Exhibit 4.6


 










 



 


EOS ENERGY ENTERPRISES, INC.







AND







WILMINGTON TRUST, NATIONAL ASSOCIATION,







as Trustee







INDENTURE







Dated as of [_____], 2022


 


5%/6% Convertible Senior PIK Toggle Notes due 2026







 







 



 






     


     


    







 


CROSS REFERENCE SHEET1


 


Between


 


Provisions of the Trust Indenture Act of 1939 and the Indenture to
be dated as of [___], 2022 between Eos ENERGY enterprises, inc. and Wilmington
Trust, NATIONAL ASSOCIATION, as Trustee:


 


	
    Trust Indenture
    Act Section
	 	
    Section of
    Indenture

	310(a)(1) and (2)	 	7.08
	310(a)(3) and (4)	 	Inapplicable
	310(a)(5)	 	7.08
	310(b)	 	7.09 and 7.10
	310(c)	 	Inapplicable
	311(a)	 	7.13
	311(b)	 	7.13
	311(c)	 	Inapplicable
	312(a)	 	5.01 and 5.02
	312(b)	 	5.02
	312(c)	 	5.02
	313(a)	 	7.14
	313(b)(1)	 	7.14
	313(b)(2)	 	7.14
	313(c)	 	17.03
	313(d)	 	7.14
	314(a)	 	4.06
	314(b)	 	Inapplicable
	314(c)(1) and (2)	 	17.05
	314(c)(3)	 	Inapplicable
	314(d)	 	Inapplicable
	314(e)	 	17.05
	314(f)	 	Inapplicable
	315(a), (c) and (d)	 	7.01
	315(b)	 	6.09
	315(e)	 	6.10
	316(a)	 	8.01
	316(a)(1)(A)	 	6.08
	316(a)(1)(B)	 	6.08
	316(a)(2)	 	Inapplicable
	316(b)	 	6.05
	316(c)	 	2.03
	317(a)(1) and (2)	 	6.03, 6.04 and 6.06
	317(b)	 	4.04
	318(a)	 	17.18
	318(b)	 	Inapplicable 
	318(c)	 	17.18



 





 






		1	This Cross-Reference Sheet is not part of the Indenture.



 






     


     


    

 


TABLE OF CONTENTS





 


	 	PAGE
	ARTICLE 1 

Definitions
	Section 1.01.  	Definitions	1
	Section 1.02.  	References to Interest	13
	Section 1.03. 	 Incorporation by Reference of Trust Indenture Act	13
	 	 	 
	ARTICLE 2

 Issue, Description, Execution, Registration and Exchange of Notes
	 
	Section 2.01.  	Designation and Amount	14
	Section 2.02. 	 Form of Notes	14
	Section 2.03.	 Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	15
	Section 2.04. 	 Execution, Authentication and Delivery of Notes	18
	Section 2.05. 	 Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	19
	Section 2.06. 	 Mutilated, Destroyed, Lost or Stolen Notes	24
	Section 2.07.  	Temporary Notes	25
	Section 2.08.  	Cancellation of Notes Paid, Converted, Etc	25
	Section 2.09. 	 CUSIP Numbers	26
	Section 2.10.  	Additional Notes; Repurchases	26
	 	 	 
	ARTICLE 3

 Satisfaction and Discharge
	 
	Section 3.01.  	Satisfaction and Discharge	26
	 	 	 
	ARTICLE 4 

Particular Covenants of the Company
	 
	Section 4.01.  	Payment of Principal and Interest	27
	Section 4.02.  	Maintenance of Office or Agency	27
	Section 4.03.  	Appointments to Fill Vacancies in Trustee’s Office	28
	Section 4.04. 	 Provisions as to Paying Agent	28
	Section 4.05.  	Rule 144A Information Requirement and Annual Reports	29
	Section 4.06.  	Reports	29
	Section 4.07. 	 Stay, Extension and Usury Laws	30
	Section 4.08. 	 Compliance Certificate; Statements as to Defaults	30



 






    i 


     


    

 


	ARTICLE 5 

Lists of Holders and Reports by the Company and the Trustee
	 
	Section 5.01.  	Lists of Holders	30
	Section 5.02. 	 Preservation and Disclosure of Lists	31
	 	 	 
	ARTICLE 6 

Defaults and Remedies
	 
	Section 6.01. 	 Events of Default	31
	Section 6.02. 	Acceleration; Rescission and Annulment	33
	Section 6.03.  	Payments of Notes on Default; Suit Therefor	34
	Section 6.04.  	Application of Monies Collected by Trustee	35
	Section 6.05.  	Proceedings by Holders	36
	Section 6.06.  	Proceedings by Trustee	37
	Section 6.07. 	 Remedies Cumulative and Continuing	37
	Section 6.08.  	Direction of Proceedings and Waiver of Defaults by Majority of Holders	37
	Section 6.09.  	Notice of Defaults	38
	Section 6.10. 	 Undertaking to Pay Costs	38
	 	 	 
	ARTICLE 7 

Concerning the Trustee
	 
	Section 7.01. 	 Duties and Responsibilities of Trustee	38
	Section 7.02. 	 Reliance on Documents, Opinions, Etc	40
	Section 7.03.  	No Responsibility for Recitals, Etc	41
	Section 7.04.  	Trustee, Paying Agents, Conversion Agents or Note Registrar May Own Notes	41
	Section 7.05.  	Monies and Shares of Common Stock to Be Held in Trust	41
	Section 7.06.  	Compensation and Expenses of Trustee	41
	Section 7.07. 	 Officer’s Certificate as Evidence	42
	Section 7.08.  	Eligibility of Trustee	42
	Section 7.09. 	 Resignation or Removal of Trustee	42
	Section 7.10.  	Acceptance by Successor Trustee	43
	Section 7.11.	  Succession by Merger, Etc	44
	Section 7.12.  	Trustee’s Application for Instructions from the Company	45
	Section 7.13.  	Limitation on Rights of Trustee as Creditor	45
	Section 7.14.  	Reports by the Trustee.	45
	 	 
	ARTICLE 8 

Concerning the Holders
	 
	Section 8.01.  	Action by Holders	45
	Section 8.02.  	Proof of Execution by Holders	46
	Section 8.03.  	Who Are Deemed Absolute Owners	46
	Section 8.04.  	Company-Owned Notes Disregarded	46
	Section 8.05.  	Revocation of Consents; Future Holders Bound	47



 






    ii 


     


    

 


	ARTICLE 9 

Holders’ Meetings
	 
	Section 9.01.  	Purpose of Meetings	47
	Section 9.02. 	 Call of Meetings by Trustee	48
	Section 9.03.  	Call of Meetings by Company or Holders	48
	Section 9.04.  	Qualifications for Voting	48
	Section 9.05. 	 Regulations	48
	Section 9.06. 	 Voting	49
	Section 9.07. 	 No Delay of Rights by Meeting	49
	 	 	 
	ARTICLE 10 

Supplemental Indentures
	 
	Section 10.01.  	Supplemental Indentures Without Consent of Holders	49
	Section 10.02. 	 Supplemental Indentures with Consent of Holders	50
	Section 10.03.  	Effect of Supplemental Indentures	51
	Section 10.04.  	Notation on Notes	51
	Section 10.05.  	Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee	51
	 	 	 
	ARTICLE 11 

Consolidation, Merger, Sale, Conveyance and Lease
	 
	Section 11.01.  	Company May Consolidate, Etc. on Certain Terms	52
	Section 11.02.  	Successor Corporation to Be Substituted	52
	Section 11.03.  	Delivery of Officer's Certificate and Opinion of Counsel to the Trustee	53
	 	 	 
	ARTICLE 12

 Immunity of Incorporators, Stockholders, Officers and Directors
	 
	Section 12.01. 	 Indenture and Notes Solely Corporate Obligations	53
	 	 	 
	ARTICLE 13

 [Intentionally Omitted]



 


	Article 14

 Conversion of Notes
	 
	Section 14.01. 	 Conversion Privilege	53
	Section 14.02.  	Conversion Procedure; Settlement Upon Conversion.	54
	Section 14.03. 	 Adjustment of Conversion Rate	59
	Section 14.04. 	Adjustments of Prices	69
	Section 14.05.  	Shares to Be Fully Paid	69
	Section 14.06.  	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.	69
	Section 14.07. 	 Certain Covenants	71
	Section 14.08.  	Responsibility of Trustee	72
	Section 14.09. 	 Stockholder Rights Plans	72
	Section 14.10.  	Limit on Issuance of Shares of Common Stock Upon Conversion	72
	Section 14.11.  	Exchange in Lieu of Conversion.	73



 






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	ARTICLE 15

 Repurchase of Notes at Option of Holders
	 
	Section 15.01.  	Intentionally Omitted.	74
	Section 15.02.  	Repurchase at Option of Holders Upon a Fundamental Change	74
	Section 15.03.  	Withdrawal of Fundamental Change Repurchase Notice	76
	Section 15.04. 	 Deposit of Fundamental Change Repurchase Price	77
	Section 15.05. 	Compliance with Applicable Laws Upon Repurchase of Notes	77
	 	 	 
	ARTICLE 16 

Optional Redemption
	 
	Section 16.01. 	Optional Redemption	78
	Section 16.02. 	Notice of Optional Redemption; Selection of Notes	78
	Section 16.03. 	Payment of Notes Called for Redemption	80
	Section 16.04. 	Restrictions on Redemption	80
	 	 	 
	ARTICLE 17 

Miscellaneous Provisions
	 
	Section 17.01.	 Provisions Binding on Company’s Successors	80
	Section 17.02.  	Official Acts by Successor Corporation	80
	Section 17.03.  	Addresses for Notices, Etc	81
	Section 17.04.  	Governing Law; Jurisdiction	81
	Section 17.05. 	 Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee	82
	Section 17.06.	 Legal Holidays	82
	Section 17.07.  	No Security Interest Created	82
	Section 17.08.  	Benefits of Indenture	82
	Section 17.09.  	Table of Contents, Headings, Etc	82
	Section 17.10.  	Authenticating Agent	83
	Section 17.11.  	Execution in Counterparts	84
	Section 17.12.  	Severability	84
	Section 17.13.  	Waiver of Jury Trial	84
	Section 17.14. 	 Force Majeure	84
	Section 17.15.  	Calculations	85
	Section 17.16. 	 USA PATRIOT Act	85
	Section 17.17. 	Withholding Taxes	85
	Section 17.18. 	Trust Indenture Act Controls.	85


 


EXHIBIT


	Exhibit A	Form of Note	A-1



 






    iv 


     


    










 


INDENTURE dated as of [_____], 2022 between EOS
ENERGY ENTERPRISES, INC., a Delaware corporation, as issuer (the “Company,” as more fully set forth in Section 1.01)
and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States
of America, as trustee (the “Trustee,” as more fully set forth in Section 1.01).


 


W I T N E S S E T H:


 


WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the issuance of its 5%/6% Convertible Senior PIK Toggle Notes due 2026 (the “Notes”), and
in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and


 


WHEREAS, the Form of Note, the certificate of authentication
to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental Change Repurchase Notice and the Form of Assignment
and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and


 


WHEREAS, all acts and things necessary to make
the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in
this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to its
terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects
been duly authorized.


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH:


 


That in order to declare the terms and conditions
upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:


 


Article
1

Definitions


 


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


 






     


     


    

 


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


 


“Agent Members” shall have the
meaning specified in Section 8.01.


 


“Applicable Withholding Agent”
shall have the meaning specified in Section 17.17.


 


“Board of Directors” means the
board of directors or equivalent body of the Company or a committee of such board or body duly authorized to act for it hereunder.


 


“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors,
and to be in full force and effect on the date of such certification, and delivered to the Trustee.


 


“Business Combination Event”
shall have the meaning specified in Section 11.01.


 


“Business Day” means, with respect
to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required
by law or executive order to close or be closed.


 


“Capital Stock” means, for any
entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however
designated) stock issued by that entity, but shall not include any debt securities convertible into or exchangeable for any securities
otherwise constituting Capital Stock pursuant to this definition.


 


“Capitalization Amount” means,
for any Interest PIK Date, an amount per Note equal to the interest accrued on the principal amount of such Note as of the immediately
preceding Interest Payment Date (or, if there is no immediately preceding Interest Payment Date, the interest accrued on the Initial Principal
Amount) and not paid in cash, calculated at the PIK Interest Rate on the principal amount of such Note for which interest is not paid
in cash for the period from, and including, such immediately preceding Interest Payment Date (or, if there is no immediately preceding
Interest Payment Date, from, and including, the Issue Date or such other date from which such Note bears interest as stated on such Note)
to, but excluding, such Interest PIK Date.


 






    2


     


    

 


“Capitalization Method” shall
have the meaning specified in Section 2.03(d)(i).


 


“Capitalized Principal Amount”
means, for any date, the principal amount per Note equal to the Initial Principal Amount of such Note, as increased on each Interest PIK
Date occurring on or prior to such date by the Capitalization Amount for such Interest PIK Date, if any. When the term “principal
amount” of any Note is used herein, such reference(s) shall be deemed to be reference(s) to the Capitalized Principal Amount of
such Note, unless the context otherwise requires.


 


“Cash Interest Rate” means 5.00%
per annum.


 


“Cash Method” shall have the
meaning specified in Section 2.03(d)(i).


 


“Cash Settlement” shall have
the meaning specified in Section 14.02(a).


 


“Clause A Distribution” shall
have the meaning specified in Section 14.03(c).


 


“Clause B Distribution” shall
have the meaning specified in Section 14.03(c).


 


“Clause C Distribution” shall
have the meaning specified in Section 14.03(c).


 


“close of business” means 5:00
p.m. (New York City time).


 


“Combination Settlement” shall
have the meaning specified in Section 14.02(a).


 


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


 


“Common Equity” of any Person
means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person
is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will
control the management or policies of such Person.


 


“Common Stock” means the common
stock of the Company, par value $0.0001 per share, at the date of this Indenture, subject to Section 14.06.


 


“Company” shall have the meaning
specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include its successors and assigns.


 


“Company Order” means a written
order of the Company, signed by any of its Officers.


 


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


 


“Conversion Consideration” shall
have the meaning specified in Section 14.11(a).


 


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


 


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


 






    3


     


    

 


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


 


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


 


“Corporate Trust Office” means
the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date
of this Indenture is located at 50 South Sixth Street, Suite 1290, Minneapolis, Minnesota 55402, Attention: EOS Energy Administrator,
or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate
trust office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the
Holders and the Company).


 


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


 


“Cut-off Date” means the 45th
Scheduled Trading Day immediately preceding the Maturity Date.


 


“Daily Conversion Value” means,
for each of the 40 consecutive Trading Days during the Observation Period, 2.5% of the product of (a) the Conversion Rate on such Trading
Day and (b) the Daily VWAP for such Trading Day.


