Exhibit 4.2


 


EXECUTION VERSION




 


 


COLLEGIUM PHARMACEUTICAL, INC.


 


and


 


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


 


as Trustee


 





 



 




FIRST SUPPLEMENTAL INDENTURE


 


Dated as of February 13, 2020




 





 



 


2.625% Convertible Senior Notes due 2026


 


 


 








     


     


    

 


CROSS REFERENCE TABLE*




 


	Trust

                                         Indenture
 Act
 Section


	 	Indenture

                                         Section





	 	 	 	 
	310	(a)(1)	 	N/A
	 	(a)(2)	 	N/A
	 	(a)(3)	 	N/A
	 	(a)(4)	 	N/A
	 	(a)(5)	 	N/A
	 	(b)	 	N/A
	 	(c)	 	N/A
	311	(a)	 	N/A
	 	(b)	 	N/A
	 	(c)	 	N/A
	312	(a)	 	2.08
	 	(b)	 	N/A
	 	(c)	 	N/A
	313	(a)	 	N/A
	 	(b)(1)	 	N/A
	 	(b)(2)	 	N/A
	 	(c)	 	N/A
	 	(d)	 	N/A
	314	(a)	 	3.02(A)
	 	(b)	 	N/A
	 	(c)(1)	 	10.02(A)
	 	(c)(2)	 	10.02(B)
	 	(c)(3)	 	N/A
	 	(d)	 	N/A
	 	(e)	 	10.02(A),
    10.02(B)
	 	(f)	 	N/A
	315	(a)	 	N/A
	 	(b)	 	N/A
	 	(c)	 	N/A
	 	(d)	 	N/A
	 	(e)	 	7.12
	316	(a) (last sentence)	 	2.15
	 	(a)(1)(A)	 	7.06
	 	(a)(1)(B)	 	7.05
	 	(a)(2)	 	N/A
	 	(b)	 	7.08
	 	(c)	 	N/A
	317	(a)(1)	 	7.09
	 	(a)(2)	 	7.10
	 	(b)	 	2.07
	318	(a)	 	N/A
	 	(b)	 	10.17
	 	(c)	 	N/A




 


N/A means not applicable.


* This Cross Reference Table is not part
of the Indenture.


 






     


     


    

 





TABLE OF CONTENTS


 


Page


 




	Article 1.   Definitions; Rules of Construction; Scope and Interpretation of Base Indenture	1
	 	 
	Section 1.01.	Definitions	1
	Section 1.02.	Other Definitions	12
	Section 1.03.	Rules of Construction	13
	Section 1.04.	Interpretation; Scope of Supplemental Indenture; Supersession of Base Indenture	14
	 	 	 
	Article 2.   The Notes	14
	 	 
	Section 2.01.	Form, Dating and Denominations	14
	Section 2.02.	Execution, Authentication and Delivery	15
	Section 2.03.	Initial Notes and Additional Notes	15
	Section 2.04.	Method of Payment	16
	Section 2.05.	Accrual of Interest; Defaulted Amounts; When Payment Date is Not a Business Day	16
	Section 2.06.	Registrar, Paying Agent and Conversion Agent	17
	Section 2.07.	Paying Agent and Conversion Agent to Hold Property in Trust	18
	Section 2.08.	Holder Lists	18
	Section 2.09.	Legends	18
	Section 2.10.	Transfers and Exchanges; Certain Transfer Restrictions	19
	Section 2.11.	Exchange and Cancellation of Notes to Be Converted, Redeemed or Repurchased	23
	Section 2.12.	Replacement Notes	24
	Section 2.13.	Registered Holders; Certain Rights with Respect to Global Notes	24
	Section 2.14.	Cancellation	24
	Section 2.15.	Notes Held by the Company or its Affiliates	24
	Section 2.16.	Temporary Notes	25
	Section 2.17.	Outstanding Notes	25
	Section 2.18.	Repurchases by the Company	26
	Section 2.19.	CUSIP and ISIN Numbers	26
	 	 	 
	Article 3.   Covenants	26
	 	 
	Section 3.01.	Payment on Notes	26
	Section 3.02.	Exchange Act Reports	26
	Section 3.03.	Compliance and Default Certificates	27
	Section 3.04.	Stay, Extension and Usury Laws	27
	Section 3.05.	Corporate Existence	27
	Section 3.06.	Restriction on Acquisition of Notes by the Company and its Affiliates	28
	Section 3.07.	Further Instruments and Acts	28
	 	 	 
