indenture will require the Trustee to expend or risk its own funds or incur any liability.


(F)       The
Trustee will not be liable for interest on any money received by it, except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds, except to the extent required by law.


Section
10.02.  Rights of the Trustee.


(A)       The
Trustee may conclusively rely on any document that it believes to be genuine and signed or presented by the proper Person, and
the Trustee need not investigate any fact or matter stated in such document.


(B)       Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee
will not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel. The Trustee may consult with counsel; and the advice of such counsel, or any Opinion of Counsel, will constitute full
and complete authorization of the Trustee to take or omit to take any action in good faith in reliance thereon without liability.


(C)       The
Trustee may act through its attorneys and agents and will not be responsible for the misconduct or negligence of any such agent
appointed with due care.


(D)       The
Trustee will not be liable for any action it takes or omits to take in good faith and that it believes to be authorized or within
the rights or powers vested in it by this Indenture.


    	 	- 60 - 	 



     


    

(E)       Unless
otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company will be sufficient
if signed by an Officer of the Company.


(F)       The
Trustee need not exercise any rights or powers vested in it by this Indenture at the request or direction of any Holder unless
such Holder has offered the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense that
it may incur in complying with such request or direction.


(G)       The
Trustee will not be responsible or liable for any punitive, special, indirect or consequential loss or damage (including lost profits),
even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.


(H)       the
Trustee will 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, Note, other evidence of indebtedness
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 will determine to make such further inquiry or investigation, it will be entitled
to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and
will incur no liability or additional liability of any kind by reason of such inquiry or investigation.


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


 


Section
10.03.  Individual Rights of the Trustee.


The Trustee, in its individual
or any other capacity, may become the owner or pledgee of any Note and may otherwise deal with the Company or any of its Affiliates
with the same rights that it would have if it were not Trustee; provided, however, that if the Trustee acquires a
“conflicting interest” (within the meaning of Section 310(b) of the Trust Indenture Act), then it must eliminate such
conflict within ninety (90) days or resign as Trustee. Each Note Agent will have the same rights and duties as the trustee under
this Section 10.03.


 


Section
10.04.  Trustee’s Disclaimer.


The Trustee will not be
(A) responsible for, and makes no representation as to, the validity or adequacy of this Indenture or the Notes; (B) accountable
for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction
under any provision of this Indenture; (C) responsible for the use or application of any money received by any Paying Agent other
than the Trustee; and (D) responsible for any statement or recital in this Indenture, the Notes or any other document relating
to the sale of the Notes or this Indenture, other than the Trustee’s certificate of authentication.


 


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Section
10.05.  Notice of Defaults.


If a Default or Event of
Default occurs and is continuing, and written notice of which is given to the Trustee, then the Trustee will send Holders a notice
of such Default or Event of Default within ninety (90) days after it occurs or, if written notice of which is not given to the
Trustee at such time, promptly (and in any event within ten (10) Business Days) after written notice of which is given to a Responsible
Officer; provided, however, that, except in the case of a Default or Event of Default in the payment of the principal
of, or interest on, any Note, the Trustee may withhold such notice if and for so long as it in good faith determines that withholding
such notice is in the interests of the Holders.


 


Section
10.06.  Compensation and Indemnity.


(A)       The
Company will, from time to time, pay the Trustee reasonable compensation for its acceptance of this Indenture and services under
this Indenture. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust.
In addition to the compensation for the Trustee’s services, the Company will reimburse the Trustee promptly upon request
for all reasonable disbursements, advances and expenses incurred or made by it under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee’s agents and counsel.


(B)       The
Company will indemnify the Trustee against any and all losses, liabilities, claims, damages or expenses incurred by it arising
out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Company (including this Section 10.06) and defending itself against any claim (whether
asserted by the Company, any Holder or any other Person) or liability in connection with the exercise or performance of any of
its powers or duties under this Indenture, except to the extent any such loss, liability, claim, damage or expense will be determined
to have been caused by its own negligence or willful misconduct. The Trustee will promptly notify the Company of any claim of which
the Trustee has received written notice and for which it may seek indemnity, but the Trustee’s failure to so notify the Company
will not relieve the Company of its obligations under this Section 10.06(B), except to the extent the Company is materially
prejudiced by such failure. The Company will defend such claim, and the Trustee will cooperate in such defense. If the Trustee
is advised by counsel that it may have defenses available to it that are in conflict with the defenses available to the Company,
or that there is an actual or potential conflict of interest, then the Trustee may retain separate counsel, and the Company will
pay the reasonable fees and expenses of such counsel (including the reasonable fees and expenses of counsel to the Trustee incurred
in evaluating whether such a conflict exists). The Company need not pay for any settlement of any such claim made without its consent,
which consent will not be unreasonably withheld.


