final8-kexhibit






Exhibit 4.1  ═══════════════════════════════════════════════════════  ═══════════════════════════════════════════════════════  PEABODY ENERGY CORPORATION    and    WILMINGTON TRUST, NATIONAL ASSOCIATION    as Trustee  ─────────────────────  INDENTURE    Dated as of March 1, 2022  ─────────────────────  3.250% Convertible Senior Notes due 2028  ═══════════════════════════════════════════════════════  ═══════════════════════════════════════════════════════    





 






  - i -    TABLE OF CONTENTS    Page    Article 1. Definitions; Rules of Construction ............................................................................... 1  Section 1.01. Definitions..........................................................................................................1  Section 1.02. Other Definitions. ............................................................................................12  Section 1.03. Rules of Construction. .....................................................................................13  Article 2. The Notes .................................................................................................................... 14  Section 2.01. Form, Dating and Denominations. ...................................................................14  Section 2.02. Execution, Authentication and Delivery. .........................................................14  Section 2.03. Initial Notes and Additional Notes. .................................................................15  Section 2.04. Method of Payment. .........................................................................................15  Section 2.05. Accrual of Interest; Defaulted Amounts; When Payment Date is Not a  Business Day. ...................................................................................................16  Section 2.06. Registrar, Paying Agent and Conversion Agent. .............................................17  Section 2.07. Paying Agent and Conversion Agent to Hold Property in Trust. ....................17  Section 2.08. Holder Lists. .....................................................................................................18  Section 2.09. Legends. ...........................................................................................................18  Section 2.10. Transfers and Exchanges; Certain Transfer Restrictions. ................................19  Section 2.11. Exchange and Cancellation of Notes to Be Converted or to Be  Repurchased Pursuant to a Repurchase Upon Fundamental Change or  Redemption. .....................................................................................................24  Section 2.12. Removal of Transfer Restrictions. ...................................................................25  Section 2.13. Replacement Notes. .........................................................................................26  Section 2.14. Registered Holders; Certain Rights with Respect to Global Notes. ................26  Section 2.15. Cancellation. ....................................................................................................26  Section 2.16. Notes Held by the Company or its Affiliates. ..................................................26  Section 2.17. Temporary Notes. ............................................................................................27  Section 2.18. Outstanding Notes. ...........................................................................................27  Section 2.19. Repurchases by the Company. .........................................................................28  Section 2.20. CUSIP and ISIN Numbers. ..............................................................................28  Article 3. Covenants .................................................................................................................... 28  Section 3.01. Payment on Notes. ...........................................................................................28  Section 3.02. Exchange Act Reports......................................................................................28  Section 3.03. Rule 144A Information. ...................................................................................29  Section 3.04. Additional Interest. ..........................................................................................29  Section 3.05. Compliance and Default Certificates. ..............................................................30  Section 3.06. Stay, Extension and Usury Laws. ....................................................................30  Section 3.07. Corporate Existence. ........................................................................................31  Section 3.08. Acquisition of Notes by the Company and its Affiliates. ................................31  Section 3.09. Further Instruments and Acts. ..........................................................................31  Article 4. Repurchase and Redemption....................................................................................... 31  





 






  - ii -    Section 4.01. No Sinking Fund. .............................................................................................31  Section 4.02. Right of Holders to Require the Company to Repurchase Notes Upon a  Fundamental Change. ......................................................................................31  Section 4.03. Right of the Company to Redeem the Notes. ..................................................36  Article 5. Conversion .................................................................................................................. 39  Section 5.01. Right to Convert. ..............................................................................................39  Section 5.02. Conversion Procedures. ...................................................................................43  Section 5.03. Settlement Upon Conversion. ..........................................................................44  Section 5.04. Reserve and Status of Common Stock Issued Upon Conversion. ...................48  Section 5.05. Adjustments to the Conversion Rate................................................................48  Section 5.06. Voluntary Adjustments. ...................................................................................59  Section 5.07. Adjustments to the Conversion Rate in Connection with a Make- Whole Fundamental Change. ...........................................................................60  Section 5.08. Exchange in Lieu of Conversion. .....................................................................61  Section 5.09. Effect of Common Stock Change Event. .........................................................62  Section 5.10. Responsibility of Trustee. ................................................................................63  Article 6. Successors ................................................................................................................... 64  Section 6.01. When the Company May Merge, Etc. .............................................................64  Section 6.02. Successor Entity Substituted. ...........................................................................65  Section 6.03. Exclusion for Asset Transfers with Wholly Owned Subsidiaries. ...................65  Article 7. Defaults and Remedies ............................................................................................... 65  Section 7.01. Events of Default. ............................................................................................65  Section 7.02. Acceleration. ....................................................................................................67  Section 7.03. Sole Remedy for a Failure to Report. ..............................................................68  Section 7.04. Other Remedies. ...............................................................................................69  Section 7.05. Waiver of Past Defaults. ..................................................................................69  Section 7.06. Control by Majority. ........................................................................................69  Section 7.07. Limitation on Suits. ..........................................................................................69  Section 7.08. Absolute Right of Holders to Institute Suit for the Enforcement of the  Right to Receive Payment and Conversion Consideration. .............................70  Section 7.09. Collection Suit by Trustee. ..............................................................................70  Section 7.10. Trustee May File Proofs of Claim. ..................................................................71  Section 7.11. Priorities. ..........................................................................................................71  Section 7.12. Undertaking for Costs. .....................................................................................72  Article 8. Amendments, Supplements and Waivers ................................................................... 72  Section 8.01. Without the Consent of Holders. .....................................................................72  Section 8.02. With the Consent of Holders............................................................................73  Section 8.03. Notice of Amendments, Supplements and Waivers. .......................................74  Section 8.04. Revocation, Effect and Solicitation of Consents; Special Record Dates;  Etc. ...................................................................................................................74  Section 8.05. Notations and Exchanges. ................................................................................75  Section 8.06. Trustee to Execute Supplemental Indentures. ..................................................75  Article 9. Satisfaction and Discharge .......................................................................................... 75  





 






  - iii -    Section 9.01. Termination of Company’s Obligations. .........................................................75  Section 9.02. Repayment to Company. ..................................................................................76  Section 9.03. Reinstatement. ..................................................................................................76  Article 10. Trustee......................................................................................................................... 76  Section 10.01. Duties of the Trustee. .......................................................................................76  Section 10.02. Rights of the Trustee. .......................................................................................77  Section 10.03. Individual Rights of the Trustee. .....................................................................78  Section 10.04. Trustee’s Disclaimer. .......................................................................................79  Section 10.05. Notice of Defaults. ...........................................................................................79  Section 10.06. Compensation and Indemnity. .........................................................................79  Section 10.07. Replacement of the Trustee. ............................................................................80  Section 10.08. Successor Trustee by Merger, Etc. ..................................................................81  Section 10.09. Eligibility; Disqualification. ............................................................................81  Article 11. Miscellaneous ............................................................................................................. 81  Section 11.01. Notices. ............................................................................................................81  Section 11.02. Delivery of Officer’s Certificate and Opinion of Counsel as to  Conditions Precedent. ......................................................................................83  Section 11.03. Statements Required in Officer’s Certificate and Opinion of Counsel. ...........83  Section 11.04. Rules by the Trustee, the Registrar and the Paying Agent. ..............................83  Section 11.05. No Personal Liability of Directors, Officers, Employees and  Stockholders. ....................................................................................................84  Section 11.06. Governing Law; Waiver of Jury Trial. .............................................................84  Section 11.07. Submission to Jurisdiction. ..............................................................................84  Section 11.08. No Adverse Interpretation of Other Agreements. ............................................84  Section 11.09. Successors. .......................................................................................................84  Section 11.10. Force Majeure. .................................................................................................85  Section 11.11. U.S.A. PATRIOT Act. ......................................................................................85  Section 11.12. Calculations......................................................................................................85  Section 11.13. Severability. .....................................................................................................85  Section 11.14. Counterparts. ....................................................................................................85  Section 11.15. Table of Contents, Headings, Etc. ....................................................................86  Section 11.16. Withholding Taxes. ..........................................................................................86  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    





 






  - 1 -     INDENTURE, dated as of March 1, 2022, between Peabody Energy Corporation, a  Delaware corporation, as issuer (the “Company”), and Wilmington Trust, National Association,  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 3.250% Convertible Senior Notes due 2028 (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.     “Bid Solicitation Agent” means the Person who is required to obtain bids for the Trading  Price in accordance with Section 5.01(C)(i)(2) and the definition of “Trading Price.” The initial  Bid Solicitation Agent on the Issue Date will be the Company; provided, however, that the  Company may appoint any other Person (including any of the Company’s Subsidiaries) to be the  Bid Solicitation Agent at any time after the Issue Date without prior notice to Holders.     “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 the  Federal Reserve Bank of New York is authorized or required by law or executive order to close  or be closed.     “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 5.09.     “Company” means the Person named as such in the first paragraph of this Indenture and,  





 






  - 2 -    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, subject to Section  5.03(C).     “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 50.3816 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.     “Daily Cash Amount” means, with respect to any VWAP Trading Day, the lesser of (A)  the applicable Daily Maximum Cash Amount; and (B) the Daily Conversion Value for such  VWAP Trading Day.     “Daily Conversion Value” means, with respect to any VWAP Trading Day, one-fortieth  (1/40th) of the product of (A) the Conversion Rate on such VWAP Trading Day; and (B) the  Daily VWAP per share of Common Stock on such VWAP Trading Day.     “Daily Maximum Cash Amount” means, with respect to the conversion of any Note,  the quotient obtained by dividing (A) the Specified Dollar Amount applicable to such conversion  by (B) forty (40).     “Daily Share Amount” means, with respect to any VWAP Trading Day, the quotient  obtained by dividing (A) the excess, if any, of the Daily Conversion Value for such VWAP  Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for  such VWAP Trading Day. For the avoidance of doubt, the Daily Share Amount will be zero for  such VWAP Trading Day if such Daily Conversion Value does not exceed such Daily Maximum  Cash Amount.     “Daily VWAP” means, for any VWAP Trading Day, the per share volume-weighted  average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on  Bloomberg page “BTU <EQUITY> AQR” (or, if such page is not available, its equivalent  successor page) in respect of the period from the scheduled open of trading until the scheduled  close of trading of the primary trading session on such VWAP Trading Day (or, if such volume- 





 






  - 3 -    weighted average price is unavailable, the market value of one share of Common Stock on such  VWAP Trading Day, determined, using a volume-weighted average price method, by a  nationally recognized independent investment banking firm selected by the Company, which  may include any of the Initial Purchasers). The Daily VWAP will be determined without regard  to after-hours trading or any other trading outside of the regular trading session.     “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 the De-Legending Deadline  Date determined as aforesaid would be 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.     “Default Settlement Method” means Combination Settlement with a Specified Dollar  Amount of $1,000 per $1,000 principal amount of Notes; provided, however, that (x) subject to  Section 5.03(A)(iii), the Company may, from time to time, change the Default Settlement  Method by sending notice of the new Default Settlement Method to the Holders, with a copy to  the Trustee and the Conversion Agent; and (y) the Default Settlement Method will be subject to  Section 5.03(A)(ii).     “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  other 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.     “Exempted Fundamental Change” means any Fundamental Change with respect to  which, in accordance with Section 4.02(H), the Company does not offer to repurchase any  Notes.     “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.  