	Article 4.   Repurchase and Redemption	28
	 	 
	Section 4.01.	No Sinking Fund	28
	Section 4.02.	Right of Holders to Require the Company to Repurchase Notes upon a  Fundamental Change	28
	Section 4.03.	Right of the Company to Redeem the Notes	33



 






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	Article 5.   Conversion	35
	 	 
	Section 5.01.	Right to Convert	35
	Section 5.02.	Conversion Procedures	39
	Section 5.03.	Settlement upon Conversion	41
	Section 5.04.	Reserve and Status of Common Stock Issued upon Conversion	43
	Section 5.05.	Adjustments to the Conversion Rate	44
	Section 5.06.	Voluntary Adjustments	54
	Section 5.07.	Adjustments to the Conversion Rate in Connection with a Make-Whole Fundamental Change	55
	Section 5.08.	Exchange in Lieu of Conversion	56
	Section 5.09.	Effect of Common Stock Change Event	56
	 	 	 
	Article 6.   Successors	58
	 	 
	Section 6.01.	When the Company May Merge, Etc.	58
	Section 6.02.	Successor Corporation Substituted	59
	Section 6.03.	Exclusion for Asset Transfers with Wholly Owned Subsidiaries	59
	 	 	 
	Article 7.   Defaults and Remedies	59
	 	 
	Section 7.01.	Events of Default	59
	Section 7.02.	Acceleration	61
	Section 7.03.	Sole Remedy for a Failure to Report	62
	Section 7.04.	Other Remedies	63
	Section 7.05.	Waiver of Past Defaults	63
	Section 7.06.	Control by Majority	63
	Section 7.07.	Limitation on Suits	64
	Section 7.08.	Absolute Right of Holders to Receive Payment and Conversion Consideration and Institute Suit for the Enforcement of such Right	64
	Section 7.09.	Collection Suit by Trustee	64
	Section 7.10.	Trustee May File Proofs of Claim	65
	Section 7.11.	Priorities	65
	Section 7.12.	Undertaking for Costs	66
	Section 7.13.	Trustee’s Obligation to Provide Notice of Defaults to Holders	66
	 	 	 
	Article 8.   Amendments, Supplements and Waivers	66
	 	 
	Section 8.01.	Without the Consent of Holders	66
	Section 8.02.	With the Consent of Holders	67
	Section 8.03.	Notice of Amendments, Supplements and Waivers	68
	Section 8.04.	Revocation, Effect and Solicitation of Consents; Special Record Dates; Etc.	68
	Section 8.05.	Notations and Exchanges	69
	Section 8.06.	Trustee to Execute Supplemental Indentures	69



 






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	Article 9.   Satisfaction and Discharge	70
	 	 
	Section 9.01.	Termination of Company’s Obligations	70
	Section 9.02.	Repayment to Company	70
	Section 9.03.	Reinstatement	70
	 	 	 
	Article 10.   Miscellaneous	71
	 	 
	Section 10.01.	Notices	71
	Section 10.02.	Delivery of Officers’ Certificate and Opinion of Counsel as to Conditions Precedent	73
	Section 10.03.	Statements Required in Officers’ Certificate and Opinion of Counsel	73
	Section 10.04.	Rules by the Trustee, the Registrar and the Paying Agent	73
	Section 10.05.	No Personal Liability of Directors, Officers, Employees and Stockholders	73
	Section 10.06.	Governing Law; Waiver of Jury Trial	74
	Section 10.07.	Submission to Jurisdiction	74
	Section 10.08.	No Adverse Interpretation of Other Agreements	74
	Section 10.09.	Successors	74
	Section 10.10.	Force Majeure	74
	Section 10.11.	U.S.A. PATRIOT Act	75
	Section 10.12.	Calculations	75
	Section 10.13.	Severability	75
	Section 10.14.	Counterparts	75
	Section 10.15.	Table of Contents, Headings, Etc.	76
	Section 10.16.	Withholding Taxes	76
	Section 10.17.	Trust Indenture Act Controls	76


 


	Exhibits	 
	 	 
	Exhibit A: Form of Note	A-1
	 	 
	Exhibit B-1: Form of Global Note Legend	B-1





 









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FIRST SUPPLEMENTAL
INDENTURE, dated as of February 13, 2020, between Collegium Pharmaceutical, Inc., a Virginia corporation, as issuer (the “Company”),
and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), to the Base Indenture (as defined
below).