 


“Daily Measurement Value” means
the Specified Dollar Amount (if any), divided by 40.


 


“Daily Settlement Amount,” for
each of the 40 consecutive Trading Days during the Observation Period, shall consist of:


 


(a) cash
in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and


 


(b) if
the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the
difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading
Day.


 


“Daily VWAP” means, for each
of the 40 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as displayed under
the heading “Bloomberg VWAP” on Bloomberg page “EOSE <equity> AQR” (or its equivalent successor if such
page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary
trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Common
Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking
firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard to after-hours
trading or any other trading outside of the regular trading session trading hours.


 






    4


     


    

 


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


 


“Default Settlement Method”
means, initially, Physical Settlement.


 


“Defaulted Amounts” means any
amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change Repurchase Price, principal and interest)
that are payable but are not punctually paid or duly provided for.


 


“Depositary” means, with respect
to each Global Note, the Person designated pursuant to Section 2.05(c) as the Depositary with respect to such Notes, until a successor
shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.


 


“Designated Financial Institution”
shall have the meaning specified in Section 14.11(a).


 


“Distributed Property” shall
have the meaning specified in Section 14.03(c).


 


“Effective
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market,
regular way, reflecting the relevant share split or share combination, as applicable.


 


“Event of Default” shall have
the meaning specified in Section 6.01.


 


“Ex-Dividend Date” means the
first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the
right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of Common Stock
on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.


 


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


 


“Exchange Election” shall have
the meaning specified in Section 14.11(a).


 


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


 


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


 


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


 


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


 






    5


     


    

 


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


 


(a) other
than as set forth in clause (b), a “person” or “group” within the meaning of Section 13(d) of the Exchange Act,
other than the Company, its direct or indirect Wholly Owned Subsidiaries, the employee benefit plans of the Company and its Wholly Owned
Subsidiaries and any Holder or an Affiliate thereof, files a Schedule TO (or any successor schedule, form or report) or any schedule,
form or report under the Exchange Act that discloses that such person or group has become the direct or indirect “beneficial owner,”
as defined in Rule 13d-3 under the Exchange Act, of the Common Stock representing more than 50% of the voting power of the Common Stock;


 


(b) the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than a change to par value or changes
resulting from a subdivision or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other
securities, other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock
will be converted into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a
series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to
any Person other than one or more of the Company’s direct or indirect Wholly Owned Subsidiaries; provided, however, that
a transaction described in clause (A) or (B) in which the holders of all classes of the Company’s Common Equity immediately prior
to such transaction own, directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving Person or
transferee or the parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately
prior to such transaction shall not be a Fundamental Change pursuant to this clause (b);


 


(c) the
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 or quoted on any of The New York Stock Exchange, The Nasdaq Global Market, The Nasdaq Global Select Market
or The Nasdaq Capital Market (or any of their respective successors).


 


If any transaction in which the Common Stock is
replaced by the common stock or other Common Equity of another entity occurs, following any related Fundamental Change Repurchase Date
(or, in the case of a transaction that would have been a Fundamental Change but for the proviso in clause (b) of this definition,
following the effective date of such transaction), references to the Company in this definition shall instead be references to such other
entity.


 






    6


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


“Governmental Approval” shall
have the meaning specified in Section 14.02(a)(vi).


 


“Governmental Entity” means
any court, administrative agency or commission or other governmental authority or instrumentality, whether federal, state, local or foreign,
and any applicable self-regulatory organization (including The Nasdaq Capital Market).


 


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


 


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


 


“Initial Principal Amount” of
any Note means the principal amount of such Note at the time of original issuance of such Note. For the avoidance of doubt, the “Initial
Principal Amount” of each minimum denomination of Notes on the Issue Date shall be $1.00.


 


“Interest Payment Date” means
each June 30 and December 30 of each year, beginning on June 30, 2022.


 






    7


     


    

 


“Interest PIK Date” means each
Interest Payment Date with respect to which the Company elects (or is deemed to have elected) to pay interest accrued on the Notes to,
but excluding, such Interest Payment Date by the Capitalization Method pursuant to Section 2.03(d) hereof.


 


“Issue Date” means [___], 2022.


 


“Last Reported Sale Price” of
the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in
composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded. If the Common
Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale
Price” shall be the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported
by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price”
shall be the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from a nationally recognized
independent investment banking firm selected by the Company for this purpose.


 


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


 


“Maturity Date” means June 30,
2026.


 


“Merger Event” shall have the
meaning specified in Section 14.06(a).


 


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


 


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


 


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


 


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


 


“Observation Period” with respect
to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs prior to the Cut-off
Date, the 40 consecutive Trading Days beginning on, and including, the third Trading Day immediately succeeding such Conversion Date;
(ii) if the relevant Conversion Date occurs on or after the date of the Company’s issuance of a Redemption Notice with respect to
the Notes pursuant to Section 16.02 and prior to the relevant Redemption Date, the 40 consecutive Trading Days beginning on, and including,
the 42nd Scheduled Trading Day immediately preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion
Date occurs on or after the Cut-off Date, the 40 consecutive Trading Days beginning on, and including, the 42nd Scheduled Trading Day
immediately preceding the Maturity Date.


 






    8


     


    

 


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


 


“Officer’s Certificate,”
when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by any Officer of the Company.
Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required by the provisions of such
Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal executive, financial or accounting
officer of the Company.


 


“open of business” means 9:00
a.m. (New York City time).


 


“Opinion of Counsel” means an
opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel acceptable to the Trustee,
that is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 17.05 if and to the extent required
by the provisions of such Section 17.05.


 


“Optional Redemption” shall
have the meaning specified in Section 16.01.


 


“outstanding,” when used with
reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered
by the Trustee under this Indenture, except:


 


(a) Notes
theretofore canceled by the Trustee or accepted by the Trustee for cancellation;


 


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


 


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


 






    9


     


    

 


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


 


(e) Notes
redeemed pursuant to Article 16; and


 


(f) Notes
repurchased by the Company pursuant to the penultimate sentence of Section 2.10.


 


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


 


“Person” means an individual,
a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated
organization or a government or an agency or a political subdivision thereof.


 


“Physical Notes” means permanent
certificated Notes in registered form issued in denominations of $1.00 principal amount and integral multiples thereof.


 


“Physical Settlement” shall
have the meaning specified in Section 14.02(a).


 


“PIK Interest” means any interest
paid pursuant to Section 2.03(d) by the Capitalization Method.


 


“PIK Interest Rate” means 6.00%
per annum.


 


“PIK Notes” shall have the meaning
specified in Section 2.03(d)(ii).


 


“PIK Payment” means the payment
of any PIK Interest on the Notes.


 


“Predecessor Note” of any particular
Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange for a mutilated, lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note that it replaces.


 


“Record Date” means, with respect
to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable security) have the
right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted
into any combination of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other
security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, by statute,
by contract or otherwise).


 


“Redemption Date” shall have
the meaning specified in Section 16.02(a).


 


“Redemption Notice” shall have
the meaning specified in Section 16.02(a).


 






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“Redemption Price” means, for
any Notes to be redeemed pursuant to Section 16.01, 100% of the Capitalized Principal Amount of such Notes, plus any accrued interest
that has not been paid or capitalized, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular
Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment
Date will be paid in cash at the Cash Interest Rate to Holders of record of such Notes as of the close of business on such Regular Record
Date (notwithstanding any prior election (or deemed election) by the Company to pay such interest pursuant to the Capitalization Method),
and the Redemption Price will be equal to 100% of the Capitalized Principal Amount of such Notes).


 


“Reference Property” shall have
the meaning specified in Section 14.06(a).


 


“Regular Record Date,” with
respect to any Interest Payment Date, means the June 15 or December 15 (whether or not such day is a Business Day) immediately preceding
the applicable June 30 or December 30 Interest Payment Date, respectively.


 


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


 


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


 


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


 


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


 


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


 


“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


“Settlement Amount” shall have
the meaning specified in Section 14.02(a)(iv).


 


“Settlement Method” means, with
respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been
elected) by the Company.


 


“Settlement Notice” shall have
the meaning specified in Section 14.02(a)(iii).


 






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“Significant Subsidiary” means
a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X
under the Exchange Act.


 


“Specified Dollar Amount” means
the maximum cash amount per $1,000 Capitalized Principal Amount of Notes to be received upon conversion as specified in the Settlement
Notice (or deemed specified as provided in Section 14.02(a)(iii)) related to any converted Notes.


 


“Spin-Off” shall have the meaning
specified in Section 14.03(c).


 


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


 


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


 


“Trading Day” means a day on
which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on The Nasdaq
Capital Market or, if the Common Stock (or such other security) is not then listed on The Nasdaq Capital Market, on the principal other
U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock
(or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which
the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or closing sale price
for such other security) is available on such securities exchange or market; provided that if the Common Stock (or such other security)
is not so listed or traded, “Trading Day” means a Business Day; and provided further that, for purposes of determining
amounts due upon conversion only, “Trading Day” means a day on which (x) there is no Market Disruption Event and (y)
trading in the Common Stock generally occurs on The Nasdaq Capital Market or, if the Common Stock is not then listed on The Nasdaq Capital
Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common
Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is
then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading, “Trading Day”
means a Business Day.


 


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


 


“Treasury Rate” means, with
respect to any Conversion Date, the yield to maturity of United States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior
to the date the Company settles its Conversion Obligation in respect of such Conversion Date (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly equal to the period from such Conversion Date to June 30,
2026; provided that if the period from such Conversion Date to June 30, 2026 is less than one year, the “Treasury Rate”
shall be the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year.


 






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“Trigger Event” shall have the
meaning specified in Section 14.03(c).


 


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


 


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


 


“unit of Reference Property”
shall have the meaning specified in Section 14.06(a).


 


“Valuation Period” shall have
the meaning specified in Section 14.03(c).


 


“Wholly Owned Subsidiary” means,
with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “more
than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”, the calculation
of which shall exclude nominal amounts of the voting power of shares of Capital Stock or other interests in the relevant Subsidiary not
held by such person to the extent required to satisfy local minority interest requirements outside of the United States.


 


Section 1.02. References to Interest. Unless
the context otherwise requires, any reference to accrued interest on, or in respect of, any Note that has not been paid or capitalized
in this Indenture shall be deemed to refer to the amount of such interest that would have accrued as of the relevant time at the applicable
Cash Interest Rate as if the Company had elected the Cash Method in respect of all of the relevant interest (whether or not the Company
actually elected the Cash Method and notwithstanding any prior election (or deemed election) by the Company to pay such interest pursuant
to the Capitalization Method).


 


Section 1.03. Incorporation by Reference of
Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference
in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:


 


“indenture securities” means the Notes.


 


“indenture security holder” means a
Holder.


 






    13


     


    

 


“indenture to be qualified” means this
Indenture.


 


“indenture trustee” or “institutional
trustee” means the Trustee.


 


“obligor” on the indenture securities
means the Company and any successor obligor upon the Notes.


 


All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule under the
Trust Indenture Act and not otherwise defined herein are used herein as so defined.


 


Article
2

Issue, Description, Execution, Registration and Exchange of Notes


 


Section 2.01. Designation and Amount. The
Notes shall be designated as the “5%/6% Convertible Senior PIK Toggle Notes due 2026.” The aggregate Initial Principal Amount
of Notes that may be authenticated and delivered under this Indenture is initially limited to $[102,900,000], subject to Section 2.10
and except for Notes authenticated and delivered upon the issuance of PIK Notes or registration or transfer of, or in exchange for, or
in lieu of other Notes to the extent expressly permitted hereunder.


 


Section 2.02. Form of Notes. The Notes and
the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective forms set forth in
Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of this Indenture.
To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. In the case of any conflict between the terms of the Notes and the terms of the Indenture, the
terms of the Indenture shall control.


 


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


 


Any of the Notes may have such letters, numbers
or other marks of identification and such notations, legends or endorsements as the Officer executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange
or automated quotation system on which the Notes may be listed or designated for issuance, or to conform to usage or to indicate any special
limitations or restrictions to which any particular Notes are subject.


 






    14


     


    

 


Each Global Note shall represent such principal
amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be increased or reduced to reflect PIK Interest, redemptions, repurchases, cancellations, conversions, transfers
or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon instructions
given by the Company or the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, and accrued interest on, a Global Note shall be made to the Holder of
such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment is provided for
herein.


 


Section 2.03. Date and Denomination of Notes;
Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without coupons in minimum denominations
of $1.00 principal amount and integral multiples thereof. PIK Interest on the Notes shall be paid in minimum denominations of $1.00 and
integral multiples thereof, rounded up to the nearest $1.00. Each Note shall be dated the date of its authentication and shall bear interest
from the date specified on the face of such Note. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed
of twelve 30-day months and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.


 


(b) The
Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record
Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. The Capitalized
Principal Amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company maintained
by the Company for such purposes in the continental United States of America, which shall initially be the Corporate Trust Office, or
by check mailed to the Holders of these Notes at their address as it appears in the Note Register or such other means as agreed between
the Company and such Holder, and (y) in the case of any Global Note, shall be payable by wire transfer of immediately available funds
to the account of the Depositary or its nominee. The Company shall pay, or cause the Paying Agent to pay, cash interest when due (i) on
any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to
the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate
principal amount of more than $5,000,000 (or such other amount as the Company shall determine in its discretion), either by check mailed
to each Holder or, upon application by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer
in immediately available funds to that Holder’s account within the United States if such Holder has provided the Company, the Trustee
or the Paying Agent (if other than the Trustee) with the requisite information necessary to make such wire transfer prior to the relevant
Regular Record Date, which application shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary
or (ii) on any Global Note by wire transfer of immediately available funds to the account of the Depositary or its nominee.


 






    15


     


    

 


(c) Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at
the Cash Interest Rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant
payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case,
as provided in clause (i) or (ii) below:


 


(i) The
Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor Notes)
are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on each Note
and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice, unless the
Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the payment of such Defaulted
Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment, and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such special
record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted
Amounts and the special record date therefor to be delivered to each Holder not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered, such Defaulted Amounts
shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business
on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).