(C)       The
obligations of the Company under this Section 10.06 will survive the resignation or removal of the Trustee and the discharge
of this Indenture.


(D)       To
secure the Company’s payment obligations in this Section 10.06, the Trustee will have a lien prior to the Notes on
all money or property held or collected by the Trustee, except that held in trust to pay principal of, or interest on, particular
Notes, which lien will survive the discharge of this Indenture.


    	 	- 62 - 	 



     


    

(E)       If
the Trustee incurs expenses or renders services after an Event of Default pursuant to clause (ix) or (x) of Section
7.01(A) occurs, then such expenses and the compensation for such services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any Bankruptcy Law.


Section
10.07.  Replacement of the Trustee.


(A)       Notwithstanding
anything to the contrary in this Section 10.07, a resignation or removal of the Trustee, and the appointment of a successor
Trustee, will become effective only upon such successor Trustee’s acceptance of appointment as provided in this Section
10.07.


(B)       The
Trustee may resign at any time upon thirty (30) days’ written notice and be discharged from the trust created by this Indenture
by so notifying the Company. The Holders of a majority in aggregate principal amount of the Notes then outstanding may remove the
Trustee upon thirty (30) days’ notice by so notifying the Trustee and the Company in writing. The Company may remove the
Trustee upon thirty (30) days’ notice if:


(i)       the
Trustee fails to comply with Section 10.09;


(ii)       the
Trustee is adjudged to be bankrupt or insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy
Law;


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


(iv)       the
Trustee becomes incapable of acting.


(C)       If
the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, then (i) the Company will promptly
appoint a successor Trustee; and (ii) at any time within one (1) year after the successor Trustee takes office, the Holders of
a majority in aggregate principal amount of the Notes then outstanding may appoint a successor Trustee to replace such successor
Trustee appointed by the Company.


(D)       If
a successor Trustee does not take office within sixty (60) days after the retiring Trustee resigns or is removed, then the retiring
Trustee, the Company or the Holders of at least ten percent (10%) in aggregate principal amount of the Notes then outstanding may
petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee.


(E)       If
the Trustee, after written request by a Holder of at least six (6) months, fails to comply with Section 10.09, then such
Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.


(F)       A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company, upon which notice
the resignation or removal of the retiring Trustee will become effective and the successor Trustee will have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee will send notice of its succession to Holders. The retiring
Trustee will, upon payment of all amounts due to it under this Indenture, promptly transfer all property held by it as Trustee
to the successor Trustee, which property will, for the avoidance of doubt, be subject to the lien provided for in Section 10.06(D).


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Section
10.08.  Successor Trustee by Merger, Etc.


If the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, then such
corporation will become the successor Trustee without any further act.


 


Section
10.09.  Eligibility; Disqualification.


There will at all times
be a Trustee under this Indenture that is a corporation organized and doing business under the laws of the United States of America
or of any state thereof, that is authorized under such laws to exercise corporate trustee power, that is subject to supervision
or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set forth
in its most recent published annual report of condition.


 


Article 11.  Miscellaneous


Section
11.01.  Notices.


Any notice or communication
by the Company or the Trustee to the other will be deemed to have been duly given if in writing and delivered in person or by first
class mail (registered or certified, return receipt requested), facsimile transmission, electronic transmission or other similar
means of unsecured electronic communication or overnight air courier guaranteeing next day delivery, or to the other’s address,
which initially is as follows:


If to the Company
:


The Chefs’ Warehouse, Inc.


100 East Ridge Road


Ridgefield, Connecticut 06877


Attention: Alexandros Aldous


 


with a copy (which will not constitute
notice) to:


Shearman & Sterling LLP


599 Lexington Avenue


New York, New York 10022


Attention: Richard Alsop, Esq.