 


This Supplemental Indenture
(as defined below) is being executed and delivered pursuant to Sections 2.1 and 2.2 of the Base Indenture to establish the terms,
and provide for the issuance, of a new series of Securities (as defined in the Base Indenture) constituting the Company’s
2.625% Convertible Senior Notes due 2026 (the “Notes”).


 


Each party to this
Supplemental Indenture agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders
(as defined below) of the Notes.


 


Article
1.      Definitions;
Rules of Construction;

Scope and Interpretation of Base Indenture


 


Section 1.01.    
Definitions.


 


Subject to the last
paragraph of Section 1.03, capitalized terms used in this Supplemental Indenture without definition have the respective
meanings ascribed to them in the Base Indenture. For purposes of the Notes, the following additional definitions will apply and
supersede any conflicting definitions in the Base Indenture.


 


An “Acquisition
Non-Occurrence Event” will be deemed to occur on the first date when either (A) the Asset Purchase Agreement is terminated
in accordance with its terms; or (B) the Board of Directors determines, in its good faith judgment, that the Nucynta Transaction
will not occur; provided, however, that if neither of the events described in clause (A) or (B) has
occurred by the close of business on March 13, 2020, but the Nucynta Transaction has not closed as of such time, then an Acquisition
Non-Occurrence Event will be deemed to occur on March 13, 2020.


 


“Acquisition
Non-Occurrence Redemption” means the redemption of all of the Notes by the Company pursuant to Section 4.03(C).


 


“Acquisition
Non-Occurrence Redemption Observation Period” means, with respect to an Acquisition Non-Occurrence Redemption, the forty
(40) consecutive VWAP Trading Days beginning on, and including, the forty-first (41st) Scheduled Trading Day immediately before
the Redemption Date for such Acquisition Non-Occurrence Redemption.


 


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


 


“Applicable
Premium” means an amount per $1,000 principal amount of Notes equal to eighty percent (80%) of the excess, if any, of
the Redemption Conversion Value over the Initial Conversion Value.


 


“Asset Purchase
Agreement” means that certain asset purchase agreement, dated as of February 6, 2020, between Assertio Therapeutics,
Inc., and the Company, relating to the Nucynta Transaction.


 






    -1-


     


    

 


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


 


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


 


“Base Indenture”
means that certain Indenture, dated as of February 13, 2020, between the Company and the Trustee.


 


“Bid Solicitation
Agent” means the Person who is required to obtain bids for the Trading Price in accordance with Section 5.01(C)(i)(2)
and in the definition of “Trading Price.” The initial Bid Solicitation Agent on the Issue Date will be the Company;
provided, however, that the Company may appoint any other Person (including any of the Company’s Subsidiaries)
to be the Bid Solicitation Agent at any time after the Issue Date without prior notice.


 


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


 


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


 


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


 


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


 


“Common Stock”
means the common stock, $0.001 par value per share, of the Company, subject to Section 5.09.


 


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


 


“Company Order”
means a written request or order signed on behalf of the Company by two (2) of its Officers and delivered to the Trustee.


 


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


 


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


 






    -2-


     


    

 


“Conversion
Rate” initially means 34.2618 shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to
adjustment pursuant to Article 5. Whenever the Indenture refers to the Conversion Rate as of a particular date without setting
forth a particular time on such date, such reference will be deemed to be to the Conversion Rate immediately after the Close of
Business on such date.


 


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


 


“Daily Cash
Amount” means, with respect to any VWAP Trading Day, the lesser of (A) the applicable Daily Maximum Cash Amount; and
(B) the Daily Conversion Value for such VWAP Trading Day.


 


“Daily Conversion
Value” means, with respect to any VWAP Trading Day, one-fortieth (1/40th) of the product of (A) the Conversion Rate on
such VWAP Trading Day; and (B) the Daily VWAP per share of Common Stock on such VWAP Trading Day.


 


“Daily Maximum
Cash Amount” means, with respect to the conversion of any Note, the quotient obtained by dividing (A) the Specified Dollar
Amount applicable to such conversion by (B) forty (40).