 






  - 4 -       “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, or their respective employee  benefit plans, files any report with the SEC indicating that such person or group has become the  direct or indirect “beneficial owner” (as defined below) of shares of the Common Stock  representing more than fifty percent (50%) of the voting power of all of the Company’s Common  Stock;    (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 solely to one or more 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);    





 






  - 5 -    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.     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.     “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 Goldman Sachs & Co. LLC and Jefferies LLC.     “Interest Payment Date” means, with respect to a Note, each March 1 and September 1  of each year, commencing on September 1, 2022 (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.    





 






  - 6 -     “Issue Date” means March 1, 2022.     “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 each of at least three (3) nationally  recognized independent investment banking firms 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) 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); or (B) the sending of a  Redemption Notice pursuant to Section 4.03(F); provided, however, that, subject to Section  4.03(I), the sending of a Redemption Notice for less than all of the outstanding Notes will  constitute a Make-Whole Fundamental Change only with respect to the Notes called for  Redemption pursuant to such Redemption Notice and not with respect to any other Notes.     “Make-Whole Fundamental Change Conversion Period” has the following meaning:   (A) in the case of a Make-Whole Fundamental Change pursuant to clause (A) of the  definition thereof, the period from, and including, the Make-Whole Fundamental Change  Effective Date of such Make-Whole Fundamental Change to, and including, the thirty fifth  (35th) Trading Day after such Make-Whole Fundamental Change Effective Date (or, if such  Make-Whole Fundamental Change also constitutes a Fundamental Change (other than an  Exempted Fundamental Change), to, but excluding, the related Fundamental Change Repurchase  Date); and     (B) in the case of a Make-Whole Fundamental Change pursuant to clause (B) of the  definition thereof, the period from, and including, the Redemption Notice Date for the related  





 






  - 7 -    Redemption to, and including, the second (2nd) Business Day immediately before the related  Redemption Date;    provided, however, that if the Conversion Date for the conversion of a Note that has been called  (or deemed, pursuant to Section 4.03(I), to be called) for Redemption occurs during the Make- Whole Fundamental Change Conversion Period for both a Make-Whole Fundamental Change  occurring pursuant to clause (A) of the definition of “Make-Whole Fundamental Change” and a  Make-Whole Fundamental Change resulting from such Redemption pursuant to clause (B) of  such definition, then, notwithstanding anything to the contrary in Section 5.07, solely for  purposes of such conversion, (x) such Conversion Date will be deemed to occur solely during the  Make-Whole Fundamental Change Conversion Period for the Make-Whole Fundamental Change  with the earlier Make-Whole Fundamental Change Effective Date; and (y) the Make-Whole  Fundamental Change with the later Make-Whole Fundamental Change Effective Date will be  deemed not to have occurred.     “Make-Whole Fundamental Change Effective Date” means (A) with respect to a  Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the date on  which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with respect  to a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the  applicable Redemption Notice 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 March 1, 2028.     “Note Agent” means any Registrar, Paying Agent or Conversion Agent.     “Notes” means the 3.250% Convertible Senior Notes due 2028 issued by the Company  pursuant to this Indenture.    “Observation Period” means, with respect to any Note to be converted, (A) subject to clause  (B) below, if the Conversion Date for such Note occurs on or before September 1, 2027, the forty  (40) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP  Trading Day immediately after such Conversion Date; (B) if such Conversion Date occurs on or  after the date the Company has sent a Redemption Notice calling all or any Notes for  Redemption pursuant to Section 4.03(F) and on or before the second (2nd) Business Day before  the related Redemption Date, the forty (40) consecutive VWAP Trading Days beginning on, and  including, the forty first (41st) Scheduled Trading Day immediately before such Redemption  Date; and (C) subject to clause (B) above, if such Conversion Date occurs after September 1,  2027, the forty (40) consecutive VWAP Trading Days beginning on, and including, the forty first  





 






  - 8 -    (41st) forty first (41st) Scheduled Trading Day immediately before the Maturity Date.     “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 Chief Accounting Officer, the Secretary, any Senior Vice-President 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 February 24,  2022, between the Company and the Initial Purchasers.     “Redemption” means the repurchase of any Note by the Company pursuant to Section  4.03.     “Redemption Date” means the date fixed, pursuant to Section 4.03(D), for the  settlement of the repurchase of any Notes by the Company pursuant to a Redemption.     “Redemption Notice Date” means, with respect to a Redemption, the date on which the  Company sends the Redemption Notice for such Redemption pursuant to Section 4.03(F).     “Redemption Price” means the cash price payable by the Company to redeem any Note  upon its Redemption, calculated pursuant to Section 4.03(E).     “Regular Record Date” has the following meaning with respect to an Interest Payment  Date: (A) if such Interest Payment Date occurs on March 1, the immediately preceding February  15; and (B) if such Interest Payment Date occurs on September 1, the immediately preceding  August 15, regardless, in each case, of whether such February 15 or August 15 is a Business  Day.  





 






  - 9 -       “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 department 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 with direct responsibility  for the administration of this Indenture; and (B) with respect to a particular corporate trust matter  relating to this Indenture, any other officer to whom such matter is referred because of his or her  knowledge of, and familiarity with, the particular subject.     “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.     “Settlement Method” means Cash Settlement, Physical Settlement or Combination  Settlement.     “Significant Subsidiary” means, with respect to any Person, any Subsidiary of such  Person that constitutes, or any group of Subsidiaries of such Person that, in the aggregate, would  constitute, a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the  Exchange Act) of such Person.    





 






  - 10 -     “Special Interest” means any interest that accrues on any Note pursuant to Section 7.03.     “Specified Dollar Amount” means, with respect to the conversion of a Note to which  Combination Settlement applies, the maximum cash amount per $1,000 principal amount of such  Note deliverable upon such conversion (excluding cash in lieu of any fractional share of  Common Stock).     “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 Make-Whole Fundamental Change Effective Date of such Make- Whole Fundamental Change.     “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.     “Trading Price” of the Notes on any Trading Day means the average of the secondary  market bid quotations, expressed as a cash amount per $1,000 principal amount of Notes,  obtained by the Bid Solicitation Agent for five million dollars ($5,000,000) (or such lesser  amount as may then be outstanding) in principal amount of Notes at approximately 3:30 p.m.,  New York City time, on such Trading Day from three (3) nationally recognized independent  securities dealers selected by the Company, which may include any of the Initial Purchasers;  





 






  - 11 -    provided, however, that, if three (3) such bids cannot reasonably be obtained by the Bid  Solicitation Agent but two (2) such bids are obtained, then the average of the two (2) bids will be  used, and if only one (1) such bid can reasonably be obtained by the Bid Solicitation Agent, then  that one (1) bid will be used. If, on any Trading Day, (A) the Bid Solicitation Agent cannot  reasonably obtain at least one (1) bid for five million dollars ($5,000,000) (or such lesser amount  as may then be outstanding) in principal amount of Notes from a nationally recognized  independent securities dealer; (B) the Company is not acting as the Bid Solicitation Agent and  the Company fails to instruct the Bid Solicitation Agent to obtain bids when required; or (C) the  Bid Solicitation Agent fails to solicit bids when required, then, in each case, the Trading Price  per $1,000 principal amount of Notes on such Trading Day will be deemed to be less than ninety  eight percent (98%) of the product of the Last Reported Sale Price per share of Common Stock  on such Trading Day and the Conversion Rate on such Trading 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.     “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.     “VWAP Market Disruption Event” means, with respect to any date, (A) the failure by  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, the principal other market on which the Common Stock is then traded, to open for  trading during its regular trading session on such date; or (B) the occurrence or existence, for  more than one half hour period in the aggregate, of any suspension or limitation imposed on  





 






  - 12 -    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, and such suspension or limitation occurs or exists at any time before 1:00 p.m.,  New York City time, on such date.     “VWAP Trading Day” means a day on which (A) there is no VWAP Market Disruption  Event; and (B) 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. If the Common Stock is not so listed or traded, then  “VWAP Trading Day” means a Business Day.     “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)  “Cash Settlement” ............................................................................................................... 5.03(A)  “Combination Settlement” ................................................................................................. 5.03(A)  “Common Stock Change Event”........................................................................................ 5.09(A)  “Conversion Agent” ............................................................................................................ 2.06(A)  “Conversion Consideration” .............................................................................................. 5.03(B)  “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)  “Measurement Period” ...............................................................................................5.01(C)(i)(2)  “Paying Agent” .................................................................................................................... 2.06(A)  “Physical Settlement”.......................................................................................................... 5.03(A)  “Redemption Notice” .......................................................................................................... 4.03(F)  “Reference Property” .......................................................................................................... 5.09(A)  “Reference Property Unit” ................................................................................................. 5.09(A)  “Register” ............................................................................................................................. 2.06(B)  “Registrar” ........................................................................................................................... 2.06(A)  “Reporting Event of Default” ............................................................................................. 7.03(A)  “Specified Courts” ...................................................................................................................11.07  





 






  - 13 -    “Spin-Off” ................................................................................................................. 5.05(A)(iii)(2)  “Spin-Off Valuation Period” ................................................................................... 5.05(A)(iii)(2)  “Stated Interest” .................................................................................................................. 2.05(A)  “Successor Entity” ............................................................................................................... 6.01(A)  “Successor Person” .............................................................................................................. 5.09(A)  “Tender/Exchange Offer Valuation Period” ............................................................... 5.05(A)(v)  “Trading Price Condition” .........................................................................................5.01(C)(i)(2)    Section 1.03. RULES OF CONSTRUCTION.   For purposes of this Indenture:  (A) “or” is not exclusive;  (B) “including” means “including without limitation”;  (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;  (J) the term “interest,” when used with respect to a Note, includes any Default  Interest, Additional Interest and Special Interest, unless the context requires otherwise; and  (K) unless otherwise provided in this Indenture or in any Note, the words “execute”,  “execution”, “signed”, and “signature” and words of similar import used in or related to any  document to be signed in connection with this Indenture, any Note or any of the transactions  contemplated hereby (including amendments, waivers, consents and other modifications) will be  deemed to include electronic signatures and the keeping of records in electronic form, each of  which will be of the same legal effect, validity or enforceability as a manually executed signature  





 






  - 14 -    in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as  provided for in any applicable law, including the Federal Electronic Signatures in Global and  National Commerce Act, the New York State Electronic Signatures and Records Act, and any  other similar state laws based on the Uniform Electronic Transactions Act; provided that,  notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree  to accept electronic signatures in any form or in any format unless expressly agreed to by the  Trustee pursuant to reasonable procedures approved by the Trustee.  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.    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, facsimile or other electronic 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.  