 


If to the Trustee:


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


500 Ross Street, 12th Floor


Pittsburgh, PA 15262


Facsimile: 412-234-8377


Attention: Corporate Trust Administration


 


    	 	- 64 - 	 



     


    

The Company or the Trustee,
by notice to the other, may designate additional or different addresses (including facsimile numbers and electronic addresses)
for subsequent notices or communications.


 


All notices and communications
(other than those sent to Holders) will be deemed to have been duly given: (A) at the time delivered by hand, if personally delivered;
(B) five (5) Business Days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt acknowledged, if transmitted
by facsimile, electronic transmission or other similar means of unsecured electronic communication; and (D) the next Business Day
after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.


 


All notices or communications
required to be made to a Holder pursuant to this Indenture must be made in writing and will be deemed to be duly sent or given
in writing if mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing
next day delivery, to its address shown on the Register; provided, however, that a notice or communication to a Holder
of a Global Note may, but need not, instead be sent pursuant to the Depositary Procedures (in which case, such notice will be deemed
to be duly sent or given in writing). The failure to send a notice or communication to a Holder, or any defect in such notice or
communication, will not affect its sufficiency with respect to any other Holder.


 


If the Trustee is then
acting as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee, the Trustee
will cause any notice prepared by the Company to be sent to any Holder(s) pursuant to the Depositary Procedures, provided
such request is evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least two (2)
Business Days before the date such notice is to be so sent. For the avoidance of doubt, such Company Order need not be accompanied
by an Officer’s Certificate or Opinion of Counsel. The Trustee will not have any liability relating to the contents of any
notice that it sends to any Holder pursuant to any such Company Order.


 


If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it will be deemed to have been duly given, whether or
not the addressee receives it.


 


Notwithstanding anything
to the contrary in this Indenture or the Notes, (A) whenever any provision of this Indenture requires a party to send notice to
another party, no such notice need be sent if the sending party and the recipient are the same Person acting in different capacities;
and (B) whenever any provision of this Indenture requires a party to send notice to more than one receiving party, and each receiving
party is the same Person acting in different capacities, then only one such notice need be sent to such Person.


 


The Trustee agrees to accept
and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other
similar unsecured electronic methods; provided, however, that the Trustee will have received an incumbency certificate
listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons,
which such incumbency certificate will be amended and replaced whenever a person is to be added or deleted from the listing. The
Trustee will not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon
and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction.


 


    	 	- 65 - 	 



     


    

Section
11.02.  Delivery of Officer’s Certificate and Opinion of Counsel as to Conditions Precedent.


Upon any request
or application by the Company to the Trustee to take any action under this Indenture (other than the initial authentication of
Notes under this Indenture), the Company will furnish to the Trustee:


(A)       an
Officer’s Certificate in form and substance reasonably satisfactory to the Trustee that complies with Section 11.03
and states that, in the opinion of the signatory thereto, all conditions precedent and covenants, if any, provided for in this
Indenture relating to such action have been satisfied; and


(B)       an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee that complies with Section 11.03 and states
that, in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied.


Section
11.03.  Statements Required in Officer’s Certificate and Opinion of Counsel.


Each Officer’s
Certificate (other than an Officer’s Certificate pursuant to Section 3.05) or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in this Indenture will include:


(A)       a
statement that the signatory thereto has read such covenant or condition;


(B)       a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
therein are based;


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


(D)       a
statement as to whether, in the opinion of such signatory, such covenant or condition has been satisfied.


Section
11.04.  Rules by the Trustee, the Registrar and the Paying Agent.


The Trustee may make reasonable
rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements
for its functions.


 


    	 	- 66 - 	 



     


    

Section
11.05.  No Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders.


No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of
the Company under this Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their
creation. By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration
for the issuance of the Notes.


 


Section
11.06.  Governing Law; Waiver of Jury Trial.


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


 


Section
11.07.  Submission to Jurisdiction.


Any legal suit, action
or proceeding arising out of or based upon this Indenture or the transactions contemplated by this Indenture may be instituted
in the federal courts of the United States of America located in the City of New York or the courts of the State of New York, in
each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably
submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons,
notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address
set forth in Section 11.01 will be effective service of process for any such suit, action or proceeding brought in any such
court. Each of the Company, the Trustee and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives
any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waives and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.


 


Section
11.08.  No Adverse Interpretation of Other Agreements.


Neither this Indenture
nor the Notes may be used to interpret any other indenture, note, loan or debt agreement of the Company or its Subsidiaries or
of any other Person, and no such indenture, note, loan or debt agreement may be used to interpret this Indenture or the Notes.