 


“Daily Share
Amount” means, with respect to any VWAP Trading Day, the quotient obtained by dividing (A) the excess, if any, of the
Daily Conversion Value for such VWAP Trading Day over the applicable Daily Maximum Cash Amount by (B) the Daily VWAP for such VWAP
Trading Day. For the avoidance of doubt, the Daily Share Amount will be zero for such VWAP Trading Day if such Daily Conversion
Value does not exceed such Daily Maximum Cash Amount.


 


“Daily VWAP”
means, for any VWAP Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading
 “Bloomberg VWAP” on Bloomberg page “COLL <EQUITY> AQR” (or, if such page is not available, its equivalent
successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary
trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share
of Common Stock on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized
independent investment banking firm selected by the Company, which may be the Underwriter). The Daily VWAP will be determined without
regard to after-hours trading or any other trading outside of the regular trading session.


 


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


 


“Default Settlement
Method” means Combination Settlement with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes; provided,
however, that the Company may, from time to time, change the Default Settlement Method by sending notice of the new Default
Settlement Method to the Holders, the Trustee and the Conversion Agent.


 






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


 


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


 


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


 


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


 


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


 


“Exempted
Fundamental Change” means any Fundamental Change with respect to which, in accordance with Section 4.02(I), the
Company does not offer to repurchase any Notes.


 


“Fundamental
Change” means any of the following events:


 


(A)       a
 “person” or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than the Company
or any of its Wholly Owned Subsidiaries, or any employee benefit plans of the Company or any of its Wholly Owned Subsidiaries,
has become and has filed any report with the SEC indicating that such “person” or “group” has become the
direct or indirect “beneficial owner” (as defined below) of shares of the Company’s common equity representing
more than fifty percent (50%) of the voting power of all of the Company’s then-outstanding common equity; provided, however,
that, for purposes of this clause (A), no “person” or “group” will be deemed to be the beneficial
owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person” or “group”
until such tendered securities are accepted for purchase or exchange in such offer;


 


(B)       the
consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person, other than solely to
one or more of the Company’s Wholly Owned Subsidiaries; or (ii) any transaction or series of related transactions in
connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification,
recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired
for, or constitutes solely the right to receive, other securities, cash or other property (other than, in the case of this clause
(B), solely (x) a subdivision or combination of Common Stock, (y) a change in the Common Stock only in par value or from
par value to no par value or no par value to par value or (z) stock splits and stock combinations of the Common Stock that do
not involve the issuance of any other series or class of securities); provided, however, that any merger,
consolidation, share exchange or combination of the Company pursuant to which the Persons that directly or indirectly
 “beneficially owned” (as defined below) all classes of the Company’s common equity immediately before such
transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty
percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as
applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before
such transaction will be deemed not to be a Fundamental Change pursuant to this clause (B);


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    -5-


     


    

 


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


 


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


 


“Indenture”
means the Base Indenture, as amended by this Supplemental Indenture, and as the same may be further amended or supplemented from
time to time with respect to the Notes.


 


“Initial Conversion
Value” means seven hundred and forty dollars and seventy four cents ($740.74).


 


“Interest
Payment Date” means, with respect to a Note, each February 15 and August 15 of each year, commencing on August 15, 2020
(or commencing on such other date specified in the certificate representing such Note). For the avoidance of doubt, the Maturity
Date is an Interest Payment Date.


 


“Issue Date”
means February 13, 2020.


 


“Last Reported
Sale Price” of the Common Stock for any Trading Day means the closing sale price per share (or, if no closing sale price
is reported, the average of the last bid price and the last ask price per share or, if more than one in either case, the average
of the average last bid prices and the average last ask prices per share) of Common Stock on such Trading Day as reported in composite
transactions for the principal U.S. national or regional securities exchange on which the Common Stock is then listed. If the Common
Stock is not listed on a U.S. national or regional securities exchange on such Trading Day, then the Last Reported Sale Price will
be the last quoted bid price per share of Common Stock on such Trading Day in the over-the-counter market as reported by OTC Markets
Group Inc. or a similar organization. If the Common Stock is not so quoted on such Trading Day, then the Last Reported Sale Price
will be the average of the mid-point of the last bid price and the last ask price per share of Common Stock on such Trading Day
from each of at least three (3) nationally recognized independent investment banking firms selected by the Company, which may include
the Underwriter. Neither the Trustee nor the Conversion Agent will have any duty to determine the Last Reported Sale Price.