 






  - 15 -    (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 authenticating 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 three hundred  twenty million dollars ($320,000,000) 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. Without the consent of any Holder, the Company may, 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 purposes of federal income tax  or federal securities laws or, if applicable, the Depositary Procedures, then such additional Notes  will be identified by a separate CUSIP number or by no CUSIP number.  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, Redemption on a Redemption 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, Redemption on a Redemption Date  





 






  - 16 -    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  3.250% (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), 4.03(E) 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.  (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  





 






  - 17 -    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. Notwithstanding anything to the contrary in this  Section 2.06(A), each of the Registrar, Paying Agent and Conversion Agent with respect to any  Global Note must at all times be a Person that is eligible to act in that capacity under the  Depositary Procedures.  (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, Redemption 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.  (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  





 






  - 18 -    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 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, then 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).  (B) 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(B)(ii)), including pursuant to Section 2.10(B),  2.10(B)(iii)(1), 2.11 or 2.13, then 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.  





 






  - 19 -    (C) 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.  (D) Acknowledgment 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  acknowledgment of, and agreement to comply with, the restrictions set forth in such legend.  (E) 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(E), 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) Generally. 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.  (ii) Transferred and Exchanged Notes Remain Valid Obligations of the  Company. 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) No Services Charge; Transfer Taxes. 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 Section 2.11, 2.17 or 8.05 not  involving any transfer.  (iv) Transfers and Exchanges Must Be in Authorized Denominations.  





 






  - 20 -    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) Trustee’s Disclaimer. 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) Legends. Each Note issued upon transfer of, or in exchange for, another  Note will bear each legend, if any, required by Section 2.09.  (vii) Settlement of Transfers and Exchanges. 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) Interpretation. 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 Physical Note is identified by a “restricted” CUSIP number, an exchange effected for  the sole purpose of causing such Global Note or Physical Note to be identified by an  “unrestricted” CUSIP number.  (B) Transfers and Exchanges of Global Notes.  (i) Certain Restrictions. 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:  (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  





 






  - 21 -    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) Effecting Transfers and Exchanges. 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, then 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 (x)  are in Authorized Denominations and have an aggregate principal amount equal  to the principal amount of such Global Note to be so exchanged; (y) are registered  in such name(s) as the Depositary specifies (or as otherwise determined pursuant  to customary procedures); and (z) bear each legend, if any, required by Section  2.09.  (iii) Compliance with Depositary Procedures.   (1) Each transfer or exchange of a beneficial interest in any Global  Note will be made in accordance with the Depositary Procedures.  (2) Neither the Trustee nor any Note Agent will have any  responsibility for any action taken or not taken by the Depositary.  (3) The Trustee will have no responsibility or obligation to any  beneficial owner of a Global Note or a Depositary Participant or other Person  with respect to the accuracy of the records of the Depositary or its nominee or of  





 






  - 22 -    any participant or member thereof with respect to any ownership interest in the  Notes or with respect to the delivery to any participant, member, beneficial owner  or other Person (other than the Depositary) of any notice (including any  Redemption Notice) or the payment of any amount, under or with respect to such  Notes. The rights of beneficial owners in any Global Note will be exercised only  through the Depositary subject to the Depositary Procedures. The Trustee may  rely and shall be fully protected in relying upon information furnished by the  Depositary with respect to its members, participants and any beneficial owners.  (C) Transfers and Exchanges of Physical Notes.  (i) Requirements for Transfers and Exchanges. 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) Effecting Transfers and Exchanges. 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 so 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 so  transferred or exchanged; (y) are registered in the name of such Holder; and (z)  bear each legend, if any, required by Section 2.09;  





 






  - 23 -    (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 that is to be so  transferred but that is not effected by notation as provided above; and (y)  bear each legend, if any, required by Section 2.09; and  (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  





 






  - 24 -    (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 or  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 or 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.  (E) Transfers of Notes Subject to Redemption, 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; (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; or (iii) has been selected for Redemption  pursuant to a Redemption Notice, except to the extent that any portion of such Note is not subject  to Redemption or the Company fails to pay the applicable Redemption Price when due.  Section 2.11. EXCHANGE AND CANCELLATION OF NOTES TO BE CONVERTED OR TO BE  REPURCHASED PURSUANT TO A REPURCHASE UPON FUNDAMENTAL CHANGE OR  REDEMPTION.  (A) Partial Conversions of Physical Notes and Partial Repurchases of Physical Notes  Pursuant to a Repurchase Upon Fundamental Change or Redemption. 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 or Redemption, then, as soon as reasonably practicable  after such Physical Note is surrendered for such conversion, Redemption or repurchase, as  applicable, the Company will cause such Physical Note to be exchanged, pursuant and subject to  Section 2.10(B)(iii)(1), 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, redeemed 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, redeemed or repurchased, as applicable, which Physical Note will be  converted, redeemed 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, Redemption or repurchase, as  applicable, is deemed to cease to be outstanding pursuant to Section 2.18.  (B) Cancellation of Notes that Are Converted and Notes that Are Repurchased  Pursuant to a Repurchase Upon Fundamental Change or Redemption.  





 






  - 25 -    (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 or Redemption, 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, Redemption or repurchase, as applicable, 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, redeemed or repurchased, as applicable;  (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 or Redemption, 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, redeemed 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).  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.    





 






  - 26 -    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.    Section 2.15. CANCELLATION.   Without limiting the generality of Section 3.08, the Company 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 Sections 3.08 and 2.18, 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 a Responsible  





 






  - 27 -    Officer of 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 (including upon conversion) 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.  (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 Called for Redemption or Subject to Repurchase. If, on  a Redemption Date, a Fundamental Change Repurchase Date or the Maturity Date, the Paying  Agent holds money sufficient to pay the aggregate Redemption Price, 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 redeemed or 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 Section 4.02(D), 4.03(E) 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 Redemption Price, 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(B) 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) or Section 5.08.  





 






  - 28 -    (E) Cessation of Accrual of Interest. Except as provided in Section 4.02(D), 4.03(E)  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.   Without limiting the generality of Sections 2.15 and 3.08, the Company may, from time  to time, repurchase Notes in open market purchases or in negotiated transactions without  delivering prior notice to Holders.     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.    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 and Redemption 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 11:00 A.M., New York City time, on each Redemption  Date, 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 Company will provide  





 






  - 29 -    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 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 (as to which  the Trustee is entitled to conclusively rely on an Officer’s Certificate).  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.    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  





 






  - 30 -    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.  Section 3.05. COMPLIANCE AND DEFAULT CERTIFICATES.  (A) Annual Compliance Certificate. Within ninety (90) days after December 31, 2022  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, within thirty (30) days after its first occurrence, deliver an Officer’s Certificate to the  Trustee describing the same and what action the Company is taking or proposes to take with  respect thereto; provided, however, that such Officer’s Certificate will not be required if such  Default or Event or Default has been cured or waived before the date the Company is required to  deliver such notice.   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.    





 






  - 31 -    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.    Section 3.08. 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 Affiliates from acquiring any Note (or  any beneficial interest therein).     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 AND REDEMPTION  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  





 






  - 32 -    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 the first sentence of 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).  (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 100% of 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 effective date of a Fundamental Change, the Company will send to each Holder, the Trustee  and the Paying Agent a notice of such Fundamental Change (a “Fundamental Change Notice”).  Substantially contemporaneously, the Company will 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.  





 






  - 33 -     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 the  first sentence of Section 4.02(D));  (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.     At the Company’s request, the Trustee will give the Fundamental Change Notice in the  Company’s name and at its expense, provided that the Company delivers to the Trustee, at least  five (5) Business Days in the case of Physical Notes and three (3) Business Days in the case of  Global Notes prior to the date of such Fundamental Change Notice (unless the Trustee agrees to  a shorter period), an Officer’s Certificate requesting that the Trustee give such notice and setting  forth the information to be stated in such notice as provided in this Section 4.02(E).    