 


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


 






    16


     


    

 


(d) 


 


(i) The
Company may, at its option, elect to pay interest on the Notes on any Interest Payment Date (i) by paying an amount in cash on such Interest
Payment Date equal to all or a portion of interest accrued from, and including, the immediately preceding Interest Payment Date (or if
there is no immediately preceding Interest Payment Date, from, and including, the Issue Date or such other date from which such Note bears
interest as stated on such Note) on the principal amount as of the immediately preceding Interest Payment Date (or if there is no immediately
preceding Interest Payment Date, on the Initial Principal Amount), calculated at the Cash Interest Rate (the “Cash Method")
and (ii) to the extent not paid by the Cash Method, by payment-in-kind, in the case of Global Notes, by increasing the principal amount
of such Global Notes by the Capitalization Amount for such Interest Payment Date or, in the case of Definitive Notes, by issuing PIK Notes
in the form of Physical Notes (the “Capitalization Method”); provided that on any Interest Payment Date on which
the Company pays interest using the Capitalization Method, the Capitalization Amount shall be rounded up to the nearest $1.00; and provided
further that for any Notes (1) surrendered for conversion after a Regular Record Date and on or prior to the corresponding Interest
Payment Date; (2) redeemed in connection with a Redemption Date that is after a Regular Record Date and on or prior to the corresponding
Interest Payment Date; or (3) repurchased on a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior
to the corresponding Interest Payment Date, any Capitalization Amount which would have been paid as PIK Interest for such Notes on such
corresponding Interest Payment Date shall instead be paid in cash at the Cash Interest Rate to the relevant Holder(s) of such Notes as
of such Regular Record Date, and no such PIK Payment on account of such Notes (notwithstanding any prior election (or deemed election)
by the Company to pay such interest pursuant to the Capitalization Method for such Notes). The Company shall elect the method of paying
interest on an Interest Payment Date by delivering a notice to the Trustee and Holders on or prior to the 10th calendar day immediately
preceding the relevant Interest Payment Date identifying the method selected and (a) the amount of cash interest to be paid and/or (b)
the amount of PIK Interest to be paid, as applicable. In the absence of such an election with respect to an Interest Payment Date, the
Company shall be deemed to have elected the Capitalization Method for all of the interest due on such Interest Payment Date. All interest
payable in respect of the Interest Payment Date scheduled to occur on the Maturity Date shall be paid entirely by the Cash Method.


 






    17


     


    

 


(ii) The
Company shall make payments of interest by the Cash Method in accordance with Section 2.03(c) and 4.01. The Company shall make payments
of interest by the Capitalization Method, (x) if the Notes are represented by one or more Physical Notes, by issuing additional Physical
Notes to the relevant record Holder on the relevant Interest Payment Date (the “PIK Notes") in an aggregate principal
amount equal to the relevant Capitalization Amount (rounded up to the nearest $1.00) and the Trustee will, upon receipt of a Company Order,
authenticate and deliver such PIK Notes in the form of Physical Notes for original issuance to the Holders on the relevant Regular Record
Date, as shown by the records of the register of Holders, and (y) if the Notes are represented by one or more Global Notes registered
in the name of, or held by, the Depositary or its nominee on the relevant Regular Record Date, by increasing the principal amount of the
outstanding Global Note by an amount equal to the amount of PIK Interest for the applicable interest period (rounded up to the nearest
$1.00), and the Trustee will, upon receipt of a Company Order, increase the principal amount of the outstanding Global Note by such amount.
The issuance of any PIK Notes shall be computed on the basis of the aggregate principal amount of the Notes held by a Holder. Following
an increase in the principal amount of the outstanding Global Notes as a result of a PIK Payment, the Global Notes shall bear interest
on such increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued as Physical Notes shall be dated
as of the applicable Interest Payment Date and shall bear interest from and after such date. All PIK Notes issued pursuant to a PIK Payment
shall be governed by, and subject to the terms, provisions and conditions of, this Indenture and shall have the same rights and benefits
as the Notes issued on the Issue Date. Any PIK Notes shall be issued with the description PIK on the face of such Note, and references
to the “principal amount” of the Notes shall include any increase in the principal amount of the outstanding Notes as a result
of any PIK Payment. The Notes issued on the Issue Date and any PIK Notes shall be treated as a single class for all purposes under this
Indenture.


 


Section 2.04. Execution, Authentication and
Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual, electronic or facsimile signature
of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice Presidents.


 






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At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate
and deliver such Notes, without any further action by the Company hereunder.


 


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


 


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


 


Section 2.05. Exchange and Registration of Transfer
of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office a register (the
register maintained in such office or in any other office or agency of the Company designated pursuant to Section 4.02,
the “Note Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of Notes. Such register shall be in written form or in any form capable of being
converted into written form within a reasonable period of time. The Trustee is hereby initially appointed the “Note Registrar”
for the purpose of registering Notes and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars
in accordance with Section 4.02.


 


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


 






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


 


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


 


No service charge shall be imposed by the Company,
the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but
the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in
connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different
from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.


 


None of the Company, the Trustee, the Note Registrar
or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion or, if a portion
of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or a portion of any Note,
surrendered for repurchase (and not withdrawn) in accordance with Article 15 or
(iii) any Notes selected for redemption in accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.


 






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All Notes issued upon any registration of transfer
or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.

 


(b) The
Notes shall be issued initially in the form of Physical Notes. At the Company’s sole discretion, so long as the Notes are eligible
for book-entry settlement with the Depositary and the restrictions on transfer described in Section 2.05(c) no
longer apply to such Note, subject to the fourth paragraph from the end of Section 2.05(c) the Notes may be represented by one
or more Notes in global form (each, a “Global Note”) registered in the name of the Depositary or the nominee of the
Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall
be effected through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions
on transfer set forth herein) and the procedures of the Depositary therefor.


 


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


 


Any certificate evidencing a Note (and all securities
issued in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear
the legend set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless otherwise agreed
by the Company in writing, with notice thereof to the Trustee):


 


THIS SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF
OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF EOS ENERGY ENTERPRISES, INC. (THE “COMPANY”)
THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT:


 


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


 


(B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 






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


 


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


 


THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER
AS SET FORTH IN AN INVESTMENT AGREEMENT DATED AS OF JULY 6, 2021 (AS IT MAY BE AMENDED FROM TIME TO TIME), BY AND AMONG THE COMPANY AND
CERTAIN OTHER PARTIES THERETO, COPIES OF WHICH ARE PUBLICLY FILED OR ON FILE WITH THE SECRETARY OF THE COMPANY, AND THIS SECURITY MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.


 


No transfer of any Note will be registered by the
Note Registrar unless the applicable box on the Form of Assignment and Transfer has been checked.


 


Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred as a whole or in part except (i) by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for exchange of
a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately succeeding paragraph.


 


The Depositary shall be a clearing agency registered
under the Exchange Act appointed by the Company and may be The Depository Trust Company. Each Global Note for which The Depository Trust
Company is Depositary may be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and
deposited with the Trustee as custodian for Cede & Co.


 


If (i) the Depositary notifies the Company at any
time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed
within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor depositary is
not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing and a beneficial owner
of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon
receipt of an Officer’s Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver
(x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such
Note corresponding to such beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each
beneficial owner of the related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal
amount of such Global Notes in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes
shall be canceled.


 






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Physical Notes issued in exchange for all or a
part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the case of clause (iii) of the immediately
preceding paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver
such Physical Notes to the Persons in whose names such Physical Notes are so registered.


 


At such time as all interests in a Global Note
have been converted, canceled, repurchased, redeemed or transferred, such Global Note shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time prior to
such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased, redeemed or transferred
to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary
and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such Global Note, by
the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.


 


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


 


(d) Any
stock certificate or book-entry representing Common Stock issued upon conversion of a Note shall bear a legend in substantially the following
form (unless such Common Stock has been transferred pursuant to a registration statement that has become or been declared effective under
the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided
by Rule 144 or any similar provision then in force under the Securities Act, or such Common Stock has been issued upon conversion of a
Note that has transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and
that continues to be effective at the time of such transfer, or pursuant to the exemption from registration provided by Rule 144 or any
similar provision then in force under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to the
Trustee and any transfer agent for the Common Stock):


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR
THE BENEFIT OF EOS ENERGY ENTERPRISES, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT:


 


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


 


(B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


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


 






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


 


THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER
AS SET FORTH IN AN INVESTMENT AGREEMENT DATED AS OF JULY 6, 2021 (AS IT MAY BE AMENDED FROM TIME TO TIME), BY AND AMONG THE COMPANY AND
CERTAIN OTHER PARTIES THERETO, COPIES OF WHICH ARE PUBLICLY FILED OR ON FILE WITH THE SECRETARY OF THE COMPANY, AND THIS SECURITY MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.


 


Any such Common Stock (i) as to which such restrictions
on transfer shall have expired in accordance with their terms, (ii) that has been transferred pursuant to a registration statement that
has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer or (iii)
that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities
Act, may, upon surrender of the certificates representing such shares of Common Stock for exchange in accordance with the procedures of
the transfer agent for the Common Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of Common
Stock, which shall not bear the restrictive legend required by this Section 2.05(d).


 


(e) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among
DTC participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine
the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee nor any of its agents
shall have any responsibility for any actions taken or not taken by DTC.


 


Section 2.06. Mutilated, Destroyed, Lost or
Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute,
and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver, a new Note,
bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and
in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of
them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence
to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.


 


The Trustee or such authenticating agent may authenticate
any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable,
such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note
Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient to
cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder of
the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or stolen.
In case any Note that has matured or is about to mature or has been surrendered for required repurchase or is about to be converted in
accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of
issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof
except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Company,
to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of
them harmless for any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction,
loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of
their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.


 






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


 


Section 2.07. Temporary Notes. Pending the
preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
written request of the Company, authenticate and deliver temporary Notes in registered form (printed or lithographed). Temporary Notes
shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions, insertions
and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note shall be
executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the
same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to the
Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other than
any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section 4.02
and the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate principal
amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor. Until so exchanged,
the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as
Physical Notes authenticated and delivered hereunder.


 


Section 2.08. Cancellation of Notes Paid, Converted,
Etc. The Company shall cause all Notes surrendered for the purpose of payment at maturity, repurchase upon a Fundamental Change, redemption,
registration of transfer or exchange or conversion (other than any Notes exchanged pursuant to Section 14.11), if surrendered to the Company
or any of the Company’s agents, Subsidiaries or Affiliates that the Company controls, to be surrendered to the Trustee for cancellation.
All Notes delivered to the Trustee shall be canceled promptly by it. Except for any Notes surrendered for registration of transfer or
exchange, or as otherwise expressly permitted by any of the provisions of this Indenture, no Notes shall be authenticated in exchange
for any Notes surrendered to the Trustee for cancellation. The Trustee shall dispose of canceled Notes in accordance with its customary
procedures and, after such disposition, shall deliver a certificate of such cancellation to the Company, at the Company’s written
request in a Company Order.


 






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Section 2.09. CUSIP Numbers. The Company
in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.


 


Section 2.10. Additional Notes; Repurchases.
The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen this Indenture and issue additional Notes
hereunder (in addition to any PIK Notes) with the same terms as the Notes initially issued hereunder (other than differences in the issue
date, the issue price and interest accrued prior to the issue date of such additional Notes) in an unlimited aggregate principal amount;
provided that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax
purposes, such additional Notes shall have a separate CUSIP number (if any). Prior to the issuance of any such additional Notes, the Company
shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s Certificate
and Opinion of Counsel to cover such matters, in addition to those required by Section 17.05, as the Trustee shall reasonably request.
In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered
to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through a private or
public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives.
The Company shall cause any Notes so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to
be surrendered to the Trustee for cancellation in accordance with Section 2.08 and, subject to Section 8.04, such Notes shall no longer
be considered outstanding under this Indenture upon such cancellation.


 


Article
3

Satisfaction and Discharge


 


Section 3.01. Satisfaction and Discharge.
This Indenture shall upon request of the Company contained in an Officer’s Certificate cease to be of further effect, and the Trustee,
at the expense of the Company, shall execute such instruments as may be reasonably requested by the Company acknowledging satisfaction
and discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes which have been destroyed,
lost or stolen and which have been replaced, paid or converted as provided in Section 2.06)
have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable,
after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental Change Repurchase Date,
upon conversion or otherwise, cash or cash, shares of Common Stock or a combination thereof, as applicable, solely to satisfy the Company’s
Conversion Obligation, sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture by the Company;
and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.06 shall survive.


 






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Article
4

Particular Covenants of the Company


 


Section 4.01. Payment of Principal and Interest.
The Company covenants and agrees that it will cause to be paid the principal (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) of, and pay accrued interest that has not been paid on, each of the Notes at the places, at the respective
times and in the manner provided in this Section, Section 2.03(c), Section 2.03(d) and in the Notes. Principal, premium, if any, and interest
payable by the Cash Method shall be considered paid on the date due if by 11:00 a.m. (New York time) on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and cash interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the
terms of this Indenture. Payments of interest by the Capitalization Method shall be considered paid if the Trustee has received the Company
Order required by Section 2.03(d) and, in the case of Notes in Physical Form, PIK Notes in Physical Form executed by a proper Officer
of the Company.


 


Section 4.02. Maintenance of Office or Agency.
The Company will maintain in the continental United States of America an office or agency where the Notes may be surrendered for registration
of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”) or for conversion (“Conversion
Agent”) and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office or such other office or agency of the
Trustee specified by the Trustee and located in the continental United States of America.


 


The Company may also from time to time designate
as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the continental United States of America for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other
office or agency. The terms “Paying Agent” and “Conversion Agent” include any such additional or
other offices or agencies, as applicable.


 






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The Company hereby initially designates the Trustee
as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as the office or agency in the continental
United States of America where Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase
or for conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. Notwithstanding
anything in this Section 4.02 to the contrary, no office of the Trustee shall be an office or agency for service of legal process on the
Company.


 


Section 4.03. Appointments to Fill Vacancies
in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the
manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee hereunder.


 


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


 


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


 


(ii) that
it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same shall be due
and payable; and


 


(iii) that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.


 


Subject to Section 2.03(d), the Company shall,
on or before each due date of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable)
of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the
Redemption Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided that if such deposit
is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.


 






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(b) If
the Company shall act as its own Paying Agent, subject to Section 2.03(d), it will, on or before each due date of the principal (including
the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set
aside, segregate and hold in trust for the benefit of the Trustee and the Holders of the Notes a sum sufficient to pay such principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming
due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment
of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid
interest on, the Notes when the same shall become due and payable. Upon any Event of Default under Section 6.01(i) or Section 6.01(j)
the Trustee shall automatically become the Paying Agent.


 


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


 


(d) Any
money and shares of Common Stock deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment
of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest
on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion has become due and payable
shall be paid to the Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money and shares of Common Stock,
and all liability of the Company as trustee thereof, shall thereupon cease.


 


Section 4.05. Rule 144A Information Requirement
and Annual Reports. At any time the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company shall, so long
as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall, at such time, constitute “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and, upon written request, any Holder,
beneficial owner or prospective purchaser of such Notes or any shares of Common Stock issuable upon conversion of such Notes, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act to facilitate the resale of such Notes or shares of Common
Stock pursuant to Rule 144A.