 


“Make-Whole
Fundamental Change” means (A) a Fundamental Change (determined after giving effect to the proviso immediately after clause
(D) of the definition thereof, but without regard to the proviso to clause (B)(ii) of such definition); or (B) the sending
of a Redemption Notice for an Optional Redemption pursuant to Section 4.03(B) and Section 4.03(G).


 


“Make-Whole
Fundamental Change Conversion Period” has the following meaning:


 


(A)       in
the case of a Make-Whole Fundamental Change pursuant to clause (A) of the definition thereof, the period from, and
including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the
thirty fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective Date (or, if such Make-Whole Fundamental
Change also constitutes a Fundamental Change (other than an Exempted Fundamental Change), to, but excluding, the related
Fundamental Change Repurchase Date); and


 






    -6-


     


    

 


(B)       in
the case of a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the period from, and including,
the Redemption Notice Date for the related Redemption to, and including, the Business Day immediately before the related Redemption
Date;


 


provided, however, that if
the Conversion Date for the conversion of a Note occurs during the Make-Whole Fundamental Change Conversion Period for both a Make-Whole
Fundamental Change occurring pursuant to clause (A) of the definition of “Make-Whole Fundamental Change” and
a Make-Whole Fundamental Change occurring pursuant to clause (B) of such definition, then, notwithstanding anything to the
contrary in Section 5.07, solely for purposes of such conversion, (x) such Conversion Date will be deemed to occur solely
during the Make-Whole Fundamental Change Conversion Period for the Make-Whole Fundamental Change with the earlier Make-Whole Fundamental
Change Effective Date; and (y) the Make-Whole Fundamental Change with the later Make-Whole Fundamental Change Effective Date will
be deemed not to have occurred.


 


“Make-Whole
Fundamental Change Effective Date” means (A) with respect to a Make-Whole Fundamental Change pursuant to clause (A)
of the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (B) with respect
to a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof, the applicable Redemption Notice Date.


 


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


 


“Maturity
Date” means February 15, 2026.


 


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


 


“Note Security”
means any Note or Conversion Share.


 


“Notes”
means the 2.625% Convertible Senior Notes due 2026 issued by the Company pursuant to the Indenture.


 


“Nucynta
Transaction” means the purchase of certain rights and assets and the assumption of certain duties, liabilities and
obligations from Assertio Therapeutics, Inc., pursuant to the Asset Purchase Agreement (as further described in
Company’s prospectus supplement, dated February 10, 2020).


 






    -7-


     


    

 


“Observation
Period” means, with respect to any Note to be converted, (A) subject to clause (B) below, if the Conversion Date
for such Note occurs on or before the forty-fifth (45th) Scheduled Trading Day immediately before the Maturity Date, the forty
(40) consecutive VWAP Trading Days beginning on, and including, the third (3rd) VWAP Trading Day immediately after such Conversion
Date; (B) if such Conversion Date occurs on or after the date the Company has sent a Redemption Notice pursuant to Section 4.03(G)
and before the related Redemption Date, the forty (40) consecutive VWAP Trading Days beginning on, and including, the forty-first
(41st) Scheduled Trading Day immediately before such Redemption Date; and (C) subject to clause (B) above, if such Conversion
Date occurs after the forty-fifth (45th) Scheduled Trading Day immediately before the Maturity Date, the forty (40) consecutive
VWAP Trading Days beginning on, and including, the forty-first (41st) Scheduled Trading Day immediately before the Maturity Date.


 


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


 


“Officers’
Certificate” means a certificate that is signed on behalf of the Company by two (2) of its Officers and that meets the
requirements of Section 10.03.


 


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


 


“Opinion of
Counsel” means an opinion, from legal counsel (including an employee of, or counsel to, the Company or any of its Subsidiaries)
reasonably acceptable to the Trustee, that meets the requirements of Section 10.03, subject to customary qualifications
and exclusions.


 


“Optional
Redemption” means the repurchase of any Note by the Company pursuant to Section 4.03(B).


 


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


 


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


 


“Redemption”
means an Optional Redemption or an Acquisition Non-Occurrence Redemption.


 






    -8-


     


    

 


“Redemption
Conversion Value” means, with respect to an Acquisition Non-Occurrence Redemption, the sum of the Daily Conversion Values
for each VWAP Trading Day in the Acquisition Non-Occurrence Redemption Observation Period for such Acquisition Non-Occurrence Redemption.