 






  - 34 -    (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  (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  





 






  - 35 -    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 the first sentence of 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).\    (H) No Requirement to Conduct an Offer to Repurchase Notes if the Fundamental  Change Results in the Notes Becoming Convertible into an Amount of Cash Exceeding the  Fundamental Change Repurchase Price. Notwithstanding anything to the contrary in this  Section 4.02, the Company will not be required to send a Fundamental Change Notice or issue a  press release (or publish the same in a public medium in lieu thereof) pursuant to Section  4.02(E), or offer to repurchase or repurchase any Notes pursuant to this Section 4.02, in  connection with a Common Stock Change Event that constitutes a Fundamental Change pursuant  to clause (B)(ii) of the definition thereof (regardless of whether such Common Stock Change  Event also constitutes a Fundamental Change pursuant to any other clause of such definition), if  (i) the Reference Property of such Common Stock Change Event consists entirely of cash in U.S.  dollars; (ii) immediately after such Fundamental Change, the Notes become convertible,  pursuant to Section 5.09(A) and, if applicable, Section 5.07, into consideration that consists  solely of U.S. dollars in an amount per $1,000 aggregate principal amount of Notes that equals or  exceeds the Fundamental Change Repurchase Price per $1,000 aggregate principal amount of  





 






  - 36 -    Notes (calculated assuming that the same includes accrued and unpaid interest to, but excluding,  the latest possible Fundamental Change Repurchase Date for such Fundamental Change); and  (iii) the Company timely sends the notice relating to such Fundamental Change required  pursuant to Section 5.01(C)(i)(3)(b) and includes, in such notice, a statement that the Company  is relying on this Section 4.02(H).  (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 any securities law or regulations enacted after the Issue  Date conflict the Company’s obligations pursuant to this Section 4.02, the Company’s  compliance with such law or regulation will not be considered to be a Default of such obligations  by virtue of such conflict.  (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. RIGHT OF THE COMPANY TO REDEEM THE NOTES.  (A) No Right to Redeem Before March 1, 2025. The Company may not redeem the  Notes at its option at any time before March 1, 2025.  (B) Right to Redeem the Notes on or After March 1, 2025. Subject to the terms of this  Section 4.03, the Company has the right, at its election, to redeem all, or any portion in an  Authorized Denomination, of the Notes, at any time, and from time to time, on a Redemption  Date on or after March 1, 2025 and on or before the fortieth (40th) Scheduled Trading Day  immediately before the Maturity Date, for a cash purchase price equal to the Redemption Price,  but only if the Last Reported Sale Price per share of Common Stock exceeds one hundred and  thirty percent (130%) of the Conversion Price on (x) each of at least twenty (20) Trading Days  (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and  including, the Trading Day immediately before the Redemption Notice Date for such  Redemption; and (y) the Trading Day immediately before such Redemption Notice Date;  provided, however, that the Company will not be entitled to call less than all of the outstanding  Notes for Redemption unless the excess of the principal amount of Notes outstanding as of the  time the Company sends the related Redemption Notice over the aggregate principal amount of  Notes set forth in such Redemption Notice as being subject to such Redemption is at least  seventy-five million dollars ($75,000,000). For the avoidance of doubt, the calling of any Notes  for Redemption will constitute a Make-Whole Fundamental Change with respect to such Notes  pursuant to clause (B) of the definition thereof. If the Company elects to redeem less than all of  the outstanding Notes, then the Redemption will not constitute a Make-Whole Fundamental  Change with respect to the Notes not called for Redemption and Holders of the Notes not called  for Redemption will not be entitled to an increased Conversion Rate for such Notes as described  above on account of the Redemption, except to the limited extent described in Section 4.03(I).  





 






  - 37 -    (C) Redemption 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  Redemption Date (including as a result of the payment of the related Redemption Price, and any  related interest pursuant to the proviso to the first sentence of Section 4.03(E), on such  Redemption Date), then (i) the Company may not call for Redemption or otherwise redeem any  Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore  surrendered for such Redemption 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 interests in such Notes in accordance  with the Depositary Procedures).  (D) Redemption Date. The Redemption Date for any Redemption will be a Business  Day of the Company’s choosing that is no more than sixty-five (65), nor less than forty-five (45),  Scheduled Trading Days after the Redemption Notice Date for such Redemption.  (E) Redemption Price. The Redemption Price for any Note called for Redemption is  an amount in cash equal to 100% of the principal amount of such Note plus accrued and unpaid  interest on such Note to, but excluding, the Redemption Date for such Redemption; provided,  however, that if such Redemption 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 Redemption, 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  Redemption Date is before such Interest Payment Date); and (ii) the Redemption Price will not  include accrued and unpaid interest on such Note to, but excluding, such Redemption 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 Redemption 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 Redemption Price will include interest on Notes to be redeemed from, and including,  such Interest Payment Date.  (F) Redemption Notice. To call any Notes for Redemption, the Company must (x)  send to each Holder of such Notes, the Trustee and the Paying Agent a written notice of such  Redemption (a “Redemption 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 Redemption Notice or disclose  the same in a current report on Form 8-K (or any successor form) that is filed with, or furnished  to, the SEC.   Such Redemption Notice must state:  (i) that such Notes have been called for Redemption, briefly describing the  Company’s Redemption right under this Indenture;  





 






  - 38 -    (ii) the Redemption Date for such Redemption;  (iii) the Redemption Price per $1,000 principal amount of Notes for such  Redemption (and, if the Redemption 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 the first sentence of Section 4.03(E));  (iv) the name and address of the Paying Agent and the Conversion Agent;  (v) that Notes called for Redemption may be converted at any time before the  Close of Business on the second (2nd) Business Day immediately before the Redemption  Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date  in full, at any time until such time as the Company pays such Redemption Price in full);  (vi) the Conversion Rate in effect on the Redemption Notice Date for such  Redemption and a description and quantification of any adjustments to the Conversion  Rate that may result from such Redemption (including pursuant to Section 5.07);  (vii) the Settlement Method that will apply to all conversions of Notes with a  Conversion Date that occurs on or after such Redemption Notice Date and on or before  the second (2nd) Business Day before such Redemption Date;  (viii) that Notes called for Redemption must be delivered to the Paying Agent  (in the case of Physical Notes) or the Depositary Procedures must be complied with (in  the case of Global Notes) for the Holder thereof to be entitled to receive the Redemption  Price; and  (ix) the CUSIP and ISIN numbers, if any, of the Notes.   On or before the Redemption Notice Date, the Company will send a copy of such  Redemption Notice to the Trustee and the Paying Agent. At the Company’s request, the Trustee  will give the Redemption Notice in the Company’s name and at its expense, provided that the  Company delivers to the Trustee, at least five (5) Business Days in the case of Physical Notes  and three (3) Business Days in the case of Global Notes prior to the Redemption Notice Date  (unless the Trustee agrees to a shorter period), an Officer’s Certificate requesting that the Trustee  give such notice and setting forth the information to be stated in such notice as provided in this  Section 4.03(F).  (G) Selection and Conversion of Notes to Be Redeemed in Part.  (i) If less than all Notes then outstanding are called for Redemption, then the  Notes to be redeemed will be selected by the Company as follows: (1) in the case of  Global Notes, in accordance with the Depositary Procedures; and (2) in the case of  Physical Notes, pro rata, by lot or by such other method the Company considers fair and  appropriate.  (ii) If only a portion of a Note is subject to Redemption and such Note is  converted in part, then the converted portion of such Note will be deemed to be from the  





 






  - 39 -    portion of such Note that was subject to Redemption.  (H) Payment of the Redemption Price. Without limiting the Company’s obligation to  deposit the Redemption Price by the time proscribed by Section 3.01(B), the Company will  cause the Redemption Price for a Note (or portion thereof) subject to Redemption to be paid to  the Holder thereof on or before the applicable Redemption Date. For the avoidance of doubt,  interest payable pursuant to the proviso to the first sentence of Section 4.03(E) on any Note (or  portion thereof) subject to Redemption must be paid pursuant to such proviso.  (I) Special Provisions for Partial Calls. If the Company elects to redeem less than all  of the outstanding Notes pursuant to this Section 4.03, and the Holder of any Note, or any owner  of a beneficial interest in any Global Note, is reasonably not able to determine, before the Close  of Business on the forty second (42nd) Scheduled Trading Day immediately before the  Redemption Date for such Redemption, whether such Note or beneficial interest, as applicable, is  to be redeemed pursuant to such Redemption, then such Holder or owner, as applicable, will be  entitled to convert such Note or beneficial interest, as applicable, at any time before the Close of  Business on the second (2nd) Business Day immediately before such Redemption Date, and each  such conversion will be deemed to be of a Note called for Redemption for purposes of this  Section 4.03 and Sections 5.01(C)(i)(4) and 5.07.  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.  (C) When Notes May Be Converted.  (i) Generally. Subject to Section 5.01(C)(ii), a Note may be converted only  in the following circumstances:  (1) Conversion upon Satisfaction of Common Stock Sale Price  Condition. A Holder may convert its Notes during any calendar quarter (and only  during such calendar quarter) commencing after the calendar quarter ending on  June 30, 2022, if the Last Reported Sale Price per share of Common Stock  exceeds one hundred and thirty percent (130%) of the Conversion Price for each  of at least twenty (20) Trading Days (whether or not consecutive) during the thirty  (30) consecutive Trading Days ending on, and including, the last Trading Day of  the immediately preceding calendar quarter.  (2) Conversion upon Satisfaction of Note Trading Price Condition. A  Holder may convert its Notes during the five (5) consecutive Business Days  





 






  - 40 -    immediately after any five (5) consecutive Trading Day period (such five (5)  consecutive Trading Day period, the “Measurement Period”) if the Trading  Price per $1,000 principal amount of Notes, as determined following a request by  a Holder in accordance with the procedures set forth below, for each Trading Day  of the Measurement Period was less than ninety eight percent (98%) of the  product of the Last Reported Sale Price per share of Common Stock on such  Trading Day and the Conversion Rate on such Trading Day. The condition set  forth in the preceding sentence is referred to in this Indenture as the “Trading  Price Condition.”  The Trading Price will be determined by the Bid Solicitation Agent pursuant to  this Section 5.01(C)(i)(2) and the definition of “Trading Price.” The Bid  Solicitation Agent (if not the Company) will have no obligation to determine the  Trading Price of the Notes unless the Company has requested such determination  in writing, and the Company will have no obligation to make such request (or  seek bids itself) unless a Holder of at least $2,000,000 aggregate principal amount  of Notes (or such lesser principal amount of Notes that may be then outstanding)  provides the Company with reasonable evidence that the Trading Price per $1,000  principal amount of Notes would be less than ninety eight percent (98%) of the  product of the Last Reported Sale Price per share of Common Stock and the  Conversion Rate. If a Holder provides such evidence, then the Company will (if  acting as Bid Solicitation Agent), or will instruct the Bid Solicitation Agent to,  determine the Trading Price of the Notes beginning on the next Trading Day and  on each successive Trading Day until the Trading Price per $1,000 principal  amount of Notes is greater than or equal to ninety eight percent (98%) of the  product of the Last Reported Sale Price per share of Common Stock on such  Trading Day and the Conversion Rate on such Trading Day. If the Trading Price  Condition has been met as set forth above, then the Company will notify the  Holders, the Trustee and the Conversion Agent of the same. If, on any Trading  Day after the Trading Price Condition has been met as set forth above, the  Trading Price per $1,000 principal amount of Notes is greater than or equal to  ninety eight percent (98%) of the product of the Last Reported Sale Price per  share of Common Stock on such Trading Day and the Conversion Rate on such  Trading Day, then the Company will notify the Holders, the Trustee and the  Conversion Agent of the same.    (3) Conversion Upon Specified Corporate Events.  (a) Certain Distributions. If the Company elects to:  (I) distribute, to all or substantially all holders of  Common Stock, any rights, options or warrants (other than rights  issued pursuant to a stockholder rights plan, so long as such rights  have not separated from the Common Stock and are not  exercisable until the occurrence of a triggering event, except that  such rights will be deemed to be distributed under this clause (I)  upon their separation from the Common Stock or upon the  