 


Section
11.09.  Successors.


All agreements of the Company
in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors.


 


    	 	- 67 - 	 



     


    

Section
11.10.  Force Majeure.


The Trustee and each Note
Agent will not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under this Indenture
or the Notes by reason of any occurrence beyond its control (including any act or provision of any present or future law or regulation
or governmental authority, act of God or war, civil unrest, local or national disturbance or disaster, act of terrorism or unavailability
of the Federal Reserve Bank wire or facsimile or other wire or communication facility).


 


Section
11.11.  U.S.A. PATRIOT Act.


The Company acknowledges
that, in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions, 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 Company agrees to provide the
Trustee with such information as it may request to enable the Trustee to comply with the U.S.A. PATRIOT Act.


 


Section
11.12.  Calculations.


Except as otherwise provided
in this Indenture, the Company will be responsible for making all calculations called for under this Indenture or the Notes, including
determinations of the Last Reported Sale Price, accrued interest on the Notes and the Conversion Rate.


 


The Company will make all
calculations in good faith, and, absent manifest error, its calculations will be final and binding on all Holders. The Company
will provide a schedule of its calculations to the Trustee and the Conversion Agent, and each of the Trustee and the Conversion
Agent may rely conclusively on the accuracy of the Company’s calculations without independent verification. The Trustee will
promptly forward a copy of each such schedule to a Holder upon its written request therefor.


 


Section
11.13.  Severability.


If any provision of this
Indenture or the Notes is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions
of this Indenture or the Notes will not in any way be affected or impaired thereby.


 


Section
11.14.  Counterparts.


The parties may sign any
number of copies of this Indenture. Each signed copy will be an original, and all of them together represent the same agreement.
Delivery of an executed counterpart of this Indenture by facsimile, electronically in portable document format or in any other
format will be effective as delivery of a manually executed counterpart.


 


Section
11.15.  Table of Contents, Headings, Etc.


The table of contents and
the headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and will in no way modify or restrict any of the terms or provisions of this Indenture.


 


    	 	- 68 - 	 



     


    

Section
11.16.  Withholding Taxes.


Each Holder of a Note agrees,
and each beneficial owner of an interest in a Global Note, by its acquisition of such interest, is deemed to agree, that if the
Company or other applicable withholding agent pays withholding taxes or backup withholding on behalf of such Holder or beneficial
owner as a result of an adjustment to the Conversion Rate, then the Company or such withholding agent, as applicable, may, at its
option, set off such payments against payments of cash or the delivery of other Conversion Consideration on such Note, any payments
on the Common Stock or sales proceeds received by, or other funds or assets of, such Holder or the beneficial owner of such Note.


 


[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]


 


 


 


 


 


 


 


 


 


 


    	 	- 69 - 	 



     


    

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


 


 


	 	The Chefs’ Warehouse, Inc.
	 	 
	 	 	 
	 	By:	/s/ Christopher Pappas
	 	 	Name:	Christopher Pappas
	 	 	Title:	Chairman, President and Chief Executive Officer


 


 


 


 


	 	The Bank of New York Mellon Trust Company, N.A., as Trustee
	 	 
	 	 	 
	 	By:	/s/ Lawerence M. Kusch
	 	 	Name:	Lawrence M. Kusch
	 	 	Title:	Vice President


 


 


 


 


 


 


 


 





[Signature Page to Indenture]







    	 	 	 



     


    

EXHIBIT A


 


FORM OF NOTE


 


[Insert Global Note Legend, if applicable]


 


[Insert Restricted Note Legend, if applicable]


 


THE CHEFS’ WAREHOUSE, INC.


 


1.875% Convertible Senior Note due 2024


 


CUSIP No.:  [___][Insert for a “restricted”
CUSIP number: *]               Certificate
No.[___]


ISIN No.:     [___][Insert for a “restricted” ISIN number: *]


 


The Chefs’ Warehouse,
Inc., a Delaware corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal
sum of [___] dollars ($[___]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)]†
on December 1, 2024 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued
and unpaid interest are paid or duly provided for.


 


	Interest Payment Dates:	June 1 and December 1 of each year, commencing on [date].
	 	 
	Regular Record Dates:	May 15 and November 15.