 


“Redemption
Date” means the date fixed, pursuant to Section 4.03(E), for the settlement of the repurchase of any Notes by
the Company pursuant to a Redemption.


 


“Redemption
Notice Date” means, with respect to a Redemption, the date on which the Company sends the Redemption Notice for such
Redemption pursuant to Section 4.03(G).


 


“Redemption
Price” means the cash price payable by the Company to redeem any Note upon its Redemption, calculated pursuant to Section
4.03(F).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Settlement
Method” means Cash Settlement, Physical Settlement or Combination Settlement.


 


“Significant
Subsidiary” means, with respect to any Person, any Subsidiary of such Person that constitutes, or any group of
Subsidiaries of such Person that, in the aggregate, would constitute, a “significant subsidiary” (as defined in
Rule 1-02(w) of Regulation S-X under the Exchange Act) of such Person.


 






    -9-


     


    

 


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


 


“Specified
Dollar Amount” means, with respect to the conversion of a Note to which Combination Settlement applies, the maximum cash
amount per $1,000 principal amount of such Note deliverable upon such conversion (excluding cash in lieu of any fractional share
of Common Stock).


 


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


 


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


 


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


 


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


 






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“Trading Price”
of the Notes on any Trading Day means the average of the secondary market bid quotations, expressed as a cash amount per $1,000
principal amount of Notes, obtained by the Bid Solicitation Agent for one million dollars ($1,000,000) (or such lesser amount as
may then be outstanding) in principal amount of Notes at approximately 3:30 p.m., New York City time, on such Trading Day from
three (3) nationally recognized independent securities dealers selected by the Company, which may include the Underwriter; provided,
however, that, if three (3) such bids cannot reasonably be obtained by the Bid Solicitation Agent but two (2) such bids
are obtained, then the average of the two (2) bids will be used, and if only one (1) such bid can reasonably be obtained by the
Bid Solicitation Agent, then that one (1) bid will be used. If, on any Trading Day, (A) the Bid Solicitation Agent cannot reasonably
obtain at least one (1) bid for one million dollars ($1,000,000) (or such lesser amount as may then be outstanding) in principal
amount of Notes from a nationally recognized independent securities dealer; (B) the Company is not acting as the Bid Solicitation
Agent and the Company fails to instruct the Bid Solicitation Agent to obtain bids when required; or (C) the Bid Solicitation Agent
fails to solicit bids when required, then, in each case, the Trading Price per $1,000 principal amount of Notes on such Trading
Day will be deemed to be less than ninety eight percent (98%) of the product of the Last Reported Sale Price per share of Common
Stock on such Trading Day and the Conversion Rate on such Trading Day.


 


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


 


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


 


“Underwriter”
means Jefferies LLC.


 


“Underwriting
Agreement” means that certain Underwriting Agreement, dated February 10, 2020, between the Company and the Underwriter.


 


“VWAP Market
Disruption Event” means, with respect to any date, (A) the failure by the principal U.S. national or regional securities
exchange on which the Common Stock is then listed, or, if the Common Stock is not then listed on a U.S. national or regional securities
exchange, the principal other market on which the Common Stock is then traded, to open for trading during its regular trading session
on such date; or (B) the occurrence or existence, for more than one half hour period in the aggregate, of any suspension or limitation
imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Common
Stock or in any options contracts or futures contracts relating to the Common Stock, and such suspension or limitation occurs or
exists at any time before 1:00 p.m., New York City time, on such date.


 


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


 






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


 


Section 1.02.    
Other Definitions.


 