 






  - 41 -    occurrence of such triggering event) entitling them, 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  (determined in the manner set forth in the third paragraph of  Section 5.05(A)(ii)); or  (II) distribute, to all or substantially all holders of  Common Stock, assets or securities of the Company or rights to  purchase the Company’s securities, which distribution per share of  Common Stock has a value, as reasonably determined by the  Board of Directors, exceeding ten percent (10%) of the Last  Reported Sale Price per share of Common Stock on the Trading  Day immediately before the date such distribution is announced,  then, in either case, (x) the Company will send notice of such distribution,  and of the related right to convert Notes, to Holders, the Trustee and the  Conversion Agent at least forty-five (45) Scheduled Trading Days before  the Ex-Dividend Date for such distribution (or, if later in the case of any  such separation of rights issued pursuant to a stockholder rights plan or the  occurrence of any such triggering event under a stockholder rights plan, as  soon as reasonably practicable after the Company becomes aware that  such separation or triggering event has occurred or will occur); and (y)  once the Company has sent such notice, Holders may convert their Notes  at any time until the earlier of the Close of Business on the Business Day  immediately before such Ex-Dividend Date and the Company’s  announcement that such distribution will not take place; provided,  however, that the Notes will not become convertible pursuant to clause (y)  above (but the Company will be required to send notice of such  distribution pursuant to clause (x) above) on account of such distribution 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, in such  distribution 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 record date for such distribution;  and (ii) the aggregate principal amount (expressed in thousands) of Notes  held by such Holder on such record date.    (b) Certain Corporate Events. If a Fundamental Change,  Make-Whole Fundamental Change (other than a Make-Whole  Fundamental Change pursuant to clause (B) of the definition thereof) or  Common Stock Change Event occurs, then, in each case, Holders may  convert their Notes at any time from, and including, the effective date of  such transaction or event to, and including, the thirty fifth (35th) Trading  





 






  - 42 -    Day after such effective date (or, if such transaction or event also  constitutes a Fundamental Change (other than an Exempted Fundamental  Change), to, but excluding, the related Fundamental Change Repurchase  Date); provided, however, that if the Company does not provide the notice  referred to in the immediately following sentence by such effective date,  then the last day on which the Notes are convertible pursuant to this  sentence will be extended by the number of Business Days from, and  including, such effective date to, but excluding, the date the Company  provides such notice. No later than such effective date, the Company will  send notice to the Holders, the Trustee and the Conversion Agent of such  transaction or event, such effective date and the related right to convert  Notes.  (4) Conversion upon Redemption. If the Company calls any Note for  Redemption, then the Holder of such Note may convert such Note at any time  before the Close of Business on the second (2nd) Business Day immediately  before the related Redemption Date (or, if the Company fails to pay the  Redemption Price due on such Redemption Date in full, at any time until such  time as the Company pays such Redemption Price in full).  (5) Conversions During Free Convertibility Period. A Holder may  convert its Notes at any time from, and including, September 1, 2027 until the  Close of Business on the second (2nd) Scheduled Trading Day immediately  before the Maturity Date.  For the avoidance of doubt, the Notes may become convertible pursuant to any one or  more of the preceding sub-paragraphs of this Section 5.01(C)(i) and the Notes ceasing to  be convertible pursuant to a particular sub-paragraph of this Section 5.01(C)(i) will not  preclude the Notes from being convertible pursuant to any other sub-paragraph of this  Section 5.01(C)(i).    (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 second (2nd) Scheduled Trading Day immediately before the Maturity  Date;  (3) if the Company calls any Note for Redemption pursuant to Section  4.03, then the Holder of such Note may not convert such Note after the Close of  Business on the second (2nd) Business Day immediately before the applicable  Redemption Date, except to the extent the Company fails to pay the Redemption  Price for such Note in accordance with this Indenture; and  





 






  - 43 -    (4) 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 that is  convertible pursuant to Section 5.01(C), 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 that is  convertible pursuant to Section 5.01(C), 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) 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(B) or 5.02(D), upon such conversion) 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 (i) the Conversion Date for such conversion,  in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period  for such conversion, in the case of Combination Settlement.  (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  





 






  - 44 -    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 (v) if  the Company has specified a Redemption Date that is after such Regular Record Date and on or  before the second (2nd) Business Day immediately after such Interest Payment Date; (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 or interest that has accrued on any overdue interest. 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 a Redemption Date or the Maturity Date, then the Company will pay, as provided above,  the interest that would have accrued on such Note to, but excluding, the Redemption Date or the  Maturity Date regardless of whether such Note has been converted after such Regular Record  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 or delivery 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 (and, in any event, no later than  the date the Conversion Agent receives such Note or notice) 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) Settlement Method. Upon the conversion of any Note, the Company will settle  such conversion by paying or delivering, as applicable and as provided in this Article 5, either  (x) shares of Common Stock, together, if applicable, with cash in lieu of fractional shares as  provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely cash as provided in  Section 5.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares of  Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in  Section 5.03(B)(i)(3) (a “Combination Settlement”).  





 






  - 45 -    (i) The Company’s Right to Elect Settlement Method. The Company will have  the right to elect the Settlement Method applicable to any conversion of a Note; provided,  however, that:  (1) subject to clause (3) below, all conversions of Notes with a  Conversion Date that occurs on or after September 1, 2027 will be settled using  the same Settlement Method, and the Company will send notice of such  Settlement Method to Holders, the Trustee and the Conversion Agent no later  than the Open of Business on September 1, 2027;  (2) subject to clause (3) below, if the Company elects a Settlement  Method with respect to the conversion of any Note whose Conversion Date occurs  before September 1, 2027, then the Company will send notice of such Settlement  Method to the Holder of such Note, the Trustee and the Conversion Agent no later  than the Close of Business on the Business Day immediately after such  Conversion Date;  (3) if any Notes are called for Redemption, then (a) the Company will  specify, in the related Redemption Notice (and, in the case of a Redemption of  less than all outstanding Notes, in a notice simultaneously sent to all Holders of  Notes not called for Redemption sent pursuant to Section 4.03(F), the Settlement  Method that will apply to all conversions of Notes with a Conversion Date that  occurs on or after the related Redemption Notice Date and on or before the second  (2nd) Business Day before the related Redemption Date; and (b) if such  Redemption Date occurs on or after September 1, 2027, then such Settlement  Method must be the same Settlement Method that, pursuant to clause (1) above,  applies to all conversions of Notes with a Conversion Date that occurs on or after  September 1, 2027;  (4) the Company will use the same Settlement Method for all  conversions of Notes with the same Conversion Date (and, for the avoidance of  doubt, the Company will not be obligated to use the same Settlement Method with  respect to conversions of Notes with different Conversion Dates, except as  provided in clause (1) or (3) above);  (5) if the Company does not timely elect a Settlement Method with  respect to the conversion of a Note, then the Company will be deemed to have  elected the Default Settlement Method (and, for the avoidance of doubt, the  failure to timely make such election will not constitute a Default or Event of  Default); and  (6) if the Company timely elects Combination Settlement with respect  to the conversion of a Note but does not timely notify the Holder of such Note of  the applicable Specified Dollar Amount (with a copy to the Trustee and the  Conversion Agent), then the Specified Dollar Amount for such conversion will be  deemed to be $1,000 per $1,000 principal amount of Notes (and, for the  avoidance of doubt, the failure to timely send such notification will not constitute  





 






  - 46 -    a Default or Event of Default).  (ii) The Company’s Right to Irrevocably Fix or Eliminate Settlement Methods.  The Company will have the right, exercisable at its election by sending notice of such  exercise to the Holders (with a copy to the Trustee and the Conversion Agent), to (1)  irrevocably fix the Settlement Method that will apply to all conversions of Notes with a  Conversion Date that occurs on or after the date such notice is sent to Holders; or (2)  irrevocably eliminate any one or more (but not all) Settlement Methods (including  eliminating Combination Settlement with a particular Specified Dollar Amount or range  of Specified Dollar Amounts) with respect to all conversions of Notes with a Conversion  Date that occurs on or after the date such notice is sent to Holders, provided, in each case,  that (w) the Settlement Method so elected pursuant to clause (1) above, or the Settlement  Method(s) remaining after any elimination pursuant to clause (2) above, as applicable,  must be a Settlement Method or Settlement Method(s), as applicable, that the Company is  then permitted to elect (for the avoidance of doubt, including pursuant to, and subject to,  the other provisions of this Section 5.03(A)); (x) no such irrevocable election will affect  any Settlement Method theretofore elected (or deemed to be elected) with respect to any  Note pursuant to this Indenture (including pursuant to Section 8.01(G) or this Section  5.03(A)); (y) upon any such irrevocable election pursuant to clause (1) above, the Default  Settlement Method will automatically be deemed to be set to the Settlement Method so  fixed; and (z) upon any such irrevocable election pursuant to clause (2) above, the  Company will, if needed, simultaneously change the Default Settlement Method to a  Settlement Method that is consistent with such irrevocable election. Such notice, if sent,  must set forth the applicable Settlement Method(s) so elected or eliminated, as applicable,  and the Default Settlement Method applicable immediately after such election, and  expressly state that the election is irrevocable and applicable to all conversions of Notes  with a Conversion Date that occurs on or after the date such notice is sent to Holders. For  the avoidance of doubt, such an irrevocable election, if made, will be effective without  the need to amend this Indenture or the Notes, including pursuant to Section 8.01(G) (it  being understood, however, that the Company may nonetheless choose to execute such an  amendment at its option).  (iii) Requirement to Publicly Disclose the Fixed or Default Settlement Method.  If the Company changes the Default Settlement Method pursuant to clause (x) of the  proviso to the definition of such term or irrevocably fixes the Settlement Method(s)  pursuant to Section 5.03(A)(ii), then the Company will either post the Default Settlement  Method or fixed Settlement Method(s), as applicable, on its website or disclose the same  in a Current Report on Form 8-K (or any successor form) that is filed with, or furnished  to, the SEC.  (B) Conversion Consideration.  (i) Generally. Subject to Sections 5.03(B)(ii), 5.03(B)(iii) and 5.09(A)(2), 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 as follows:  (1) if Physical Settlement applies to such conversion, a number of  