 


Additional provisions of
this Note are set forth on the other side of this Note.


 


[The Remainder of This Page Intentionally
Left Blank; Signature Page Follows]


 


 


 


 


 


 


 


 

 



		*	This Note will be deemed to be identified by CUSIP No. [___] and ISIN No. [___] from and after
such time when the Company delivers, pursuant to Section 2.12 of the within-mentioned Indenture, written notice to the Trustee
of the deemed removal of the Restricted Note Legend affixed to this Note.
	 	†	Insert bracketed language for Global Notes only.



 


    	 	A-1	 



     


    

IN WITNESS WHEREOF,
The Chefs’ Warehouse, Inc. has caused this instrument to be duly executed as of the date set forth below.


 


	 	 	 	The Chefs’ Warehouse, Inc.
	 	 	 	 	 
	 	 	 	 	 
	Date:	 	 	By:	 
	 	 	 	 	Name:	 
	 	 	 	 	Title:	 


 


 


 


 


 


 


 


 


 


    	 	A-2	 



     


    

TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


The Bank of New York Mellon Trust Company,
N.A., as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.


 


	Date:	 	 	By:	 	 
	 	 	 	 	 	Authorized Signatory





 


 


 


 


 


 


 


 


 


    	 	A-3	 



     


    

THE CHEFS’ WAREHOUSE, INC.


 


1.875% Convertible Senior Note due 2024


 


This Note is one of a duly
authorized issue of notes of The Chefs’ Warehouse, Inc., a Delaware corporation (the “Company”), designated
as its 1.875% Convertible Senior Notes due 2024 (the “Notes”), all issued or to be issued pursuant to an indenture,
dated as of November 22, 2019 (as the same may be amended from time to time, the “Indenture”), between the Company
and The Bank of New York Mellon Trust Company, N.A., as trustee. Capitalized terms used in this Note without definition have the
respective meanings ascribed to them in the Indenture.


 


The Indenture sets forth
the rights and obligations of the Company, the Trustee and the Holders and the terms of the Notes. Notwithstanding anything to
the contrary in this Note, to the extent that any provision of this Note conflicts with the provisions of the Indenture, the provisions
of the Indenture will control.


 


1.       Interest.
This Note will accrue interest at a rate and in the manner set forth in Section 2.05 of the Indenture. Stated Interest on this
Note will begin to accrue from, and including, [date].


 


2.       Maturity.
This Note will mature on December 1, 2024, unless earlier repurchased or converted.


 


3.       Method
of Payment. Cash amounts due on this Note will be paid in the manner set forth in Section 2.04 of the Indenture.


 


4.       Persons
Deemed Owners. The Holder of this Note will be treated as the owner of this Note for all purposes.


 


5.       Denominations;
Transfers and Exchanges. All Notes will be in registered form, without coupons, in principal amounts equal to any Authorized
Denominations. Subject to the terms of the Indenture, the Holder of this Note may transfer or exchange this Note by presenting
it to the Registrar and delivering any required documentation or other materials.


 


6.       Right
of Holders to Require the Company to Repurchase Notes upon a Fundamental Change. If a Fundamental Change occurs, then each
Holder will have the right to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized
Denomination) for cash in the manner, and subject to the terms, set forth in Section 4.02 of the Indenture.


 


7.       No
Right of Redemption by the Company. The Company does not have the right to redeem the Notes at its election.


 


8.       Conversion.
The Holder of this Note may convert this Note into Conversion Consideration in the manner, and subject to the terms, set forth
in Article 5 of the Indenture.


 


    	 	A-4	 



     


    

9.       When
the Company May Merge, Etc. Article 6 of the Indenture places limited restrictions on the Company’s ability to be a party
to a Business Combination Event.


 


10.       Defaults
and Remedies. If an Event of Default occurs, then the principal amount of, and all accrued and unpaid interest on, all of the
Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject
to the terms, set forth in Article 7 of the Indenture.


 


11.       Amendments,
Supplements and Waivers. The Company and the Trustee may amend or supplement the Indenture or the Notes or waive compliance
with any provision of the Indenture or the Notes in the manner, and subject to the terms, set forth in Article 8 of the Indenture.