	Term	 	Defined in Section
	“Additional Shares”	 	5.07(A)
	“Applicable Law”	 	10.16
	“Business Combination Event”	 	6.01(A)
	“Cash Settlement”	 	5.03(A)
	“Combination Settlement”	 	5.03(A)
	“Common Stock Change Event”	 	5.09(A)
	“Conversion Agent”	 	2.06(A)
	“Conversion Consideration”	 	5.03(B)
	“Default Interest”	 	2.05(B)
	“Defaulted Amount”	 	2.05(B)
	“Event of Default”	 	7.01(A)
	“Expiration Date”	 	5.05(A)(v)
	“Expiration Time”	 	5.05(A)(v)
	“Fundamental Change Notice”	 	4.02(E)
	“Fundamental Change Repurchase Right”	 	4.02(A)
	“Initial Notes”	 	2.03(A)
	“Measurement Period”	 	5.01(C)(i)(2)
	“Paying Agent”	 	2.06(A)
	“Physical Settlement”	 	5.03(A)
	“Redemption Notice”	 	4.03(G)
	“Reference Property”	 	5.09(A)
	“Reference Property Unit”	 	5.09(A)
	“Register”	 	2.06(B)
	“Registrar”	 	2.06(A)
	“Reporting Event of Default”	 	7.03(A)
	“Specified Courts”	 	10.07
	“Spin-Off”	 	5.05(A)(iii)(2)
	“Spin-Off Valuation Period”	 	5.05(A)(iii)(2)
	“Stated Interest”	 	2.05(A)
	“Successor Corporation”	 	6.01(A)
	“Successor Person”	 	5.09(A)
	“Tender/Exchange Offer Reference Price”	 	5.05(A)(v)
	“Tender/Exchange Offer Valuation Period”	 	5.05(A)(v)
	“Trading Price Condition”	 	5.01(C)(i)(2)



 






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Section 1.03.    
Rules of Construction.


 


For purposes of the
Indenture:


 


(A)      
“or” is not exclusive;


 


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


 


(C)       
“will” expresses a command;


 


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


 


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


 


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


 


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


 


(H)      
Each Article, Section, clause or paragraph reference in this Supplemental Indenture that is in bolded typeface refers to
the referenced Article, Section, clause or paragraph, as applicable, of this Supplemental Indenture;


 


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


 


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


 


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


 


For purposes of the Indenture, the following
terms of the Trust Indenture Act have the following meanings:


 


(i)       “Commission”
means the SEC;


 


(ii)       “indenture
securities” means the Notes;


 


(iii)       “indenture
security holder” means a Holder;


 


(iv)       “indenture
to be qualified” means the Indenture;


 






    -13-


     


    

 


(v)       “indenture
trustee” or “institutional trustee” means the Trustee; and


 


(vi)       “obligor”
on the indenture securities means the Company.


 


All other terms used
in the Indenture that are defined by the Trust Indenture Act (including by reference to another statute) or the related rules of
the SEC, and not defined in the Indenture, have the respective meanings so defined by the Trust Indenture Act or such rules.


 


Section 1.04.    
Interpretation; Scope of Supplemental Indenture; Supersession of Base Indenture.


 


The amendments to the
Base Indenture made by this Supplemental Indenture will apply solely with respect to the Notes and not with respect to any other
class or series of Securities unless a supplemental indenture with respect to such other Securities specifically incorporates such
amendments. For purposes of the Notes, if any provision of this Supplemental Indenture conflicts with any provision of the Base
Indenture, then this Supplemental Indenture will control to the extent of such conflict, and, for the avoidance of doubt, the following
provisions of the Base Indenture will not apply to the Notes: Articles II, III, IV, V, VI, VIII, IX and X.


 


Article
2.         The
Notes


 


Section 2.01.    
Form, Dating and Denominations.


 


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


 


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


 


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


 


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


 


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


 






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Section 2.02.    
Execution, Authentication and Delivery.


 


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


 


(B)             
Authentication by the Trustee and Delivery.


 


(i)                
No Note will be valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when
an authorized signatory of the Trustee (or a duly appointed authenticating agent) signs the certificate of authentication of such
Note by manual, electronic (i.e., “.pdf”) or facsimile signature.


 


(ii)             
The Trustee will cause an authorized signatory of the Trustee (or a duly appointed authenticating agent) to sign the certificate
of authentication of a Note only if (1) the Company delivers such Note to the Trustee; (2) such Note is executed by the Company
in accordance with Section 2.02(A); (3) the Company delivers a Company Order to the Trustee that (a) requests the Trustee
to authenticate such Note; and (b) sets forth the name of the Holder of such Note and the date as of which such Note is to be authenticated;
and (4) the Trustee receives an Officers’ Certificate and Opinion of Counsel. If such Company Order also requests the Trustee
to deliver such Note to any Holder or to the Depositary, then the Trustee will promptly deliver such Note in accordance with such
Company Order.


 


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


 


Section 2.03.    
Initial Notes and Additional Notes.