 


Section 4.06. Reports. The Company shall
deliver to the Trustee, within 15 days after the same are required to be filed with the Commission (giving effect to any grace period
provided by Rule 12b-25 (or any successor rule) under the Exchange Act), copies of any documents or reports that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or reports,
or portions thereof, subject to confidential treatment and any correspondence with the Commission). Any such document or report that the
Company files with the Commission via the Commission’s EDGAR system (or any successor thereto) shall be deemed to be filed with
the Trustee for purposes of this Section 4.06 at the time such documents are filed via the EDGAR system (or any successor thereto), it
being understood that the Trustee shall not be responsible for determining whether such filings have been made. Delivery of the reports
and documents described in this Section 4.06 to the Trustee is for informational purposes only, and the Trustee’s receipt of such
shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely
on an Officer’s Certificate). To the extent the Trust Indenture Act then applies to this Indenture, the Company shall comply with
Trust Indenture Act §314(a).


 






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Section 4.07. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter
in force, or that may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.


 


Section 4.08. Compliance Certificate; Statements
as to Defaults. The Company shall deliver to the Trustee within 150 days after the end of each fiscal year of the Company (beginning
with the fiscal year ending on December 31, 2021) an Officer’s Certificate stating whether the signers thereof have knowledge of
any Event of Default that occurred during the previous year and, if so, specifying each such Event of Default and the nature thereof.


 


In addition, the Company shall deliver to the Trustee,
within 30 days after the Company obtains knowledge of the occurrence of any Event of Default or Default, an Officer’s Certificate
setting forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing to take
in respect thereof; provided that the Company is not required to deliver such notice if such Event of Default or Default has been
cured or is no longer continuing.


 


Article
5

Lists of Holders and Reports by the Company and the Trustee


 


Section 5.01. Lists of Holders. The Company
covenants and agrees that, upon written request, it will furnish or cause to be furnished to the Trustee, semi-annually, not more than
five days after each June 15 and December 15 in each year, and at such other times as the Trustee may request in writing, within 30 days
after receipt by the Company of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely
provide any notice to be provided by it hereunder), a list in such form as the Trustee may reasonably require of the names and addresses
of the Holders as of a date not more than 15 days (or such other date as the Trustee may reasonably request in order to so provide any
such notices) prior to the time such information is furnished, except that no such list need be furnished so long as the Trustee is acting
as Note Registrar.


 






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Section 5.02. Preservation and Disclosure of
Lists. The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses
of the Holders contained in the most recent list furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity
as Note Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished. Every Holder, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.


 


Article
6

Defaults and Remedies


 


Section 6.01. Events of Default. Each of
the following events shall be an “Event of Default” with respect to the Notes:


 


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


 


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


 


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


 


(d) failure
by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c) when
due and such failure continues for a period of five Business Days;


 


(e) failure
by the Company to comply with its obligations under Article 11;


 


(f) failure
by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then
outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this Indenture;


 






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(g) default
by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under which there
may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $100,000,000 (or its
foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness now exists
or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable prior to its stated maturity
date or (ii) constituting a failure to pay the principal of any such debt when due and payable (after the expiration of all applicable
grace periods) at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, and in the cases of clauses
(i) and (ii), such acceleration shall not have been rescinded or annulled or such failure to pay or default shall not have been cured
or waived, or such indebtedness is not paid or discharged, as the case may be, within 30 days after written notice to the Company by the
Trustee or to the Company and the Trustee by Holders of at least 25% in aggregate principal amount of Notes then outstanding in accordance
with this Indenture;


 


(h) one
or more final, non-appealable judgments or orders is rendered against the Company or any Significant Subsidiary, which requires the payment
in money by the Company or any Significant Subsidiary, individually or in the aggregate, of an amount (net of amounts covered by insurance
or bonded) in excess of $50,000,000, and such judgment or judgments have not been satisfied, stayed, paid, discharged, vacated, bonded,
annulled or rescinded within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced,
or (ii) the date on which all rights to appeal have been extinguished;


 


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


 


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


 






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Section 6.02. Acceleration; Rescission and Annulment.
If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), then, and in each and every such case (other than an Event of Default
specified in Section 6.01(i) or Section 6.01(j)), unless the principal of all of the Notes shall have already become due and payable,
either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance
with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders), may declare 100% of the Capitalized Principal
Amount of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration the same
shall become and shall automatically be immediately due and payable, anything contained in this Indenture or in the Notes to the contrary
notwithstanding. If an Event of Default specified in Section 6.01(i) or Section 6.01(j) occurs and is continuing, 100% of the Capitalized
Principal Amount of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due and
payable.


 


The immediately preceding paragraph, however, is
subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon all Notes and the principal
of any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue installments of accrued and unpaid
interest to the extent that payment of such interest is enforceable under applicable law, and on such principal at the Cash Interest Rate
borne by the Notes at such time) and amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission would not conflict with
any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default under this Indenture, other
than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall have become due solely by such acceleration,
shall have been cured or waived pursuant to Section 6.08, then and in every such case (except as provided in the immediately succeeding
sentence) the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and
to the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences
and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default,
or shall impair any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment
shall extend to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to
repurchase any Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of
the Notes.


 






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Section 6.03. Payments of Notes on Default;
Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred and be continuing, the Company
shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable
on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the Cash Interest Rate
borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the
Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the
Notes, wherever situated.


 


In the event there shall be pending proceedings
for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code,
or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other
obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant
to the provisions of this Section 6.03, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem
necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or
any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section
7.06; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized
by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent
to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses,
advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06,
incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and
disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien
on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes
may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.


 


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


 






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


 


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


 


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


 


Section 6.04. Application of Monies Collected
by Trustee. Any monies collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and stamping
thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:


 


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


 


Second, in case the principal of the outstanding
Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion of, the Notes in default
in the order of the date due of the payments of such interest and cash due upon conversion, as the case may be, with interest (to the
extent that such interest has been collected by the Trustee) upon such overdue payments at the Cash Interest Rate borne by the Notes at
such time, such payments to be made ratably to the Persons entitled thereto;


 


Third, in case the principal of the outstanding
Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including, if applicable,
the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) then owing and unpaid
upon the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent that such interest has been
collected by the Trustee, upon overdue installments of interest at the Cash Interest Rate borne by the Notes at such time, and in case
such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal
(including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) and interest
without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the
Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and


 






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


 


Section 6.05. Proceedings by Holders. Except
to enforce the right to receive payment of principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase
Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion, no Holder of any Note
shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity
or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other
similar official, or for any other remedy hereunder, unless:


 


(a) such
Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;


 


(b) Holders
of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee hereunder;


 


(c) such
Holders shall have offered, and if requested, provided to the Trustee such security or indemnity satisfactory to the Trustee against any
loss, liability or expense to be incurred therein or thereby;


 


(d) the
Trustee for 60 days after its receipt of such notice, request and offer of such security or indemnity, shall have neglected or refused
to institute any such action, suit or proceeding; and


 


(e) no
direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders
of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.08,


 


it being understood and intended, and being expressly
covenanted by the Holder of every Note with every other Holder and the Trustee that no one or more Holders shall have any right in any
manner whatever by virtue of or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other
Holder, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein).
For the protection and enforcement of this Section 6.05, each and every Holder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.


 






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Notwithstanding any other provision of this Indenture
and any provision of any Note, each Holder shall have the right to receive payment or delivery, as the case may be, of (x) the principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any,
on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed or provided for in such
Note or in this Indenture, or to institute suit for the enforcement of any such payment or delivery, as the case may be.


 


Section 6.06. Proceedings by Trustee. In
case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture
by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action
at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.


 


Section 6.07. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.06, all powers and remedies given by this Article 6 to the Trustee or to the Holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants
and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any
right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver
of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.05, every power and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.


 


Section 6.08. Direction of Proceedings and Waiver
of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04 shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided,
however, that (a) such direction shall not be in conflict with any rule of law or with this Indenture, and (b) the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any
direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability;
it being understood that the Trustee does not have an affirmative duty to determine whether any action is prejudicial to any Holder. The
Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with Section 8.04 may
on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default
in the payment of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price and any Fundamental Change
Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a failure by the Company
to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant
or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note affected.
Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder;
but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever
any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.08, said Default or Event of Default shall
for all purposes of the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right consequent thereon.


 






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Section 6.09. Notice of Defaults. The Trustee
shall, within the later of 90 days after the occurrence and continuance of a Default of which a Responsible Officer has actual knowledge
or the date on which a Responsible Officer obtains actual knowledge, deliver to all Holders notice of all Defaults known to a Responsible
Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that, except in the case
of a Default in the payment of the principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable),
or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion,
the Trustee shall be protected in withholding such notice if and so long as a committee of Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the Holders.


 


Section 6.10. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
provided that the provisions of this Section 6.10 (to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Notes at the time outstanding determined in accordance with Section 8.04, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to
any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance with the
provisions of Article 14.


 


Article
7

Concerning the Trustee


 


Section 7.01. Duties and Responsibilities of
Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default that
may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In the event
an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs; provided that, regardless of whether an Event of Default has occurred and is continuing, the
Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of
the Holders unless such Holders have offered, and, if requested, provided to the Trustee indemnity or security satisfactory to the Trustee
against any loss, liability or expense that might be incurred by it in compliance with such request or direction.


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


(h) in
the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer agent hereunder, the
rights and protections afforded to the Trustee pursuant to this Article 7 or elsewhere in this Indenture shall also be afforded to such
Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer agent.


 






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None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers.


 


Section 7.02. Reliance on Documents, Opinions,
Etc.


 


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


 


(b) any
request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;


 


(c) the
Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;


 


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


 


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


 


(f) before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel;


 


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


 


(h) in
no event shall the Trustee be liable for any special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action; and


 


(i) the
Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible
Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or by any Holder of the Notes at the Corporate Trust Office and such notice states that
it is a “Notice of Default.”


 






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Section 7.03. No Responsibility for Recitals,
Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate of authentication) shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by
the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.


 


Section 7.04. Trustee, Paying Agents, Conversion
Agents or Note Registrar May Own Notes. The Trustee, any Paying Agent, any Conversion Agent or Note Registrar, in its individual or
any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying Agent,
Conversion Agent or Note Registrar.


 


Section 7.05. Monies to Be Held in Trust.
All monies received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as may be agreed from time to time by the
Company and the Trustee.


 


Section 7.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation for all services
rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee
of an express trust) as mutually agreed to in writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the
provisions of this Indenture in any capacity hereunder (including the reasonable compensation and the expenses and disbursements of its
agents and counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as shall have been
caused by its gross negligence or willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction.
The Company also covenants to indemnify the Trustee in any capacity under this Indenture and any other document or transaction entered
into in connection herewith and its agents and any authenticating agent for, and to hold them harmless against, any loss, claim, damage,
liability or expense incurred without gross negligence or willful misconduct on the part of the Trustee, its officers, directors, agents
or employees, or such agent or authenticating agent, as the case may be, as determined by a final non-appealable order of a court of competent
jurisdiction, and arising out of or in connection with the acceptance or administration of this Indenture or in any other capacity hereunder,
including the costs and expenses of defending themselves against any claim of liability in the premises. The obligations of the Company
under this Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances
shall be secured by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee,
except, subject to the effect of Section 6.04, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s
right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of
the Company. The obligation of the Company under this Section 7.06 shall survive the satisfaction and discharge of this Indenture and
the earlier resignation or removal of the Trustee. The Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The indemnification provided in this Section 7.06 shall extend to the officers, directors, agents
and employees of the Trustee.


 






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


 


Section 7.07. Officer’s Certificate as
Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee,
and such Officer’s Certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.


 


Section 7.08. Eligibility of Trustee. There
shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act (as if the Trust
Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at least $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.


 


Section 7.09. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of such resignation to the Company and by delivering notice thereof to
the Holders. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee shall have been so appointed and have accepted appointment within 60 days after
the giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten Business Days’ notice to the Company
and the Holders, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a
bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, subject to the provisions of Section
6.10, on behalf of himself or herself and all others similarly situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.


 






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


 


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


 


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


 


then, in either case, the Company may by a Board Resolution remove
the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions
of Section 6.10, any Holder who has been a bona fide holder of a Note or Notes for at least six months (or since the date of this Indenture)
may, on behalf of himself or herself and all others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.


 


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


 


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


 


Section 7.10. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on
the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due
it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing
to act shall, nevertheless, retain a senior lien to which the Notes are hereby made subordinate on all money or property held or collected
by such trustee as such, except for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due
it pursuant to the provisions of Section 7.06.


 






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


 


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


 


Section 7.11. Succession by Merger, Etc.
Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation
or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee (including the administration of this Indenture),
shall be the successor to the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of
the parties hereto; provided that in the case of any corporation or other entity succeeding to all or substantially all of the
corporate trust business of the Trustee such corporation or other entity shall be eligible under the provisions of Section 7.08.


 


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


 






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Section 7.12. Trustee’s Application for
Instructions from the Company. Any application by the Trustee for written instructions from the Company (other than with regard to
any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture)
may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to
the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after
the date specified in such application (which date shall not be less than three Business Days after the date any Officer that the Company
has indicated to the Trustee should receive such application actually receives such application, unless any such Officer shall have consented
in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee
shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be
taken or omitted.


 


Section 7.13. Limitation on Rights of Trustee
as Creditor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Notes under this
Indenture), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of the claims against the
Company (or any such other obligor).


 


Section 7.14. Reports by the Trustee. Within 60
days after each March 15 beginning with the March 15 following the date of this Indenture, and for so long as any Notes remain outstanding,
the Trustee will send to the Holders of the Notes a brief report dated as of such reporting date that complies with Section 313(a) of
the Trust Indenture Act (but if no event described in such Section 313(a) of the Trust Indenture Act of 1939 has occurred within the twelve
months preceding the reporting date, no report need be sent). At the time it delivers such report, the Trustee shall deliver a copy thereof
to the Company.


 


Article
8

Concerning the Holders


 


Section 8.01. Action by Holders. Whenever
in this Indenture it is provided that the Holders of a specified percentage of the aggregate principal amount of the Notes may take any
action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action, the Holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing,
or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions
of Article 9, or (c) by a combination of such instrument or instruments and any such record of such a meeting of Holders. Whenever the
Company or the Trustee solicits the taking of any action by the Holders of the Notes, the Company or the Trustee may, but shall not be
required to, fix in advance of such solicitation, a date as the record date for determining Holders entitled to take such action. The
record date if one is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.


 






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Except as set forth in Section 2.05(c), members
of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to
any Global Note held on their behalf by the Depositary, or its custodian, or under such Global Notes. The Depositary may be treated by
the Company, any other obligor upon the Notes, the Trustee and any agent of any of them as the absolute owner of the Global Notes for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, any other obligor upon the Notes, the
Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights
of a beneficial owner of any Note. The Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members
and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or
the Notes.