 


12.       No
Personal Liability of Directors, Officers, Employees, Incorporators and Stockholders. No past, present or future director,
officer, employee, incorporator or stockholder of the Company, as such, will have any liability for any obligations of the Company
under the Indenture or the Notes or for any claim based on, in respect of, or by reason of, such obligations or their creation.
By accepting any Note, each Holder waives and releases all such liability. Such waiver and release are part of the consideration
for the issuance of the Notes.


 


13.       Authentication.
No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized
signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.


 


14.       Abbreviations.
Customary abbreviations may be used in the name of a Holder or its assignee, such as TEN COM (tenants in common), TEN ENT (tenants
by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (custodian), and U/G/M/A
(Uniform Gift to Minors Act).


 


15.       Governing
Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


* * *


 


To request a copy
of the Indenture, which the Company will provide to any Holder at no charge, please send a written request to the following address:


The Chefs’ Warehouse, Inc.


100 East Ridge Road


Ridgefield, Connecticut 06877


Attention: James Leddy


 


    	 	A-5	 



     


    

SCHEDULE OF EXCHANGES OF INTERESTS IN THE
GLOBAL NOTE*


 


INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE:
$[___]


 


The following exchanges, transfers or cancellations
of this Global Note have been made:


 


	Date	 	Amount
        of Increase (Decrease) in Principal Amount of this Global Note	 	Principal
        Amount of this Global Note After Such Increase (Decrease)	 	Signature
        of Authorized Signatory of Trustee
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 







 


 



		*	Insert for Global Notes only.



    	 	A-6	 



     


    

CONVERSION NOTICE


 


THE CHEFS’ WAREHOUSE, INC.


 


1.875% Convertible Senior Notes due 2024


 


Subject to the terms of the Indenture,
by executing and delivering this Conversion Notice, the undersigned Holder of the Note identified below directs the Company to
convert (check one):


		o	the entire principal amount of



 


		o	$                     *
aggregate principal amount of



 


the Note identified by CUSIP No.                      
and Certificate No.                      .


 


The undersigned acknowledges that if the Conversion
Date of a Note to be converted is after a Regular Record Date and before the next Interest Payment Date, then such Note, when surrendered
for conversion, must, in certain circumstances, be accompanied with an amount of cash equal to the interest that would have accrued
on such Note to, but excluding, such Interest Payment Date.


 


 


	Date:	 	 	 
	 	 	 	(Legal Name of Holder)


 


 


 


	 	 	 	By:	 
	 	 	 	 	Name:	 
	 	 	 	 	Title:	 


 


 


 


	 	 	 	Signature Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	
        Participant in a Recognized Signature

        Guarantee Medallion Program



 


 


 


	 	 	 	By:	 
	 	 	 	 	Authorized Signatory


 


 

 



		*	Must be an Authorized Denomination.


 


    	 	A-7	 



     


    

FUNDAMENTAL CHANGE REPURCHASE NOTICE


 


THE CHEFS’ WAREHOUSE, INC.


 


1.875% Convertible Senior Notes due 2024


 


Subject to the terms of the Indenture,
by executing and delivering this Fundamental Change Repurchase Notice, the undersigned Holder of the Note identified below is exercising
its Fundamental Change Repurchase Right with respect to (check one):


		o	the entire principal amount of



 


		o	$                     *
aggregate principal amount of



 


the Note identified by CUSIP No.                      
and Certificate No.                      .


 


The undersigned acknowledges that this Note,
duly endorsed for transfer, must be delivered to the Paying Agent before the Fundamental Change Repurchase Price will be paid.


 


 


 


	Date:	 	 	 
	 	 	 	(Legal Name of Holder)


 


 


 


	 	 	 	By:	 
	 	 	 	 	Name:	 
	 	 	 	 	Title:	 


 


 


 


	 	 	 	Signature Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	
        Participant in a Recognized Signature

        Guarantee Medallion Program



 


 


 


	 	 	 	By:	 
	 	 	 	 	Authorized Signatory


 


 

 



		*	Must be an Authorized Denomination.


 


    	 	A-8	 



     


    

ASSIGNMENT FORM


 


THE CHEFS’ WAREHOUSE, INC.


 


1.875% Convertible Senior Notes due 2024


 


Subject to the terms of the Indenture,
the undersigned Holder of the within Note assigns to:


	Name:	 	 
	 	 	 
	Address:	 	 
	 	 	 
	Social security or	 	 
	tax identification	 	 
	number:	 	 


 


 


the within Note and all rights thereunder
and irrevocably appoints:


as agent to transfer the within Note on the
books of the Company. The agent may substitute another to act for him/her.