 






  - 47 -    shares of Common Stock equal to the Conversion Rate in effect on the  Conversion Date for such conversion;  (2) if Cash Settlement applies to such conversion, cash in an amount  equal to the sum of the Daily Conversion Values for each VWAP Trading Day in  the Observation Period for such conversion; or  (3) if Combination Settlement applies to such conversion,  consideration consisting of (a) a number of shares of Common Stock equal to the  sum of the Daily Share Amounts for each VWAP Trading Day in the Observation  Period for such conversion; and (b) an amount of cash equal to the sum of the  Daily Cash Amounts for each VWAP Trading Day in such Observation Period.  (ii) Cash in Lieu of Fractional Shares. If Physical Settlement or Combination  Settlement applies to the conversion of any Note and the number of shares of Common  Stock deliverable pursuant to Section 5.03(B)(i) upon such conversion 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) (x) the Daily VWAP on the Conversion Date for such conversion (or, if  such Conversion Date is not a VWAP Trading Day, the immediately preceding VWAP  Trading Day), in the case of Physical Settlement; or (y) the Daily VWAP on the last  VWAP Trading Day of the Observation Period for such conversion, in the case of  Combination Settlement.  (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.  (iv) Notice of Calculation of Conversion Consideration. If Cash Settlement or  Combination Settlement applies to the conversion of any Note, then the Company will  determine the Conversion Consideration due thereupon promptly following the last  VWAP Trading Day of the applicable Observation Period and will promptly thereafter  send notice to the Trustee and the Conversion Agent of the same and the calculation  thereof in reasonable detail. Neither the Trustee nor the Conversion Agent will have any  duty to make or verify any such determination.  (C) Delivery of the Conversion Consideration. Except as set forth in Sections 5.05(D)  and 5.09, the Company will pay or deliver, as applicable, the Conversion Consideration due upon  the conversion of any Note to the Holder as follows: (i) if Cash Settlement or Combination  Settlement applies to such conversion, on the second (2nd) Business Day immediately after the  last VWAP Trading Day of the Observation Period for such conversion; and (ii) if Physical  Settlement applies to such conversion, on the second (2nd) Business Day immediately after the  Conversion Date for such conversion; provided, however, that if Physical Settlement applies to  the conversion of any Note with a Conversion Date that is after the Regular Record Date  





 






  - 48 -    immediately before the Maturity Date, then, solely for purposes of such conversion, (x) the  Company will pay or deliver, as applicable, the Conversion Consideration due upon such  conversion on the Maturity Date (or, if the Maturity Date is not a Business Day, the next  Business Day); and (y) the Conversion Date will instead be deemed to be the second (2nd)  Business Day immediately before the Maturity Date.  (D) 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. In addition, subject to Section 5.02(D), if the Conversion  Consideration for a Note consists of both cash and shares of Common Stock, then accrued and  unpaid interest that is deemed to be paid therewith will be deemed to be paid first out of such  cash.  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 but unissued shares of Common Stock that are not reserved for  other purposes) a number of shares of Common Stock sufficient to permit the conversion of all  then-outstanding Notes, assuming (x) Physical Settlement will apply to such conversion; and (y)  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, if any, delivered  upon conversion of any Note will be a newly issued or treasury share (except that any  Conversion Share delivered by a designated financial institution pursuant to Section 5.08 need  not be a newly issued or treasury share) and will be duly authorized, 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.  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  





 






  - 49 -    Common Stock (in each case excluding an issuance solely pursuant to a Common Stock  Change Event, as to which Section 5.09 will apply), then the Conversion Rate will be  adjusted based on the following formula:  0 1 01 OS OS CRCR =     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 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.    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.    (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 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:  YOS XOS CRCR + + = 01   





 






  - 50 -      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 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 increase to  the Conversion Rate for such distribution been made on the basis of only the rights,  options or warrants, if any, actually distributed. In addition, 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.    For purposes of this Section 5.05(A)(ii) and Section 5.01(C)(i)(3)(a)(I), 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 Company in good faith.    (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  





 






  - 51 -    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:  (u) 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);    (v) 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);    (w) rights issued or otherwise distributed pursuant to a  stockholder rights plan, except to the extent provided in Section 5.05(F);    (x) 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);    (y) a distribution solely pursuant to a tender offer or exchange  offer for shares of Common Stock, as to which Section 5.05(A)(v) will  apply; and    (z) a distribution solely pursuant to a Common Stock Change  Event, as to which Section 5.09 will apply,    then the Conversion Rate will be increased based on the following formula:  FMVSP SP CRCR − = 01     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;    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 Company in good  





 






  - 52 -    faith), 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 record 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.    (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 (x) a  Common Stock Change Event, as to which Section 5.09 will apply; or (y) a  tender offer or exchange offer for shares of Common Stock, as to which Section  5.05(A)(v) 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:  SP SPFMV CRCR + = 01     where:  CR0 = the Conversion Rate in effect immediately before the Close of  Business on the last Trading Day of the Spin-Off Valuation Period  for such Spin-Off;    CR1 = the Conversion Rate in effect immediately after the Close of  Business on the last Trading Day of the Spin-Off Valuation Period;    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,  the Ex-Dividend Date for such Spin-Off (such average to be  





 






  - 53 -    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.    Notwithstanding anything to the contrary in this Section 5.05(A)(iii)(2), (i) if any  VWAP Trading Day of the Observation Period for a Note whose conversion will  be settled pursuant to Cash Settlement or Combination Settlement occurs during  the Spin-Off Valuation Period for such Spin-Off, then, solely for purposes of  determining the Conversion Rate for such VWAP Trading Day for such  conversion, such Spin-Off Valuation Period will be deemed to consist of the  Trading Days occurring in the period from, and including, the Ex-Dividend Date  for such Spin-Off to, and including, such VWAP Trading Day; and (ii) if the  Conversion Date for a Note whose conversion will be settled pursuant to Physical  Settlement occurs during the Spin-Off Valuation Period for such Spin-Off, then,  solely for purposes of determining the Conversion Consideration for such  conversion, such Spin-Off Valuation Period will be deemed to consist of the  Trading Days occurring in the period from, and including, the Ex-Dividend Date  for such Spin-Off to, and including, such Conversion Date.    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:  DSP SP CRCR − = 01     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;    





 






  - 54 -    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  record 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.    (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 or any successor rule thereto), and the value  (determined as of the Expiration Time by the Company in good faith) of the cash and  other consideration paid per share of Common Stock in such tender or exchange offer  exceeds the Last Reported Sale Price per share of Common Stock on 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), then the  Conversion Rate will be increased based on the following formula:  ( ) 0 1 01 OSSP OSSPAC CRCR  + =     where:  CR0 = the Conversion Rate in effect immediately before the Close of Business on  the last Trading Day of the Tender/Exchange Offer Valuation Period for  such tender or exchange offer;    CR1 = the Conversion Rate in effect immediately after the Close of Business on  the last Trading Day of the Tender/Exchange Offer Valuation Period;    AC = the aggregate value (determined as of the time (the “Expiration Time”)  such tender or exchange offer expires by the Company in good faith) of all  cash and other consideration paid for shares of Common Stock purchased  or exchanged in such tender or exchange offer;  





 






  - 55 -      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 Expiration Date;    provided, however, that the Conversion Rate will in no event be adjusted down pursuant  to this Section 5.05(A)(v), except to the extent provided in the immediately following  paragraph. Notwithstanding anything to the contrary in this Section 5.05(A)(v), (i) if any  VWAP Trading Day of the Observation Period for a Note whose conversion will be  settled pursuant to Cash Settlement or Combination Settlement occurs during the  Tender/Exchange Offer Valuation Period for such tender or exchange offer, then, solely  for purposes of determining the Conversion Rate for such VWAP Trading Day for such  conversion, such Tender/Exchange Offer Valuation Period will be deemed to consist of  the Trading Days occurring in the period from, and including, the Trading Day  immediately after the Expiration Date for such tender or exchange offer to, and including,  such VWAP Trading Day; and (ii) if the Conversion Date for a Note whose conversion  will be settled pursuant to Physical Settlement occurs during the Tender/Exchange Offer  Valuation Period for such tender or exchange offer, then, solely for purposes of  determining the Conversion Consideration for such conversion, such Tender/Exchange  Offer Valuation Period will be deemed to consist of the Trading Days occurring in the  period from, and including, the Trading Day immediately after the Expiration Date to,  and including, such Conversion Date.    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  





 






  - 56 -    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.  (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) Stock repurchases, including pursuant to structured or derivative  transactions or transactions pursuant to a stock repurchase program approved by  the Board of Directors or otherwise, in each case that are not tender offers or  exchange offers of the type referred to in Section 5.05(A)(v);  (2) 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;  (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 or program 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) a tender offer or exchange offer by any party other than a tender  offer or exchange offer by the Company or one or more of its Subsidiaries as  described in Section 5.05(A)(v);  (7) solely a change in the par value of the Common Stock; or  (8) 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  





 






  - 57 -    immediately upon the earliest of the following: (i) when all such deferred adjustments not  already given effect would result in a change of at least one percent (1%) to the Conversion Rate;  (ii) the Conversion Date of, or any VWAP Trading Day of an Observation Period for, any Note;  (iii) the date a Fundamental Change or Make-Whole Fundamental Change occurs; (iv) the date  the Company calls any Notes for Redemption; and (v) September 1, 2027.  (D) Adjustments Not Yet Effective. Notwithstanding anything to the contrary in this  Indenture or the Notes, if:  (i) a Note is to be converted pursuant to Physical Settlement or Combination  Settlement;  (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 (in the case of Physical Settlement)  or on or before any VWAP Trading Day in the Observation Period for such conversion  (in the case of Combination Settlement), but an adjustment to the Conversion Rate for  such event has not yet become effective as of such Conversion Date or VWAP Trading  Day, as applicable;  (iii) the Conversion Consideration due upon such conversion includes any  whole shares of Common Stock (in the case of Physical Settlement) or due in respect of  such VWAP Trading Day includes any whole or fractional shares of Common Stock (in  the case of Combination Settlement); 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 the case of Physical Settlement) or such VWAP  Trading Day (in the case of Combination Settlement). 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 pursuant to Physical Settlement or Combination  Settlement;  (iii) the Conversion Date for such conversion (in the case of Physical  Settlement) or any VWAP Trading Day in the Observation Period for such conversion (in  the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or  





 






  - 58 -    before the related record date;  (iv) the Conversion Consideration due upon such conversion includes any  whole shares of Common Stock (in the case of Physical Settlement) or due in respect of  such VWAP Trading Day includes any whole or fractional shares of Common Stock (in  the case of Combination Settlement), in each case 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) in the case of Physical Settlement, such Conversion Rate adjustment will not be given  effect for such conversion and 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, but 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; and (y) in the case of Combination  Settlement, the Conversion Rate adjustment relating to such Ex-Dividend Date will be made for  such conversion in respect of such VWAP Trading Day, but the shares of Common Stock  issuable with respect to such VWAP Trading Day based on such adjusted Conversion Rate will  not be 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 potential readjustment  in accordance with the last paragraph of Section 5.05(A)(iii)(1).  (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), or to calculate Daily VWAPs over an Observation Period, the Company  will make proportionate 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  





 






  - 59 -    date, as applicable, of such event occurs, at any time during such period or Observation Period,  as applicable.  (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.  (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.  