 


Section 8.02. Proof of Execution by Holders.
Subject to the provisions of Section 7.01, Section 7.02 and Section
9.05, proof of the execution of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting
shall be proved in the manner provided in Section 9.06.


 


Section 8.03. Who Are Deemed Absolute Owners.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note Registrar may deem the Person
in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by any Person other than the
Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal (including any Redemption Price
and any Fundamental Change Repurchase Price) of and (subject to Section 2.03) accrued and unpaid interest on such Note, for conversion
of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying Agent nor any Conversion Agent nor any
Note Registrar shall be affected by any notice to the contrary. All such payments or deliveries so made to any Holder for the time being,
or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy
and discharge the liability for monies payable or shares deliverable upon any such Note.


 


Section 8.04. Company-Owned Notes Disregarded.
In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver
or other action under this Indenture, Notes that are owned by the Company or by any Subsidiary thereof shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are so
owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of
this Section 8.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to
such Notes and that the pledgee is not the Company or a Subsidiary thereof. In the case of a dispute as to such right, any decision by
the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish
to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee shall be entitled to accept
such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein
are outstanding for the purpose of any such determination.


 






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Section 8.05. Revocation of Consents; Future
Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any
action by the Holders of the percentage of the aggregate principal amount of the Notes specified in this Indenture in connection with
such action, any Holder of a Note that is shown by the evidence to be included in the Notes the Holders of which have consented to such
action may, by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future Holders and owners of such Note and of any Notes issued in exchange or substitution therefor
or upon registration of transfer thereof, irrespective of whether any notation in regard thereto is made upon such Note or any Note issued
in exchange or substitution therefor or upon registration of transfer thereof.


 


Article
9

Holders’ Meetings


 


Section 9.01. Purpose of Meetings. A meeting
of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the following purposes:


 


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


 


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


 


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


 


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


 






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Section 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall
be delivered to Holders of such Notes. Such notice shall also be delivered to the Company. Such notices shall be delivered not less than
20 nor more than 90 days prior to the date fixed for the meeting.


 


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


 


Section 9.03. Call of Meetings by Company or
Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate principal
amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered the notice of such meeting
within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof as provided in Section 9.02.


 


Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining to
such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record date pertaining
to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company
and its counsel.


 


Section 9.05. Regulations. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.


 


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


 






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Subject to the provisions of Section 8.04, at any
meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1.00 principal amount of Notes held or represented
by him or her; provided, however, that no vote shall be cast or counted at any meeting in respect of any Note challenged
as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to
vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on behalf
of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned from
time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not constituting
a quorum, and the meeting may be held as so adjourned without further notice.


 


Section 9.06. Voting. The vote upon any
resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting.
A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was delivered
as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.


 


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


 


Section 9.07. No Delay of Rights by Meeting.
Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders
or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Holders under any of the provisions of this Indenture or of the Notes.


 


Article
10

Supplemental Indentures


 


Section 10.01. Supplemental Indentures Without
Consent of Holders. The Company and the Trustee, at the Company’s expense, may from time to time and at any time amend the Notes
or enter into an indenture or indentures supplemental hereto in each case for one or more of the following purposes:


 


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


 


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


 


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


 






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(d) to
secure the Notes;


 


(e) to
add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon
the Company;


 


(f) to
make any change that does not, individually or in the aggregate with all other such changes, materially adversely affect the rights of
any Holder;


 


(g) in
connection with any Merger Event, to provide that the Notes are convertible into Reference Property, subject to the provisions of Section
14.02, and make such related changes to the terms of the Notes to the extent expressly required by Section 14.06;


 


(h) to
comply with the rules of any applicable Depositary, including The Depository Trust Company, so long as such amendment does not adversely
affect the rights of any Holder in any material respect;


 


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


 


(j) to
provide for the acceptance of appointment by a Trustee or successor Trustee, security registrar, Paying Agent or Conversion Agent, or
to facilitate the administration of the trusts under this Indenture by more than one trustee;


 


(k) to
irrevocably elect a Settlement Method or a Specified Dollar Amount, or eliminate the Company’s right to elect a Settlement Method;
provided that no such election or elimination shall affect any Settlement Method theretofore elected (or deemed to be elected)
with respect to any Note pursuant to the provisions of Article 14; or


 


(l) to
make PIK Payments (including to issue PIK Notes) or facilitate the same.


 


Upon the written request of the Company, the Trustee
is hereby authorized to join with the Company in the execution of any such amendment or supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion,
enter into any amendment or supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise.


 


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


 


Section 10.02. Supplemental Indentures with
Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of at least a majority of the aggregate principal
amount of the Notes then outstanding (determined in accordance with Article 8 and including, without limitation, consents obtained in
connection with a repurchase of, or tender or exchange offer for, Notes), the Company and the Trustee, at the Company’s expense,
may from time to time and at any time amend the Notes and/or enter into an indenture or indentures supplemental hereto in each case for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, the Notes or
any supplemental indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the
consent of each Holder of an outstanding Note affected, no such amendment or supplemental indenture shall:


 


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


 






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


 


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


 


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


 


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


 


(f) make
any Note payable in a currency, or at a place of payment, other than that stated in the Note;


 


(g) change
the ranking of the Notes; or


 


(h) make
any direct or indirect change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02
or Section 6.08.


 


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


 


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


 


Section 10.03. Effect of Supplemental Indentures.
Upon the execution of any amendment or supplemental indenture pursuant to the provisions of this Article 10, the Notes and/or this Indenture
shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Holders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such amendment or supplemental
indenture shall be and be deemed to be part of the terms and conditions of the Notes and/or this Indenture for any and all purposes.


 


Section 10.04. Notation on Notes. Notes
authenticated and delivered after the execution of any amendment or supplemental indenture pursuant to the provisions of this Article
10 may, at the Company’s expense, bear a notation in form approved by the Trustee as to any matter provided for in such amendment
or supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of the
Trustee and the Company, to any modification of the Notes or this Indenture contained in any such amendment or supplemental indenture
may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent
duly appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.


 


Section 10.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee. In addition to the documents required by Section 17.05, the Trustee shall receive an Officer’s
Certificate and an Opinion of Counsel stating that, and as conclusive evidence that, any amendment or supplemental indenture executed
pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture.


 






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Article
11

Consolidation, Merger, Sale, Conveyance and Lease


 


Section 11.01. Company May Consolidate, Etc.
on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate with, merge with or into, or sell,
convey, transfer or lease all or substantially all of its properties and assets of the Company and its Subsidiaries, taken as a whole
(a “Business Combination Event”), to another Person, unless:


 


(a) the
resulting, surviving or transferee Person either (x) is the Company or (y) if not the Company, is a corporation (the “Successor
Corporation”) duly organized and existing under the laws of the United States of America, any State thereof or the District
of Columbia that expressly assumes (by executing and delivering to the Trustee, at or before the effective time of such Business Combination
Event, a supplemental indenture or amendment to the Notes, as the case may be (for purposes of this Article 11, a “supplemental
indenture”), pursuant to Section 11.02) all of the Company’s obligations under this Indenture and the Notes; and


 


(b) immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this Indenture.


 


Section 11.02. Successor Corporation to Be Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be,
of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such Successor Corporation (if not the Company) shall succeed to and, except in the case of
a lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part. Such Successor Corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Corporation instead of the Company
and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver,
or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company
to the Trustee for authentication, and any Notes that such Successor Corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture
as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued
at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case
of a lease), upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture
(or any successor that shall thereafter have become such in the manner prescribed in this Article 11)
may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from
its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.


 






    52


     


    

 


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


 


Section 11.03. Delivery of Officer's Certificate
and Opinion of Counsel to the Trustee. Before the effective time of any Business Combination Event, the Company shall 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) complies with Section 11.01 and Section 11.02; and (ii) all conditions precedent to such Business
Combination Event provided in this Indenture, if any, have been satisfied.


 


Article
12

Immunity of Incorporators, Stockholders, Officers and Directors


 


Section 12.01. Indenture and Notes Solely Corporate
Obligations. No recourse for the payment of the principal of or accrued and unpaid interest on any Note, nor for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture
or in any supplemental indenture or in any Note, nor because of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, Officer or director or Subsidiary, as such, past, present or future, of the Company or
of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of
the Notes.


 


Article
13

[Intentionally Omitted]


 


Article
14

Conversion of Notes


 


Section 14.01. Conversion Privilege. Subject
to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such Holder’s option
at any time and from time to time, to convert all or any portion (if the portion to be converted is $1,000 Capitalized Principal Amount
or any integral multiple of $1.00 in excess thereof) of such Note prior to the close of business on the Business Day immediately preceding
the Maturity Date, in each case, at an initial conversion rate of 49.9910 shares of Common Stock (subject to adjustment as provided in
this Article 14, the “Conversion Rate”) per $1,000
Capitalized Principal Amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion
Obligation”).


 






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Section 14.02. Conversion Procedure; Settlement
Upon Conversion.


 


(a) Subject
to this Section 14.02 and Section 14.06(a), upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the
converting Holder, in respect of each $1,000 Capitalized Principal Amount of Notes being converted, cash (“Cash Settlement”),
shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with
subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and shares of Common Stock, together
with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with subsection (j) of this Section
14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.


 


(i) All
conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the
Notes and prior to the related Redemption Date, and all conversions for which the relevant Conversion Date occurs on or after the Cut-off
Date, shall be settled using the same Settlement Method.


 


(ii) Except
for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect
to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs on or after the
Cut-off Date, the Company shall use the same Settlement Method for all conversions with the same Conversion Date, but the Company shall
not have any obligation to use the same Settlement Method with respect to conversions with different Conversion Dates.


 


(iii) If,
in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case
may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect
of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting Holders,
the Trustee and the Conversion Agent no later than the close of business on the second Trading Day immediately following the relevant
Conversion Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) after the date of issuance of a
Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice or (y) on or after the
Cut-off Date, no later than the Cut-off Date). If the Company does not elect a Settlement Method prior to the deadline set forth in the
immediately preceding sentence, the Company shall no longer have the right to elect a Settlement Method with respect to any conversion
on such Conversion Date or during such period, and the Company shall be deemed to have elected the Default Settlement Method with respect
to such conversion. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election of Combination
Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes.
If the Company delivers a Settlement Notice electing Combination Settlement (or is deemed to have elected Combination Settlement) in respect
of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes in such
Settlement Notice, the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes shall be deemed to be $1,000. For the
avoidance of doubt, the Company’s failure to timely elect a Settlement Method or specify as applicable a Specified Dollar Amount
shall not constitute a Default under this Indenture.


 






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By notice to Holders, the Trustee and the Conversion
Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method. By notice to all Holders,
the Company may, at its option, irrevocably elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement
Method that the Company is then permitted to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 Capitalized
Principal Amount of Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 Capitalized Principal
Amount of Notes at or above a specific amount set forth in such election notice. If the Company changes the Default Settlement Method
or the Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue
to set the Specified Dollar Amount per $1,000 Capitalized Principal Amount of Notes at or above a specific amount, the Company will, after
the date of such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent of
such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method as set forth in the immediately
preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount will be the specific amount set forth
in the election notice or, if no specific amount was set forth in the election notice, such Specified Dollar Amount will be $1,000 per
$1,000 Capitalized Principal Amount of Notes. A change in the Default Settlement Method or an irrevocable election shall apply for all
conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice; provided that no such change or election
will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note. For the avoidance of doubt,
such an irrevocable election, if made by the Company, will be effective without the need to amend this Indenture or the Notes, including
pursuant to Section 10.01(k). However, the Company may nonetheless choose to execute such an amendment at its option.


 


(iv) The
cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement
Amount”) shall be computed as follows:


 


(A) if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement,
the Company shall deliver to the converting Holder in respect of each $1,000 Capitalized Principal Amount of Notes being converted a number
of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date;


 


(B) if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement,
the Company shall pay to the converting Holder in respect of each $1,000 Capitalized Principal Amount of Notes being converted cash in
an amount equal to the sum of the Daily Conversion Values for each of the 40 consecutive Trading Days during the related Observation Period;
and


 






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(C) if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination Settlement,
the Company shall pay or deliver, as the case may be, in respect of each $1,000 Capitalized Principal Amount of Notes being converted,
a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive Trading Days during the related Observation
Period.


 


(v) The
Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following
the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values,
as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall notify
the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values, as the
case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion Agent
(if other than the Trustee) shall have no responsibility for any such determination.


 


(vi) Notwithstanding
anything to the contrary in the Notes or this Indenture, to the extent that Physical Settlement or Combination Settlement would require
the Company or any Holder to obtain any regulatory approvals or consents from, or make any filing with, any Governmental Entity, then
the Company, on the one hand, and the applicable Holder, on the other hand, shall, at the request of the Company or the Holder, as applicable,
(a) as promptly as practicable, make, or cause to be made, all filings and submissions required under applicable law, and (b) use their
commercially reasonable efforts to obtain, or cause to be obtained, approval of the transaction or relevant consent associated with the
filing or the termination or expiration of the applicable waiting period (“Governmental Approval”), and notwithstanding
anything to the contrary in the Notes or this Indenture, the right to convert the relevant Notes and the obligation of the Company to
deliver (or cause to be delivered) any related shares of Common Stock upon such conversion shall be contingent upon, and subject to, the
receipt of any required Governmental Approval (as determined by the Holder or the Company, as applicable, and notified in writing to the
Trustee and Conversion Agent) and any such delivery shall be delayed until such Governmental Approval is received; provided that,
for the avoidance of doubt, any filing or submission fees required under applicable laws shall be paid by such Holder.


 






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(b) Subject
to Section 14.02(e), before any Holder of a Note shall be entitled to
convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to any interest that has not been capitalized and is payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in ‎Section 14.02(h) and (ii) in the case of a Physical Note (1) complete,
manually sign and deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile,
PDF or other electronic transmission thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and
state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes
the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered,
(2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents),
at the office of the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay
funds equal to any accrued interest that has not been capitalized and is payable on the next Interest Payment Date to which such Holder
is not entitled as set forth in ‎Section 14.02(h). The Trustee (and if different, the Conversion Agent) shall notify the Company of
any conversion pursuant to this Article 14 on the Conversion Date for such conversion. No Notice of Conversion with respect to any Notes
may be surrendered by a Holder thereof if such Holder has also delivered a Fundamental Change Repurchase Notice to the Company in respect
of such Notes and has not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section 15.03.


 


If more than one Note shall be surrendered for
conversion at one time by the same Holder, the Conversion Obligation with respect to such Notes shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered.