 


	Date:	 	 	 
	 	 	 	(Legal Name of Holder)


 


 


 


	 	 	 	By:	 
	 	 	 	 	Name:	 
	 	 	 	 	Title:	 


 


 


 


	 	 	 	Signature Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	
        Participant in a Recognized Signature

        Guarantee Medallion Program



 


 


 


	 	 	 	By:	 
	 	 	 	 	Authorized Signatory


 


 


    	 	A-9	 



     


    

TRANSFEROR ACKNOWLEDGEMENT


 


If the within Note bears a Restricted
Note Legend, the undersigned further certifies that (check one):


		1. o	Such Transfer is being made to the Company or
a Subsidiary of the Company.



 


		2. o	Such Transfer is being made pursuant to, and in
accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer.



 


		3. o	Such Transfer is being made pursuant to, and in
accordance with, Rule 144A under the Securities Act, and, accordingly, the undersigned further certifies that the within Note is
being transferred to a Person that the undersigned reasonably believes is purchasing the within Note for its own account, or for
one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account
is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act in a transaction meeting
the requirements of Rule 144A. If this item is checked, then the transferee must complete and execute the acknowledgment contained
on the next page.



 


		4. o	Such Transfer is being made pursuant to, and in
accordance with, any other available exemption from the registration requirements of the Securities Act (including, if available,
the exemption provided by Rule 144 under the Securities Act).



 


	Dated:	 	 


 


 


	 	 
	(Legal Name of Holder)	 


 


 


	By:	 	 
	 	Name:	 	 
	 	Title:	 	 


 


Signature Guaranteed:


	 	 
	(Participant in a Recognized Signature	 
	Guarantee Medallion Program)	 


 


 


	By:	 	 
	 	Authorized Signatory	 


 


 


    	 	A-10	 



     


    

TRANSFEREE ACKNOWLEDGEMENT


 


The undersigned represents that it is purchasing
the within Note for its own account, or for one or more accounts with respect to which the undersigned exercises sole investment
discretion, and that and the undersigned and each such account is a “qualified institutional buyer” within the meaning
of Rule 144A under the Securities Act. The undersigned acknowledges that the transferor is relying, in transferring the within
Note on the exemption from the registration and prospectus-delivery requirements of the Securities Act of 1933, as amended, provided
by Rule 144A and that the undersigned has received such information regarding the Company as the undersigned has requested pursuant
to Rule 144A.


 


	Dated:	 	 


 


 


	 	 
	(Name of Transferee)	 


 


 


	By:	 	 
	 	Name:	 	 
	 	Title:	 	 


 


 


 


 


 


    	 	A-11	 



     


    

EXHIBIT B-1


 


FORM OF RESTRICTED NOTE LEGEND


 


THE OFFER AND SALE OF THIS NOTE AND
THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD 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 THE COMPANY THAT IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE
OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT ONLY:



		(A)	TO THE COMPANY OR ANY SUBSIDIARY THEREOF;



 


		(B)	PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT;



 


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



 


		(D)	PURSUANT TO RULE 144 UNDER THE SECURITIES ACT; OR



 


		(E)	PURSUANT TO ANY OTHER EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.



 


BEFORE THE REGISTRATION OF ANY SALE OR TRANSFER
IN ACCORDANCE WITH (2)(C), (D) OR (E) ABOVE, THE COMPANY, THE TRUSTEE AND THE REGISTRAR RESERVE THE RIGHT TO REQUIRE THE DELIVERY
OF SUCH CERTIFICATES OR OTHER DOCUMENTATION OR EVIDENCE AS THEY MAY REASONABLY REQUIRE IN ORDER TO DETERMINE THAT THE PROPOSED
SALE OR TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.*


 


 

 



		*	This paragraph and the immediately preceding paragraph will be deemed to be removed from the face
of this Note at such time when the Company delivers written notice to the Trustee of such deemed removal pursuant to Section 2.12
of the within-mentioned Indenture.


 


    	 	B1-1	 



     


    

EXHIBIT B-2


 


FORM OF GLOBAL NOTE LEGEND


 


THIS IS A GLOBAL NOTE WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY
BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“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 HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS
OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF
THE INDENTURE HEREINAFTER REFERRED TO.


 


 


 


 



    	 	B2-1