 






  - 60 -    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 Make-Whole Fundamental Change Effective Date and the Stock Price of such  Make-Whole Fundamental Change:   Stock Price  Make-Whole  Fundamental  Change  Effective Date $14.98 $16.00 $18.00 $19.85 $22.50 $25.80 $30.00 $50.00 $75.00 $100.00 $150.00 $200.00  March 1, 2022 ............. 16.3740 14.7975 12.3350 10.5985 8.7258 7.0616 5.6030 2.5986 1.3993 0.8683 0.3880 0.1773  March 1, 2023 ............. 16.3740 14.3831 11.7928 9.9929 8.0844 6.4260 5.0090 2.2406 1.1983 0.7430 0.3291 0.1467  March 1, 2024 ............. 16.3740 14.1350 11.3317 9.4186 7.4338 5.7589 4.3783 1.8710 0.9989 0.6221 0.2749 0.1202  March 1, 2025 ............. 16.3740 13.7806 10.6978 8.6423 6.5729 4.8977 3.5880 1.4502 0.7795 0.4893 0.2157 0.0920  March 1, 2026 ............. 16.3740 13.2356 9.7572 7.5149 5.3609 3.7360 2.5760 0.9830 0.5404 0.3428 0.1509 0.0619  March 1, 2027 ............. 16.3740 12.4225 8.2417 5.7053 3.5053 2.1016 1.2970 0.4946 0.2825 0.1809 0.0798 0.0311  March 1, 2028 ............. 16.3740 12.1181 5.1739 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000     If such Make-Whole Fundamental Change 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  Make-Whole Fundamental Change Effective Date is between two dates in the table  above, then the number of Additional Shares will be determined by 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 $14.98 (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 66.7556 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).     For the avoidance of doubt, but subject to Section 4.03(I), (x) the sending of a  Redemption Notice will constitute a Make-Whole Fundamental Change only with respect to the  Notes called for Redemption pursuant to such Redemption Notice, and not with respect to any  other Notes; and (y) the Conversion Rate applicable to the Notes not so called for Redemption  will not be subject to increase pursuant to this Section 5.07 on account of such Redemption  





 






  - 61 -    Notice.    (B) Adjustment of Stock Prices and Number of 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).  (C) Notice of the Occurrence of a Make-Whole Fundamental Change. The Company  will notify the Holders, the Trustee and the Conversion Agent of each Make-Whole Fundamental  Change (i) occurring pursuant to clause (A) of the definition thereof in accordance with Section  5.01(C)(i)(3)(b); and (ii) occurring pursuant to clause (B) of the definition thereof in accordance  with Section 4.03(F).  Section 5.08. EXCHANGE IN LIEU OF CONVERSION.   Notwithstanding anything to the contrary in this Article 5, and subject to the terms of this  Section 5.08, if a Note is submitted for conversion, the Company may elect to arrange to have  such Note exchanged in lieu of conversion by a financial institution designated by the Company.  To make such election, the Company must send notice of such election to the Holder of such  Note, the Trustee and the Conversion Agent before the Close of Business on the Business Day  immediately following the Conversion Date for such Note. If the Company has made such  election, then:  (A) no later than the Business Day immediately following such Conversion Date, the  Company must deliver (or cause the Conversion Agent to deliver) such Note, together with  delivery instructions for the Conversion Consideration due upon such conversion (including wire  instructions, if applicable), to a financial institution designated by the Company that has agreed  to deliver such Conversion Consideration in the manner and at the time the Company would  have had to deliver the same pursuant to this Article 5;  (B) if such Note is a Global Note, then (i) such designated institution will send written  confirmation to the Conversion Agent promptly after wiring the cash Conversion Consideration,  if any, and delivering any other Conversion Consideration, due upon such conversion to the  Holder of such Note; and (ii) the Conversion Agent will as soon as reasonably practicable  thereafter contact such Holder’s custodian with the Depositary to confirm receipt of the same;  and  (C) such Note will not cease to be outstanding by reason of such exchange in lieu of  conversion;  provided, however, that if such financial institution does not accept such Note or fails to timely  deliver such Conversion Consideration, then the Company will be responsible for delivering  such Conversion Consideration in the manner and at the time provided in this Article 5 as if the  Company had not elected to make an exchange in lieu of conversion.  





 






  - 62 -      Section 5.09. 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 and (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) other 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 any combination of the  foregoing (such an event, a “Common Stock Change Event,” and such other securities, cash or  property, 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, and the conditions to  any such conversion, 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; (II) for purposes of  Section 4.03, each reference to any number of shares of Common Stock in such Section  (or in any related definitions) will instead be deemed to be a reference to the same  number of Reference Property Units; and (III) for purposes of the definitions of  “Fundamental Change” and “Make-Whole Fundamental Change,” references to  “Common Stock” and the Company’s “common equity” will be deemed to refer to the  common equity, if any, forming part of such Reference Property;    (2) if such Reference Property Unit consists entirely of cash, then (I) each  conversion of any Note with a Conversion Date that occurs on or after the effective date  of such Common Stock Change Event will be settled entirely in cash in an amount, per  $1,000 principal amount of such Note being converted, equal to the product of (x) the  Conversion Rate in effect on such Conversion Date (including, for the avoidance of  doubt, any increase to such Conversion Rate pursuant to Section 5.07, if applicable); and  (y) the amount of cash constituting such Reference Property Unit; and (II) the Company  





 






  - 63 -    will settle each such conversion no later than the second (2nd) Business Day after the  relevant Conversion Date; and    (3) for these purposes, (I) the Daily VWAP of any Reference Property Unit or  portion thereof that consists of a class of common equity securities will be determined by  reference to the definition of “Daily VWAP,” substituting, if applicable, the Bloomberg  page for such class of securities in such definition; and (II) the Daily VWAP of any  Reference Property Unit or portion thereof that does not consist of a class of common  equity securities, and 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 and in  a commercially reasonable manner by the Company (or, in the case of cash denominated  in U.S. dollars, the face amount thereof).     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, the Trustee and the Conversion Agent 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 5.09; (y) provide for  subsequent adjustments to the Conversion Rate pursuant to Section 5.05(A) in a manner  consistent with this Section 5.09; and (z) contain such other provisions, if any, that the Company  reasonably determines are appropriate to preserve the economic interests of the Holders and to  give effect to the provisions of this Section 5.09(A). If the Reference Property includes shares of  stock or other securities or assets (other than cash) 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, if any, that 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 in the manner provided in Section 5.01(C)(i)(3)(b).  (C) Compliance Covenant. The Company will not become a party to any Common  Stock Change Event unless its terms are consistent with this Section 5.09.  Section 5.10. RESPONSIBILITY OF TRUSTEE.    The Trustee and any other Note Agent shall not at any time be under any duty or  responsibility to any Holder to determine the Conversion Rate (or any adjustment thereto) or  whether any facts exist that may require any adjustment (including any increase) of the  Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment  





 






  - 64 -    when made, or with respect to the method employed, or herein or in any supplemental indenture  provided to be employed, in making the same. The Trustee and any other Conversion Agent shall  not be accountable with respect to the validity or value (or the kind or amount) of any shares of  Common Stock, or of any securities, property or cash that may at any time be issued or delivered  upon the conversion of any Note; and the Trustee and any other Conversion Agent make no  representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be  responsible for any failure of the Company to issue, transfer or deliver any shares of Common  Stock or stock certificates or other securities or property or cash upon the surrender of any Note  for the purpose of conversion or to comply with any of the duties, responsibilities or covenants  of the Company contained in this Article. Without limiting the generality of the foregoing,  neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the  correctness of any provisions contained in any supplemental indenture entered into pursuant to  Section 5.09 relating either to the kind or amount of shares of stock or securities or property  (including cash) receivable by Holders upon the conversion of their Notes after any event  referred to in such Section 5.09 or to any adjustment to be made with respect thereto, but may  accept (without any independent investigation) as conclusive evidence of the correctness of any  such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the  Company shall be obligated to deliver to the Trustee prior to the execution of any such  supplemental indenture) with respect thereto.    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:  (i) the resulting, surviving or transferee Person either (x) is the Company or  (y) if not the Company, is a corporation (the “Successor Entity”) 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.  





 






  - 65 -    Section 6.02. SUCCESSOR ENTITY SUBSTITUTED.   At the effective time of any Business Combination Event that complies with Section  6.01, the Successor Entity (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 Entity 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.    Section 6.03. EXCLUSION FOR ASSET TRANSFERS WITH WHOLLY OWNED SUBSIDIARIES.   Notwithstanding anything to the contrary in this Article 6, this Article 6 will not apply to  any transfer of assets between or among the Company and any one or more of its Wholly Owned  Subsidiaries not effected by merger or consolidation.    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 Redemption  or Repurchase Upon Fundamental Change or otherwise) of the principal of, or the  Redemption Price or Fundamental Change Repurchase Price for, any Note;  (ii) a default for thirty (30) consecutive 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 5.01(C)(i)(3), if (in the case  of any notice other than a notice pursuant to Section 5.01(C)(i)(3)) such failure is not  cured within five (5) Business Days after its occurrence;  (iv) a default for a period of two (2) Business Days in the Company’s  obligation to convert a Note in accordance with Article 5 upon the exercise of the  conversion right with respect thereto;  (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”;  





 






  - 66 -    (vii) a default by the Company or any of the Company’s 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 seventy five million dollars ($75,000,000) (or its foreign currency  equivalent) in the aggregate of the Company or any of the Company’s 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 the Company’s Subsidiaries for the payment of at least seventy five million dollars  ($75,000,000) (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;  (4) makes a general assignment for the benefit of its creditors;  (5) takes any comparable action under any foreign Bankruptcy Law;  or  (6) generally is not paying its debts as they become due; or  





 






  - 67 -    (x) a court of competent jurisdiction enters an order or decree under any  Bankruptcy Law that either:  (1) is for relief against the 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.  