 


(c) A
Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”)
that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.06(a) and Section
14.02(a)(vi), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation on the
third Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement, or on the third Business
Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of
Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the converting
Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall be entitled,
in certificate form or in book-entry format, in satisfaction of the Company’s Conversion Obligation.


 


(d) In
case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to
or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but, if
required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax
or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder of
the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.


 






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(e) If
a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue
of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other
than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent or the Company’s stock transfer
agent, as applicable, may refuse to deliver the certificates representing the shares of Common Stock being issued in a name other than
the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately
preceding sentence.


 


(f) Except
as provided in Section 14.03, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion of any
Note as provided in this Article 14.


 


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


 


(h) Upon
conversion, a Holder shall not receive any separate cash payment for any accrued interest that has not been paid or capitalized, except
as set forth below and in Section 14.02(k). The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy
in full its obligation to pay the Capitalized Principal Amount of the Note and any accrued interest that has not been paid or capitalized,
to, but not including, the relevant Conversion Date. As a result, any accrued interest that has not been paid or capitalized to, but not
including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Upon a conversion
of Notes into a combination of cash and shares of Common Stock, accrued interest that has not been paid or capitalized will be deemed
to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business
on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of
interest payable on such Notes in cash at the Cash Interest Rate as if the Company had elected the Cash Method for all such interest (whether
or not the Company actually elected the Cash Method) and the principal of such converted Notes shall not be increased by any Capitalization
Amount (regardless of whether the Company elected or is deemed to have elected the Capitalization Method) on the corresponding Interest
Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular
Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount
of such interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following
the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after a Regular
Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date; (3) if the Company has
specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following
the corresponding Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of
conversion with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately
preceding the Maturity Date shall receive the full interest payment due on the Maturity Date in cash at the Cash Interest Rate as if the
Company had elected the Cash Method for all such interest (whether or not the Company actually elected the Cash Method) regardless of
whether their Notes have been converted following such Regular Record Date.


 






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(i) Subject
to Section 14.02(a)(vi), the Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder
of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation
by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion
Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such
Notes surrendered for conversion.


 


(j) The
Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering
any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of
Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination
Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that
shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation
Period and any fractional shares remaining after such computation shall be paid in cash.


 


(k) Notwithstanding
anything to the contrary in this Indenture, in respect of any conversion of Notes with a Conversion Date occurring from and after the
Company’s delivery of a Redemption Notice and on or prior to the Scheduled Trading Day prior to the related Redemption Date, simultaneously
with delivery of the related consideration in satisfaction of the Company’s Conversion Obligation in respect of such conversion,
the Company shall also make a cash payment to the converting Holder equal to the present value, calculated using a discount rate equal
to the Treasury Rate in respect of such Conversion Date plus 50 basis points (and discounted on a semi-annual basis (assuming a
360 day year consisting of twelve 30 day months)), of all interest payments on the Capitalized Principal Amount of the Notes being converted
that the Holder of such Notes would have been entitled to receive had such Notes remained outstanding to the Maturity Date assuming the
Company had elected entirely the Cash Method on each Interest Payment Date and without duplication of any interest such Holder is entitled
to receive pursuant to Section 14.02(h).


 


Section 14.03. Adjustment of Conversion Rate.
The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company
shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split
or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of the Common Stock and solely
as a result of holding the Notes, in any of the transactions described in this Section 14.03, without having to convert their Notes, as
if they held a number of shares of Common Stock equal to the Conversion Rate for each $1,000 Capitalized Principal Amount of Notes held
by such Holder.


 






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(a) If
the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects
a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:


 


 


 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;




 


	CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;



 


	OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date (before giving effect to any such dividend, distribution, split or combination); and




 


	OS'	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share
combination.



 


Any adjustment made under this Section 14.03(a) shall become effective
immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business
on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described
in this Section 14.03(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the
date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.


 






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(b) If
the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with
a stockholder rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such issuance,
to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices
of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date
of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:


 


 


 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;




 


	CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;



 


	OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;




 


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



 


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



 


Any increase made under this Section 14.03(b) shall be made successively
whenever any such rights, options or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend
Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or
warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to
the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would
then be in effect if such Ex-Dividend Date for such issuance had not occurred.


 


For purposes of this Section 14.03(b), in determining
whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such
average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading
Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any
amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company.


 






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(c) If
the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights,
options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding
(i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 14.03(a) or Section 14.03(b), (ii)
except as otherwise provided in Section 14.09, rights issued pursuant to any stockholder rights plan of the Company then in effect, (iii)
distributions of Reference Property in exchange for, or upon conversion of, Common Stock in a Merger Event, (iv) dividends or distributions
paid exclusively in cash as to which the provisions set forth in Section 14.03(d) shall apply, and (v) Spin-Offs as to which the provisions
set forth below in this Section 14.03(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or
property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”),
then the Conversion Rate shall be increased based on the following formula:


 


 


 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;




 


	CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;



 


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




 


	FMV	=	the fair market value (as determined by the Company) of the Distributed Property with respect to each outstanding share of the Common
Stock on the Ex-Dividend Date for such distribution.



 


Any increase made under the portion of this Section
14.03(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution. If such distribution
is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution
had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0”
(as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 Capitalized Principal
Amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and
kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion
Rate in effect on the Ex-Dividend Date for the distribution. If the Company determines the “FMV” (as defined above) of any
distribution for purposes of this Section 14.03(c) by reference to the actual or when-issued trading market for any securities, it shall
in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock
over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such
distribution.


 






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With respect to an adjustment pursuant to this
Section 14.03(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of
any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when
issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion
Rate shall be increased based on the following formula:


 





 


where,


 


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




 


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



 


	FMV0	=	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest
    distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition
    of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar
    equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the
    “Valuation Period”); and




 


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




 


The increase to the Conversion Rate under the preceding
paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that (x) in respect of
any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period,
references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have
elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the Conversion Date in determining the Conversion
Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading
Day that falls within the relevant Observation Period for such conversion and within the Valuation Period, references to “10”
in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including,
the Ex-Dividend Date of such Spin-Off to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day.


 






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For purposes of this Section 14.03(c) (and subject
in all respect to Section 14.09), rights, options or warrants distributed
by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock,
including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a
specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock;
(ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been
distributed for purposes of this Section 14.03(c) (and no adjustment to the Conversion Rate under this Section 14.03(c) will be required)
until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed
and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 14.03(c). If any such right,
option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject
to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences
of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution
and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants
shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any
distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the
immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment
to the Conversion Rate under this Section 14.03(c) was made, (1) in the case of any such rights, options or warrants that shall all have
been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall
be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to
give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or
warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such
redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise
by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.


 


For purposes of Section 14.03(a),
Section 14.03(b) and this Section 14.03(c), if any dividend or distribution
to which this Section 14.03(c) is applicable also includes one or both of:


 


(A) a
dividend or distribution of shares of Common Stock to which Section 14.03(a) is applicable (the “Clause A Distribution”);
or


 


(B) a
dividend or distribution of rights, options or warrants to which Section 14.03(b) is applicable (the “Clause B Distribution”),


 


then, in either case, (1) such dividend or distribution,
other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section
14.03(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 14.03(c)
with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed
to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 14.03(a) and Section 14.03(b) with
respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution
and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock
included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open
of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 14.03(a) or “outstanding immediately
prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.03(b).


 






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(d) If
any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate shall be adjusted
based on the following formula:


 





 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;




 


	CR'	=	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;



 


	SP0	=	the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and




 


	C	=	the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.



 


Any increase pursuant to this Section 14.03(d) shall become effective
immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is
not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines not to make or pay such
dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined
above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 Capitalized Principal Amount of Notes,
at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received
if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or
distribution.


 






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(e) If
the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock that is subject to
the then applicable tender offer rules under the Exchange Act (other than any odd-lot tender offer), to the extent that the cash and value
of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices
of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last
date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based
on the following formula:


 





 


where,


 


	CR0	=	the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;




 


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



 


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



 


	OS0	=	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);




 


	OS'	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect
to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and



 


	SP'	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including,
the Trading Day next succeeding the date such tender or exchange offer expires.



 


The increase to the Conversion Rate under this
Section 14.03(e) shall occur at the close of business on the 10th Trading
Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided
that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during
the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange
offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number
of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date that such tender or exchange offer expires
to, and including, the Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash
Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion
and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender
or exchange offer, references to “10” or “10th” in the
preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading
Day next succeeding the expiration date of such tender or exchange offer to, and including, such Trading Day in determining the Conversion
Rate as of such Trading Day.


 






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If the Company or one of its Subsidiaries is obligated
to purchase shares of Common Stock pursuant to any such tender or exchange offer described in this ‎Section 14.03(e) but the Company
or such Subsidiary is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the
Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been
made or had been made only in respect of the purchases that have been made.


 


(f) Notwithstanding
this Section 14.03 or any other provision of this Indenture or the Notes, if a Conversion Rate adjustment becomes effective on any Ex-Dividend
Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record Date would be
treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section 14.02(i) based
on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in this Section
14.03, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder. Instead, such Holder
shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and participate in the related
dividend, distribution or other event giving rise to such adjustment.


 


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


 


(h) In
addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.03, and to the extent permitted by applicable
law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the Company from
time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Company determines that such
increase would be in the Company’s best interest. In addition, to the extent permitted by applicable law and subject to the applicable
rules of any exchange on which any of the Company’s securities are then listed, the Company may (but is not required to) increase
the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with
a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event. Whenever the Conversion
Rate is increased pursuant to either of the preceding two sentences, the Company shall deliver to the Holder of each Note a notice of
the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.


 






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


 


(i) upon
the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest
payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;


 


(ii) upon
the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee, director
or consultant benefit or incentive plan or program of or assumed by the Company or any of the Company’s Subsidiaries;


 


(iii) upon
the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;


 


(iv) for
a third-party tender offer by any party other than a tender offer by one or more of the Company’s Subsidiaries as described in clause
(e) of this Section 14.03;


 


(v) upon
the repurchase of any shares of Common Stock pursuant to an open market share purchase program or other buy-back transaction, including
structured or derivative transactions such as accelerated share repurchase transactions or similar forward derivatives, or other buy-back
transaction, that is not a tender offer or exchange offer of the kind described under clause (e) of this Section 14.03;


 


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


 


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


 


(j) All
calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten thousandth
(1/10,000th) of a share.


 


(k) If
an adjustment to the Conversion Rate otherwise required by this Section 14.03 would result in a change of less than 1% to the Conversion
Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry forward such adjustment, except that all
such deferred adjustments must be given effect immediately upon the earliest to occur of the following: (i) when all such deferred adjustments
would result in an aggregate change of at least 1% to the Conversion Rate, (ii) on the Conversion Date for any Notes (in the case of Physical
Settlement), (iii) on each Trading Day of any Observation Period related to any conversion of Notes (in the case of Cash Settlement or
Combination Settlement), (iv) the Cut-off Date, (v) on any date on which the Company delivers a Redemption Notice and (vi) on the effective
date of any Fundamental Change, in each case, unless the adjustment has already been made.


 






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(l) Whenever
the Conversion Rate is adjusted as herein provided, the Company shall promptly deliver to the Trustee (and the Conversion Agent if not
the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement
of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry
that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment
becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder. Failure to deliver such notice
shall not affect the legality or validity of any such adjustment.


 


(m) For
purposes of this Section 14.03, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock
held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.


 


Section 14.04. Adjustments of Prices. Whenever
any provision of this Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the Daily Conversion
Values or the Daily Settlement Amounts over a span of multiple days (including, without limitation, an Observation Period), the Company
shall make any adjustments to each that the Company reasonably determines to be appropriate to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Record Date, Ex-Dividend Date, Effective
Date or expiration date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices, the
Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.


 


Section 14.05. Shares to Be Fully Paid.
The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient
shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming that
at the time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement
were applicable).


 


Section 14.06. Effect of Recapitalizations,
Reclassifications and Changes of the Common Stock.


 


(a) In
the case of:


 


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


 






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(ii) any
consolidation, merger, combination or similar transaction involving the Company,


 


(iii) any
sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially
as an entirety or


 


(iv) any
statutory share exchange,


 


in each case, as a result of which the Common Stock
would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof)
(any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert
each $1,000 Capitalized Principal Amount of Notes shall be changed into a right to convert such Capitalized Principal Amount of Notes
into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof)
that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned
or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning
the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and,
prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall amend
the Notes and/or execute with the Trustee a supplemental indenture (in each case permitted under Section 10.01(g)) providing for such
change in the right to convert each $1,000 Capitalized Principal Amount of Notes; provided, however, that at and after the
effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid
or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash upon
conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the
Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable
in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive
in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.


 


If the Merger Event causes the Common Stock to
be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any
form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted
average of the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the unit of Reference Property
for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share
of Common Stock. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant
Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 Capitalized
Principal Amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date, multiplied
by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying
cash to converting Holders on or prior to the tenth Business Day immediately following the relevant Conversion Date. The Company shall
notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after
such determination is made.


 






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(b) When
the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.06, the Company shall promptly deliver to
the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or
asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and
that all conditions precedent have been complied with, and shall promptly deliver notice thereof to all Holders. The Company shall cause
notice of the execution of such supplemental indenture to be delivered to each Holder within 20 days after execution thereof. Failure
to deliver such notice shall not affect the legality or validity of such supplemental indenture.


 


(c) The
Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.06. None of the foregoing provisions
shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares
of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such Merger Event.


 


(d) The
above provisions of this Section shall similarly apply to successive Merger Events.


 


Section 14.07. Certain Covenants. (a) The
Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Company
and free from all taxes, liens and charges with respect to the issue thereof, subject to the satisfaction of any obligation of any Applicable
Withholding Agent in respect of withholding taxes in accordance with Section 17.17.


 


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


 


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


 


(c) To
the extent necessary to satisfy its obligations under this Indenture, prior to issuing any shares of Common Stock, the Company will reserve
out of its authorized but unissued shares of Common Stock a sufficient number of shares of Common Stock to permit the conversion of the
Notes.


 






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Section 14.08. Responsibility of Trustee.
The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine the Conversion
Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Conversion
Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall
not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities,
property or cash that may at any time be issued or delivered upon the conversion of any Note; and the Trustee and any other Conversion
Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent shall be responsible for any failure
of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the
Company contained in this Article. Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent shall
be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant
to Section 14.06 relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders
upon the conversion of their Notes after any event referred to in such Section 14.06 or to any adjustment to be made with respect thereto,
but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, the 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.


 


Section 14.09. Stockholder Rights Plans.
If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such
conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan,
as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from the shares
of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted at
the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as provided
in Section 14.03(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.


 


Section 14.10. Limit on Issuance of Shares of
Common Stock Upon Conversion. Notwithstanding anything to the contrary in this Indenture, if an event occurs that would result in
an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing standards
of any national or regional securities exchange that are applicable to the Company, the Company will, at its option, either obtain stockholder
approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations or pay cash in lieu of delivering
any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations based on the Daily VWAP for each Trading
Day of the relevant Observation Period in respect of which, in lieu of delivering shares of Common Stock, the Company pays cash pursuant
to this Section 14.10.


 






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Section 14.11. Exchange in Lieu of Conversion.


 


(a) When
a Holder surrenders its Notes for conversion, the Company may, at its election (an “Exchange Election”), direct the
Conversion Agent to deliver, on or prior to the second Trading Day immediately following the Conversion Date, such Notes to one or more
financial institutions designated by the Company (each, a “Designated Financial Institution”) for exchange in lieu
of conversion. In order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree to timely pay
and/or deliver, as the case may be, in exchange for such Notes, the cash, shares of Common Stock or combination thereof that would otherwise
be due upon conversion pursuant to Section 14.02 or such other amount agreed to by the Holder and the Designated Financial Institution(s)
(the “Conversion Consideration”). If the Company makes an Exchange Election, the Company shall, by the close of business
on the second Trading Day following the relevant Conversion Date, notify in writing the Trustee, the Conversion Agent (if other than the
Trustee) and the Holder surrendering Notes for conversion that the Company has made the Exchange Election, and the Company shall promptly
notify the Designated Financial Institution(s) of the relevant deadline for delivery of the Conversion Consideration and the type of Conversion
Consideration to be paid and/or delivered, as the case may be. For the avoidance of doubt, no failure of the Designated Financial Institution
to deliver the Conversion Consideration shall limit the Holders’ right to convert the Notes pursuant to this Article 14.


 


(b) Any
Notes delivered to the Designated Financial Institution(s) shall remain outstanding, subject to the applicable procedures of the Depositary
in the case of Global Notes. If the Designated Financial Institution(s) agree(s) to accept any Notes for exchange but does not timely
pay and/or deliver, as the case may be, the related Conversion Consideration, or if such Designated Financial Institution(s) does not
accept the Notes for exchange, the Company shall pay and/or deliver, as the case may be, the relevant Conversion Consideration, as, and
at the time, required pursuant to this Indenture as if the Company had not made the Exchange Election.


 


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


 






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Article
15

Repurchase of Notes at Option of Holders


 


Section 15.01. Intentionally Omitted.


 


Section 15.02. Repurchase at Option of Holders
Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time, each Holder shall have the right, at such Holder’s
option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof
that is equal to $1,000 or any integral multiple of $1.00 in excess thereof, on the date (the “Fundamental Change Repurchase
Date”) specified by the Company that is not less than 20 calendar days or more than 35 Business Days following the date of the
Fundamental Change Company Notice at a repurchase price equal to 100% of the Capitalized Principal Amount of such Notes, plus any
accrued interest thereon that has not been paid or capitalized to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental
Change Repurchase Price”), unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to
the Interest Payment Date to which such Regular Record Date relates, in which case the Company shall instead pay in cash at the Cash Interest
Rate the full amount of accrued and unpaid interest to Holders of record as of such Regular Record Date (notwithstanding any prior election
(or deemed election) by the Company to pay such interest pursuant to the Capitalization Method), and the Fundamental Change Repurchase
Price shall be equal to 100% of the Capitalized Principal Amount of Notes to be repurchased pursuant to this Article 15.


 


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


 


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


 


(ii) delivery
of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice
(together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of the
Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition
to receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 


The Fundamental Change Repurchase Notice in respect
of any Notes to be repurchased shall state:


 


(i) in
the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;


 


(ii) the
portion of the principal amount of Notes to be repurchased, which must be $1,000 or any integral multiple of $1.00 in excess thereof;
and


 


(iii) that
the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;


 


provided, however, that if the Notes are Global Notes,
the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.


 






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Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have the right
to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business on the Business
Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 15.03.


 


The Paying Agent shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.


 


(c) On
or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all Holders
of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the “Fundamental
Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of the repurchase right at the
option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall be by first class mail or, in the
case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of the Depositary. Each Fundamental
Change Company Notice shall specify:


 


(i) the
events causing the Fundamental Change;


 


(ii) the
effective date of the Fundamental Change;


 


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


 


(iv) the
Fundamental Change Repurchase Price;


 


(v) the
Fundamental Change Repurchase Date;


 


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


 


(vii) if
applicable, the Conversion Rate and any adjustments to the Conversion Rate;


 


(viii) that
the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the Holder
withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and


 


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


 






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


 


At the Company’s request, the Trustee shall
give such notice in the Company’s name and at the Company’s expense; provided, however, that, in all cases,
the text of such Fundamental Change Company Notice shall be prepared by the Company.


 


(d) Notwithstanding
anything to the contrary in this Article 15, the Company shall not be required to repurchase, or to make an offer to repurchase, the Notes
upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise in compliance with the
requirements for an offer made by the Company as set forth in this Article 15 and such third party purchases all Notes properly surrendered
and not validly withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements for an
offer made by the Company as set forth above. For the avoidance of doubt, no failure of such third party to repurchase the Notes shall
limit the Holders’ repurchase rights or affect the validity of the proceedings for the repurchase of the Notes pursuant to this
Section 15.02.


 


(e) Notwithstanding
the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal
amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case of
an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration
of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase
Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary
shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice
with respect thereto shall be deemed to have been withdrawn.


 


Section 15.03. Withdrawal of Fundamental Change
Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice
of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.03 at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:


 


(i) the
principal amount of the Notes with respect to which such notice of withdrawal is being submitted,


 


(ii) if
Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted,
and


 






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(iii) the
principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice, which portion must be
in principal amounts of $1,000 or any integral multiple of $1.00 in excess thereof;


 


provided, however, that if the Notes are Global Notes,
the notice must comply with appropriate procedures of the Depositary.


 


Section 15.04. Deposit of Fundamental Change
Repurchase Price. (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or if the Company
is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior to 11:00 a.m., New
York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of the Notes to be repurchased
at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the Business
Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase Date
(provided the Holder has satisfied the conditions in Section 15.02) and (ii) the time of book-entry transfer or the delivery of
such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by Section 15.02
by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register; provided,
however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary
or its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds
in excess of the Fundamental Change Repurchase Price.


 


(b) If
by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the Company)
holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental Change Repurchase
Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly withdrawn, (i) such
Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer of the Notes
has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes
will terminate (other than the right to receive the Fundamental Change Repurchase Price and, if applicable, accrued interest that has
not been paid or capitalized).


 


(c) Upon
surrender of a Note that is to be repurchased in part pursuant to Section 15.02, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased portion of the Note
surrendered.


 


Section 15.05. Compliance with Applicable Laws
Upon Repurchase of Notes. Notwithstanding anything to the contrary herein, to the extent that compliance with this Article 15 relating
to the Company’s obligations to repurchase the Notes upon a Fundamental Change would result in a violation of any federal or state
securities laws or other applicable laws or regulations, the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Article 15 by virtue of such conflict. Without limiting the generality
of the foregoing, the Fundamental Change Repurchase Date shall be subject to postponement in order to allow the Company to comply with
applicable law.


 






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Article
16

Optional Redemption


 


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


 


Section 16.02. Notice of Optional Redemption;
Selection of Notes. (a) In case the Company exercises its Optional Redemption right to redeem all or, as the case may be, any part
of the Notes pursuant to Section 16.01, it shall fix a date for redemption (each, a “Redemption Date”) and it or, at
its written request received by the Trustee not less than five calendar days prior to the date such Redemption Notice is to be sent (or
such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall
deliver or cause to be delivered a notice of such Optional Redemption (a “Redemption Notice”) not less than 50 nor
more than 70 Scheduled Trading Days prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or in part; provided
that, if the Company shall give such notice, it shall also give written notice of the Redemption Date to the Trustee; provided further
that if, in accordance with the provisions described in Section 14.02(a)(iii), the Company elects through delivery of a Settlement Notice
to settle all conversions of Notes with a Conversion Date that occurs on or after the date of issuance of a Redemption Notice with respect
to the Notes and prior to the related Redemption Date by Physical Settlement, then the Company may instead elect to choose a Redemption
Date that is a Business Day not less than 15 nor more than 60 calendar days after the date the Company sends such Redemption Notice to
each Holder so to be redeemed as a whole or in part. The Redemption Date must be a Business Day.


 


(b) The
Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, failure to give such Redemption Notice by mail or any defect in the Redemption Notice to
the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption
of any other Note.


 






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(c) Each
Redemption Notice shall specify:


 


(i) the
Redemption Date;


 


(ii) the
Redemption Price;


 


(iii) that
on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if
any, shall cease to accrue on and after the Redemption Date;


 


(iv) the
place or places where such Notes are to be surrendered for payment of the Redemption Price;


 


(v) that
Holders may surrender their Notes for conversion at any time prior to the close of business on the Scheduled Trading Day immediately preceding
the Redemption Date;


 


(vi) the
procedures a converting Holder must follow to convert its Notes and the Settlement Method and Specified Dollar Amount, if applicable;


 


(vii) the
Conversion Rate;


 


(viii) the
CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and


 


(ix) in
case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Redemption
Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.


 


A Redemption Notice shall be irrevocable.


 


(d) If
fewer than all of the outstanding Notes are to be redeemed and the Notes to be redeemed are Global Notes, the Notes to be redeemed shall
be selected by the Depositary in accordance with the applicable procedures of the Depositary. If fewer than all of the outstanding Notes
are to be redeemed and the Notes to be redeemed are not Global Notes, the Trustee shall select the Notes or portions thereof to be redeemed
(in principal amounts of $1,000 or integral multiples of $1.00 in excess thereof) by lot, on a pro rata basis or by another method
the Trustee considers to be fair and appropriate. If any Note selected for partial redemption is submitted for conversion in part after
such selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected
for redemption, subject, in the case of Notes represented by a Global Note, to the Depositary’s applicable procedures.


 






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Section 16.03. Payment of Notes Called for Redemption.
(a) If any Redemption Notice has been given in respect of the Notes in accordance with Section 16.02, the Notes shall become due and payable
on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable Redemption Price. On presentation
and surrender of the Notes at the place or places stated in the Redemption Notice, the Notes shall be paid and redeemed by the Company
at the applicable Redemption Price.


 


(b) Prior
to the open of business on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary of
the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of cash (in immediately
available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes to be redeemed on such
Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption
Date for such Notes. The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company
any funds in excess of the Redemption Price.


 


(c) Upon
surrender of a Note that is to be redeemed in part pursuant to Section 16.02, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unredeemed portion of the Note surrendered.


 


Section 16.04. Restrictions on Redemption.
The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the terms
of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Redemption Price with respect to such Notes).


 


Article
17

Miscellaneous Provisions


 


Section 17.01. Provisions Binding on Company’s
Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Indenture shall bind its successors
and assigns whether so expressed or not.


 


Section 17.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or Officer
of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation
or other entity that shall at the time be the lawful sole successor of the Company.


 






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Section 17.03. Addresses for Notices, Etc.
Any notice or demand that by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders
on the Company shall be deemed to have been sufficiently given or made, for all purposes if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed (until another address is filed by the Company with the
Trustee) to Eos Energy Enterprises, Inc., 3920 Park Avenue, Edison, New Jersey 08820, Attention: General Counsel, or sent electronically
to an email address specified by the Company to the Trustee and the Holders. Any notice, direction, request or demand hereunder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office.


 


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


 


Any notice or communication delivered or to be
delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the
Note Register, or sent electronically to an email address specified by such Holder to the Trustee and the Company, and shall be sufficiently
given to it if so mailed or sent within the time prescribed. Any notice or communication delivered or to be delivered to a Holder of Global
Notes shall be delivered in accordance with the applicable procedures of the Depositary and shall be sufficiently given to it if so delivered
within the time prescribed. Any notice to the Trustee, Paying Agent or Conversion Agent shall be deemed given when actually received by
the Trustee, Paying Agent or Conversion Agent, as the case may be.


 


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


 


Section 17.04. Governing Law; Jurisdiction.
THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS INDENTURE AND EACH NOTE, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).


 


The Company irrevocably consents and agrees, for
the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect
to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Notes may be brought in the
courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until
amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction
of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect
of its properties, assets and revenues.


 


The Company irrevocably and unconditionally waives,
to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings arising out of or in connection with this Indenture brought in the courts of the State of New York or the
courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.


 






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Section 17.05. Evidence of Compliance with Conditions
Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall, if requested by the Trustee, furnish to the Trustee an Officer’s
Certificate and Opinion of Counsel stating that such action is permitted by the terms of this Indenture.


 


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


 


Section 17.06. Legal Holidays. In any case
where any Interest Payment Date, any Redemption Date, any Fundamental Change Repurchase Date or the Maturity Date is not a Business Day,
then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with the
same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.


 


Section 17.07. No Security Interest Created.
Except as provided in Section 7.06, nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute
a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.


 


Section 17.08. Benefits of Indenture. Nothing
in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the Holders, the parties hereto, any Paying
Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim under this Indenture.


 


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


 






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Section 17.10. Authenticating Agent. The
Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and subject to its direction in the authentication
and delivery of Notes in connection with the original issuance thereof and transfers and exchanges of Notes hereunder, including under
Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04,
Section 15.04 and Section 16.03 as fully to all intents and purposes as
though the authenticating agent had been expressly authorized by this Indenture and those Sections to authenticate and deliver Notes.
For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to be authentication
and delivery of such Notes “by the Trustee” and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent shall be deemed to satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant to Section 7.08.


 


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


 


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


 


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


 


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


 


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


 


__________________________,

as Authenticating Agent, certifies that this is one of the Notes described

in the within-named Indenture.


 


By: ____________________

Authorized Officer


 






    83


     


    

 


Section 17.11. Execution in Counterparts; E-signatures.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture
for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for
all purposes. When used herein, 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) shall be deemed to include electronic
signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature 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 under no 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.


 


Section 17.12. Severability. In the event
any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the
validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.


 


Section 17.13. Waiver of Jury Trial. EACH
OF THE COMPANY, EACH HOLDER OF THE NOTES BY ACCEPTANCE HEREOF, AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 17.14. Force Majeure. In no event
shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics or pandemics and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services, including the unavailability of the Federal
Reserve wire or payment facility; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances.


 






    84


     


    

 


Section 17.15. Calculations. Except as otherwise
provided herein, the Company shall be responsible for making all calculations called for under the Notes. These calculations include,
but are not limited to, determinations of the Capitalization Amounts, the Last Reported Sale Prices of the Common Stock, the Daily VWAPs,
the Daily Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate of the Notes.
The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final
and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion Agent,
and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without
independent verification. The Company will forward the calculations to any Holder of Notes upon the request of that Holder at the sole
cost and expense of the Company.