 






  - 68 -    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 three hundred and sixty five (365) calendar  days on which a Reporting Event of Default has occurred and is continuing, 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 three hundred and sixty sixth (366th)  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 three hundred and sixty sixth (366th)  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 eighty (180) 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  the related Event of Default first occurs (which, for the avoidance of doubt, will not commence  until the notice described in Section 7.01(A)(vi) has been given, and the related sixty (60) day  period described in Section 7.01(A)(vi) has passed), 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.  (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.  





 






  - 69 -    (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 and if requested,  provided 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 (it being understood  that the Trustee does not have an affirmative duty to determine whether any direction is  prejudicial to any Holder).    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 or  





 






  - 70 -    Redemption 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 written 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 or Redemption 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 or Redemption 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.    





 






  - 71 -    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, the other Note Agents and each of their 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 or Redemption  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.    





 






  - 72 -    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)  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  5.09 in connection with a Common Stock Change Event;  (G) irrevocably elect or eliminate any Settlement Method or Specified Dollar  Amount; provided, however, that no such election or elimination will affect any Settlement  Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to  Section 5.03(A);  (H) evidence or provide for the acceptance of the appointment, under this Indenture,  of a successor Trustee;  (I) conform the provisions of this Indenture and the Notes to the “Description of  Notes” section of the Company’s preliminary offering memorandum, dated February 23, 2022,  as supplemented by the related pricing term sheet, dated February 24, 2022;  





 






  - 73 -    (J) provide for or confirm the issuance of additional Notes pursuant to Section  2.03(B);  (K) 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  (L) 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.   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 Section 8.01(I).    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, 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 change the stated maturity, of any Note;  (ii) reduce the Redemption Price or Fundamental Change Repurchase Price  for any Note or change the times at which, or the circumstances under which, the Notes  may or will be redeemed or 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  





 






  - 74 -    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, Redemption 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.    (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  





 






  - 75 -    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).  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 entitled to receive, 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 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 Redemption Date, 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  





 






  - 76 -    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 discharge of this Indenture have  been satisfied;  provided, however, that Article 10 and Section 11.01 will survive such 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 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  





 






  - 77 -    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  (ii) in the absence of gross negligence or willful misconduct on its part, the  Trustee may conclusively rely, as to the truth of the statements and the correctness of the  opinions expressed therein, upon any certificates or opinions 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 gross 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  clauses (A), (B), (C) and (E) 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  





 






  - 78 -    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.  (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 and, if requested,  provided 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 (it being understood that  the Trustee does not have an affirmative duty to determine whether any direction is prejudicial to  any Holder).  (G) The Trustee will not be responsible or liable for any punitive, special, indirect,  incidental 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 permissive rights of the Trustee set forth in this Indenture will not be  construed as duties imposed on the Trustee.  (I) The Trustee will not be required to give any bond or surety in respect of the  execution or performance of this Indenture or otherwise.  (J) The Trustee will not be deemed to have notice of any Default or Event of Default  unless written notice of any event that is a Default or Event of Default is received by a  Responsible Officer pursuant to Section 11.01, and such notice references the Notes and this  Indenture and states that it is a “Notice of Default”  (K) The rights, privileges, protections, immunities and benefits given to the Trustee,  including its right to be indemnified, are extended to, and will be enforceable by, the Trustee in  each of its capacities under this Indenture.  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  





 






  - 79 -    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.    Section 10.05. NOTICE OF DEFAULTS.   If a Default or Event of Default occurs and is continuing and is actually known to a  Responsible Officer of 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 it is not actually known to the  Trustee at such time, promptly (and in any event within ten (10) Business Days) after it becomes  actually known 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 compensation for its  acceptance of this Indenture and services under this Indenture and the Notes as the Company and  the Trustee shall from time to time agree in writing. 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 and its directors, officers, employees  and agents against any and all losses, liabilities or expenses (including, without limitation,  attorney’s fees and 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 or expense is attributable to its gross negligence or  willful misconduct (as determined by a final non-appealable order of a court of competent  jurisdiction). The Trustee will promptly notify the Company of any claim 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). The Company will defend such claim, and the Trustee  will cooperate in such defense. The Trustee may have separate counsel, and the Company will  





 






  - 80 -    pay the reasonable fees and expenses of such counsel. 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.  (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 to the  Company 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 by so notifying the Trustee and the Company in writing  with thirty (30) days prior notice. The Company may remove the Trustee 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 the  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 any  court of competent jurisdiction for the appointment of a successor Trustee.  





 






  - 81 -    (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).  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), 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:  Peabody Energy Corporation  701 Market Street  St. Louis, Missouri 63101  Attention: Brian Cropper  Email: XXXX    With a copy to:  Chief Legal Officer  Email: XXXX    





 






  - 82 -    with a copy (which will not constitute notice) to:  Jones Day  77 West Wacker  Chicago, Illinois 60601  Attention: Edward B. Winslow, Esq.  Email: XXXX    If to the Trustee:  Wilmington Trust, National Association  1100 North Market Street  Wilmington, Delaware 19890  Attention: Peabody Notes Administrator     The Company or the Trustee, by notice to the other, may designate additional or different  addresses (including 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 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 provided that, any notice to the  Trustee or any Note Agent shall be deemed given upon actual receipt by the Trustee or such  Note Agent.     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  





 






  - 83 -    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.    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, 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, Paying Agent or Conversion Agent may make reasonable rules and set reasonable  requirements for its functions.    





 






  - 84 -    Section 11.05. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES 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.    





 






  - 85 -    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, any epidemic or pandemic, 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, the Daily Conversion Value, the Daily Cash Amount, the Daily  Share Amount, accrued interest on the Notes, any Additional Interest or Special 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 Company 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.    





 






  - 86 -    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.    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 or the non-occurrence 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]    





 






  [Signature Page to Indenture]   IN WITNESS WHEREOF, the parties to this Indenture have caused this Indenture to be  duly executed as of the date first written above.    PEABODY ENERGY CORPORATION  By: /s/ Brian Cropper   Name: Brian Cropper  Title: Vice President and Treasurer    WILMINGTON TRUST, NATIONAL ASSOCIATION  By: /s/ Arlene Thelwell   Name: Arlene Thelwell  Title: Vice President    





 






  A-1  US-DOCS\130264489.2  EXHIBIT A    FORM OF NOTE    [Insert Global Note Legend, if applicable]    [Insert Restricted Note Legend, if applicable]      PEABODY ENERGY CORPORATION    3.250% Convertible Senior Note due 2028    CUSIP No.: [___]* Certificate No. [___]  ISIN No.: [___]*     Peabody Energy Corporation, 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 March 1,  2028 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: March 1 and September 1 of each year, commencing on [date].    Regular Record Dates: February 15 and August 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-2  US-DOCS\130264489.2   IN WITNESS WHEREOF, Peabody Energy Corporation has caused this instrument to  be duly executed as of the date set forth below.    PEABODY ENERGY CORPORATION  Date:    By:    Name:   Title:     





 






  A-3  US-DOCS\130264489.2  TRUSTEE’S CERTIFICATE OF AUTHENTICATION    Wilmington Trust, National Association, as Trustee, certifies that this is one of the Notes  referred to in the within-mentioned Indenture.    Date:    By:     Authorized Signatory    





 






  A-4    Peabody Energy Corporation    3.250% Convertible Senior Note due 2028     This Note is one of a duly authorized issue of notes of Peabody Energy Corporation, a  Delaware corporation (the “Company”), designated as its 3.250% Convertible Senior Notes due  2028 (the “Notes”), all issued or to be issued pursuant to an indenture, dated as of March 1, 2022  (as the same may be amended from time to time, the “Indenture”), between the Company and  Wilmington Trust, National Association, as trustee (in such capacity, the “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 March 1, 2028, unless earlier repurchased,  redeemed 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. Right of the Company to Redeem the Notes. The Company will have the right  to redeem the Notes for cash in the manner, and subject to the terms, set forth in Section 4.03 of  the Indenture.    8. Conversion. The Holder of this Note may convert this Note into Conversion  





 






  A-5    Consideration in the manner, and subject to the terms, set forth in Article 5 of the Indenture.    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 Section 7.05 and  Article 8 of the Indenture.    12. No Personal Liability of Directors, Officers, Employees 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:  Peabody Energy Corporation  701 Market Street  St. Louis, Missouri 63101  Attention: Chief Financial Officer    





 






  A-6  US-DOCS\130264489.2  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-7    CONVERSION NOTICE    Peabody Energy Corporation    3.250% Convertible Senior Notes due 2028    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):   the entire principal amount of     $                     * 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-8    FUNDAMENTAL CHANGE REPURCHASE NOTICE    Peabody Energy Corporation    3.250% Convertible Senior Notes due 2028    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):   the entire principal amount of     $                     * 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-9    ASSIGNMENT FORM    Peabody Energy Corporation    3.250% Convertible Senior Notes due 2028    Subject to the terms of the Indenture, the undersigned Holder of the Notes identified below  assigns (check one):   the entire principal amount of     $                     * aggregate principal amount of    the Notes identified by CUSIP No.                       and Certificate No.                      , and all rights  thereunder, to:  Name:       Address:       Social security or tax id. #:       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      * Must be an Authorized Denomination.  





 






  A-10    TRANSFEROR ACKNOWLEDGMENT    If the within Note bears a Restricted Note Legend, the undersigned further certifies that (check  one):  1.  Such Transfer is being made to the Company or a Subsidiary of the Company.    2.  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.  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.  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-11    TRANSFEREE ACKNOWLEDGMENT    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:    





 






  B1-1    EXHIBIT B-1    FORM OF RESTRICTED NOTE LEGEND    THE OFFER AND SALE OF THIS NOTE AND THE SHARES OF COMMON STOCK, IF  ANY, 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 IS 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.    NO AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS  AMENDED) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS  DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OF THE COMPANY DURING  THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE  





 






  B1-2    ACQUIRE OR HOLD THIS NOTE OR A BENEFICIAL INTEREST HEREIN.*        * This paragraph and the immediately preceding two paragraphs 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.  





 






  B2-1    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 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.