 


Section 17.16. USA PATRIOT Act. The parties
hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order
to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that
they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA
PATRIOT Act.


 


Section 17.17. Withholding Taxes. Each Holder
of a Note agrees that, notwithstanding anything herein to the contrary, the Company, the Paying Agent, the Conversion Agent or the Trustee
(an “Applicable Withholding Agent”) shall have the right to deduct and withhold from any payment or distribution made
with respect to the Notes (or the issuance of shares of Common Stock upon conversion of the Notes) such amounts as are required to be
deducted or withheld with respect to the making of such payment or distribution (or issuance) under any applicable tax law. In the case
of any withholding obligation that is not accompanied by a corresponding payment, distribution or issuance, including deemed dividends
or amounts treated as original issue discount for tax purposes, any such withholding tax may be withheld from subsequent payments on the
Notes (or the issuance of shares of Common Stock upon conversion of the Notes, or dividends or any other amounts payable with respect
to such shares). If an Applicable Withholding Agent is required to remit any withholding tax payments to the applicable Governmental Entity
in respect of such an item of income prior to any such subsequent payment or issuance, the Holder shall promptly upon notice reimburse
the Applicable Withholding Agent for the required withholding tax payment. To the extent that any amounts are deducted or withheld as
described in this Section 17.17, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been
paid to the person in respect of which such deduction or withholding was made. Each Holder agrees to provide to the Company, with a copy
to the Trustee, a fully completed Internal Revenue Service Form W-9 or W-8 (or applicable successor form), with any required attachments,
as well as any other information determined by the Company or the Trustee to be reasonably necessary for an Applicable Withholding Agent
to determine its withholding responsibilities with respect to such Holder, (i) prior to, and as a condition to, becoming a Holder hereunder,
(ii) upon reasonable demand by the Company or the Trustee and (iii) promptly upon learning that any such tax form previously provided
by it has become obsolete or incorrect.


 


Section 17.18. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in
this Indenture by the Trust Indenture Act, such required or deemed provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply
to this Indenture as so modified or to be excluded, as the case may be.


 


[Remainder of page intentionally
left blank]


 




    85


     


    

 


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


 


	 	
     EOS ENERGY ENTERPRISES,
INC.

	 	 
	 	By:	                
	 	Name:	 
	 	Title:	 


 


	 	WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee
	 	 
	 	By:	                 
	 	Name:	 
	 	Title:	 


 




    86


     


    

 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[INCLUDE FOLLOWING LEGEND IF
A GLOBAL NOTE]


 


[UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


[INCLUDE FOLLOWING LEGEND IF
A RESTRICTED SECURITY]


 


[THIS SECURITY AND THE COMMON
STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER AGREES FOR THE BENEFIT OF EOS ENERGY ENTERPRISES, INC. (THE “COMPANY”)
THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT:


 


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


 


(B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR


 


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


 


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


 


THIS SECURITY IS SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN AN INVESTMENT AGREEMENT DATED AS OF JULY 6, 2021 (AS IT MAY BE AMENDED FROM TIME TO TIME), BY
AND AMONG THE COMPANY AND CERTAIN OTHER PARTIES THERETO, COPIES OF WHICH ARE PUBLICLY FILED OR ON FILE WITH THE SECRETARY OF THE COMPANY,
AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.]


 


THIS NOTE HAS BEEN ISSUED
WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED). UPON
WRITTEN REQUEST, THE ISSUER OF THIS NOTE WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE INFORMATION REQUIRED TO BE FURNISHED
BY TREASURY REGULATIONS SECTION 1.1275-3. IN ORDER TO REQUEST SUCH INFORMATION, A HOLDER OF THIS NOTE SHOULD CONTACT THE CHIEF ACCOUNTING
OFFICER AT 3920 PARK AVENUE, EDISON, NJ, 08820, PHONE NUMBER 732-225-8400.


 




    A-1


     


    

 


Eos Energy Enterprises, Inc.



5%/6% Convertible Senior PIK Toggle Note due 2026


 


	No. [_____]	 	Initially $[_________]




 


[CUSIP No. [_________]]


 


Eos Energy Enterprises, Inc., a corporation duly
organized and validly existing under the laws of the State of Delaware (the “Company,” which term includes any successor
corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE
& CO.]2 [_______]3,
or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached hereto]4[of
$[_____]]5, on June 30, 2026, and interest
thereon as set forth below.


 


This Note shall bear interest at the applicable
Cash Interest Rate or PIK Interest Rate from [________], 20[__], or from the most recent date to which interest had been paid or provided
for to, but excluding, the next scheduled Interest Payment Date until June 30, 2026. Interest is payable semi-annually in arrears in cash
at the Cash Interest Rate or by PIK Payments at the PIK Interest Rate, pursuant to Section 2.03(d) of the Indenture, on each June 30 and
December 30, commencing on [________], 20[__], to Holders of record at the close of business on the preceding June 15 and December 15
(whether or not such day is a Business Day), respectively.


 


The Company shall make payments on the Notes in
the manner set forth in the Indenture. The Company has initially designated the Trustee as the Paying Agent, Conversion Agent and Note
Registrar in respect of the Notes and its office in [_____] as a place where Notes may be presented for payment or for registration of
transfer and exchange.


 


Reference is made to the further provisions of
this Note set forth on the reverse hereof, including, without limitation, provisions giving the Holder of this Note the right to convert
this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, on the terms and subject
to the limitations set forth in the Indenture. Such further provisions shall for all purposes have the same effect as though fully set
forth at this place.


 


This Note, and any claim, controversy or dispute
arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of New York (without
regard to the conflicts of laws provisions thereof).


 


In the case of any conflict between this Note and
the Indenture, the provisions of the Indenture shall control and govern.


 


This Note shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been signed manually by the Trustee or a duly authorized authenticating
agent under the Indenture.


 


[Remainder of page intentionally left blank]


 





 






		2	Include if a global note.



		3	Include if a physical note.



		4	Include if a global note.



		5	Include if a physical note.




 




    A-2


     


    

 


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


 


	 	
    EOS ENERGY ENTERPRISES,
INC.

	 	 
	 	By:
	                   
	 	Name:	 
	 	Title:	 


 


	Dated:	 
	 	 
	TRUSTEE’S CERTIFICATE OF AUTHENTICATION	 
	WILMINGTON TRUST, NATIONAL ASSOCIATION	 
	as Trustee, certifies that this is one of the Notes described

 in the within-named Indenture.	 



 


	By:	 	 
	 	Authorized Officer	 




 


 








    A-3


     


    

 


[FORM OF REVERSE OF NOTE]


 


Eos Energy Enterprises, Inc.

5%/6% Convertible Senior PIK Toggle Note due 2026


 


This Note is one of a duly authorized issue of
Notes of the Company, designated as its 5%/6% Convertible Senior PIK Toggle Notes due 2026 (the “Notes”), initially
in the aggregate principal amount of $[102,900,000] (as may be increased by any PIK Payments). Additional Notes may be issued in an unlimited
aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined
in this Note shall have the respective meanings set forth in the Indenture (as amended in accordance herewith, the “Indenture”)
dated as of [____], 2022 between the Company and Wilmington Trust, National Association, as trustee (the “Trustee”).
The originally issued Notes, all PIK Notes, and any additional Notes issued as set forth in the Indenture or this Note shall constitute
a single class.


 


Events of Default.


 


In case certain Events of Default shall have occurred
and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate
principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions and certain exceptions set forth in the Indenture.


 


Payments.


 


Subject to the terms and conditions of the Indenture,
the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental Change Repurchase
Date, the Redemption Price on any Redemption Date and the Capitalized Principal Amount on the Maturity Date, as the case may be, to the
Holder who surrenders a Note to a Paying Agent to collect such payments in respect of the Note. The Company will pay cash amounts in money
of the United States that at the time of payment is legal tender for payment of public and private debts.


 


Amendments and Waivers.


 


The Indenture contains provisions permitting in
certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Notes at the time outstanding, evidenced as in the Indenture provided,
the amendment of the Notes and/or execution of supplemental indentures modifying the terms of the Notes and/or the Indenture as described
therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate principal amount
of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default under
the Indenture and its consequences.


 






    A-4


     


    

 


Right to Payments.


 


Each Holder shall have the right to receive payment
or delivery, as the case may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, this Note at the place,
at the respective times, at the rate and in the lawful money or shares of Common Stock, as the case may be, herein prescribed.


 


Registered Form; Denominations; Transfer and
Exchange.


 


The Notes are issuable in registered form without
coupons in minimum denominations of $1.00 principal amount and integral multiples thereof. At the office or agency of the Company referred
to herein, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged for a like aggregate principal
amount of Notes of other authorized denominations, without payment of any service charge but, if required by the Company or Trustee, with
payment of a sum sufficient to cover any transfer or similar tax that may be imposed in connection therewith as a result of the name of
the Holder of the new Notes issued upon such exchange of Notes being different from the name of the Holder of the old Notes surrendered
for such exchange.


 


Redemption.


 


The Notes shall be redeemable at the Company’s
option on or after June 30, 2024 in accordance with the terms and subject to the conditions specified in the Indenture. No sinking fund
is provided for the Notes.


 


Fundamental Change Repurchase Right.


 


Upon the occurrence of a Fundamental Change, the
Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes or
any portion thereof (in principal amounts of $1,000 or integral multiples of $1.00 in excess thereof) on the Fundamental Change Repurchase
Date at a price equal to the Fundamental Change Repurchase Price.


 


Conversion Rights.


 


Subject to the provisions of the Indenture, the
Holder hereof has the right, at its option prior to the close of business on the Business Day immediately preceding the Maturity Date,
to convert any Notes or portion thereof that is $1,000 or an integral multiple of $1.00 in excess thereof, into cash, shares of Common
Stock or a combination of cash and shares of Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted
from time to time as provided in the Indenture.


 






    A-5


     


    

 


ABBREVIATIONS


 


The following abbreviations, when used in the inscription
of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:


 


TEN COM = as tenants in common 


 


UNIF GIFT MIN ACT = Uniform Gifts to Minors Act


 


CUST = Custodian


 


TEN ENT = as tenants by the entireties 




JT TEN = joint tenants with right of survivorship and not as tenants in common


 





Additional abbreviations may also be used though
not in the above list.


 






    A-6


     


    

 


SCHEDULE A6


 


SCHEDULE OF EXCHANGES OF NOTES



Eos Energy Enterprises, Inc.

5%/6% Convertible Senior PIK Toggle Notes due 2026


 


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


 


	
     

    Date of exchange
	 	
    Amount of decrease
    in principal amount of this Global Note
	 	
    Amount of increase
    in principal amount of this Global Note
	 	
    Principal amount
    of this Global Note following such decrease or increase
	 	
    Signature of
    authorized signatory of Trustee or Custodian

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 



 





 



6
Include if a global note.


 



    A-7


     


    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


Eos Energy Enterprises, Inc.

5%/6% Convertible Senior PIK Toggle Notes due 2026


 


	To:	Eos Energy Enterprises, Inc.	 
	 	3920 Park Avenue	 
	 	Edison, New Jersey 08820	 



 


	cc:	Wilmington Trust, National Association	 
	 	50 South Sixth Street, Suite 1290	 
	 	Minneapolis, Minnesota 55402	 
	 	Attention: Eos Energy Administrator	 



 


The undersigned registered owner of this Note hereby
exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple of $1.00 in
excess thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable,
in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock
issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted
principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If
any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section
14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Note. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.


 


Dated: _____________________                  ________________________________


 


________________________________


Signature(s)


 


___________________________


Signature Guarantee


 


Signature(s) must be guaranteed

by an eligible Guarantor Institution

(banks, stock brokers, savings and

loan associations and credit unions)

with membership in an approved

signature guarantee medallion program

pursuant to Securities and Exchange

Commission Rule 17Ad-15 if shares

of Common Stock are to be issued, or

Notes are to be delivered, other than

to and in the name of the registered holder.


 






    1


     


    

 


Fill in for registration of shares if

to be issued, and Notes if to

be delivered, other than to and in the

name of the registered holder:


 


_________________________


(Name)


 


_________________________


(Street Address)


 


_________________________


(City, State and Zip Code)


Please print name and address


 


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


 


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


 


_________________________


Social Security or Other Taxpayer

Identification Number


 




    2


     


    

 


ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


Eos Energy Enterprises, Inc.

5%/6% Convertible Senior PIK Toggle Notes due 2026


 


	To:	Eos Energy Enterprises, Inc.	 
	 	3920 Park Avenue	 
	 	Edison, New Jersey 08820	 



 


	cc:	Wilmington Trust, National Association	 
	 	50 South Sixth Street, Suite 1290	 
	 	Minneapolis, Minnesota 55402	 
	 	Attention: Eos Energy Administrator	 



 


The undersigned registered owner of this Note hereby
acknowledges receipt of a notice from Eos Energy Enterprises, Inc. (the “Company”) as to the occurrence of a Fundamental
Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay
to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note the applicable Fundamental
Change Repurchase Price. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.


 


In the case of Physical Notes, the certificate
numbers of the Notes to be repurchased are as set forth below:


 


Dated: _____________________


 


	 	________________________________
	 	Signature(s)
	 	_________________________
	 	Social Security or Other Taxpayer
	 	Identification Number
	 	 
	 	Principal amount to be repaid (if less than all):

 $______,000
	 	 
	 	NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.



 




    1


     


    

 


ATTACHMENT 3


 


[FORM OF ASSIGNMENT AND TRANSFER]


 


Eos Energy Enterprises, Inc.

5%/6% Convertible Senior PIK Toggle Notes due 2026


 


For value received ____________________________ hereby sell(s), assign(s)
and transfer(s) unto _________________ (Please insert social security or Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints _____________________ attorney to transfer the said Note on the books of the Company,
with full power of substitution in the premises.


 


In connection with any transfer of the within Note, the undersigned
confirms that such Note is being transferred:


 


 ☐
 To Eos Energy Enterprises, Inc. or a subsidiary thereof; or




 


 ☐
  Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933,
as amended; or




 


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




 




    1


     


    

 


Dated: ________________________


 


_____________________________________


 


_____________________________________


Signature(s)


 


_____________________________________


Signature Guarantee


 


Signature(s) must be guaranteed by an

eligible Guarantor Institution (banks, stock

brokers, savings and loan associations and

credit unions) with membership in an approved

signature guarantee medallion program pursuant

to Securities and Exchange Commission

Rule 17Ad-15 if Notes are to be delivered, other

than to and in the name of the registered holder.


 


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


 


 


2