 


(A)            
Initial Notes. On the Issue Date, there will be originally issued one hundred forty three million seven hundred fifty
thousand dollars ($143,750,000) aggregate principal amount of Notes, subject to the provisions of the Indenture (including Section
2.02). Notes issued pursuant to this Section 2.03(A), and any Notes issued in exchange therefor or in substitution thereof,
are referred to in the Indenture as the “Initial Notes.”


 


(B)              Additional
Notes. The Company may, subject to the provisions of the Indenture (including Section 2.02), originally issue
additional Notes with the same terms as the initial Notes (except, to the extent applicable, with respect to the issue price,
the date as of which interest begins to accrue on such additional Notes and the first Interest Payment Date of such
additional Notes), in an unlimited principal amount, which additional Notes will, subject to the foregoing, be considered to
be part of the same series of, and rank equally and ratably with all other, Notes issued under the Indenture; provided, however,
that if any such additional Notes are not fungible with other Notes issued under the Indenture for federal income tax or
federal securities laws purposes, then such additional Notes will be identified by a separate CUSIP number or by no CUSIP
number.


 






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Section 2.04.    
Method of Payment.


 


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


 


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


 


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


 


(A)            
Accrual of Interest. Each Note will accrue interest at a rate per annum equal to 2.625% (the “Stated Interest”),
plus any Special Interest that may accrue pursuant to Section 7.03. Stated Interest on each Note will (i) accrue from, and
including, the most recent date to which Stated Interest has been paid or duly provided for (or, if no Stated Interest has theretofore
been paid or duly provided for, the date set forth in the certificate representing such Note as the date from, and including, which
Stated Interest will begin to accrue in such circumstance) to, but excluding, the date of payment of such Stated Interest; and
(ii) be, subject to Sections 4.02(D), 4.03(F) and 5.02(D) (but without duplication of any payment of interest),
payable semi-annually in arrears on each Interest Payment Date, beginning on the first Interest Payment Date set forth in the certificate
representing such Note, to the Holder of such Note as of the Close of Business on the immediately preceding Regular Record Date.
Stated Interest, and, if applicable, Special Interest, on the Notes will be computed on the basis of a 360-day year comprised of
twelve 30-day months.


 






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


 


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


 


Section 2.06.    
Registrar, Paying Agent and Conversion Agent.


 


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


 


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


 


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


 






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


 


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


 


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


 


Section 2.08.    
Holder Lists.


 


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


 


Section 2.09.    
Legends.


 


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


 


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


 






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


 


Section 2.10.    
Transfers and Exchanges; Certain Transfer Restrictions.


 


(A)            
Provisions Applicable to All Transfers and Exchanges.


 


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


 


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


 


(iii)           
The Company, the Trustee and the Note Agents will not impose any service charge on any Holder for any transfer, exchange
or conversion of Notes, but the Company, the Trustee, the Registrar and the Conversion Agent may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge that may be imposed in connection with any transfer, exchange or conversion
of Notes, other than exchanges pursuant to Section 2.11, 2.16 or 8.05 not involving any transfer.


 


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


 


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


 


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


 


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


 


(viii)       
Neither the Trustee nor any Note Agent will have any responsibility for any actions taken or not taken by the Depositary.


 






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(B)             
Transfers and Exchanges of Global Notes.


 


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


 


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


 


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


 


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


 


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


 


(1)              
the Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule
of Exchanges of Interests in the Global Note” forming part of such Global Note (and, if such notation results in such Global
Note having a principal amount of zero, the Company may (but is not required to) instruct the Trustee to cancel such Global Note
pursuant to Section 2.14);


 


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


 


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


 






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(4)               if
such Global Note (or such portion thereof), or any beneficial interest therein, is to be exchanged for one or more Physical
Notes, then the Company will issue, execute and deliver, and the Trustee will authenticate, in each case in accordance with Section
2.02, one or more Physical Notes that (x) are in Authorized Denominations and have an aggregate principal amount equal to
the principal amount of such Global Note to be so exchanged; (y) are registered in such name(s) as the Depositary specifies
(or as otherwise determined pursuant to customary procedures); and (z) bear each legend, if any, required by Section
2.09.


 


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


 


(C)             
Transfers and Exchanges of Physical Notes.


 


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


 


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


 


(1)              
such old Physical Note will be promptly cancelled pursuant to Section 2.14;


 


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


 






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(3)           
in the case of a transfer:


 


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


 


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


 


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


 


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


 






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


 


(A)            
Partial Conversions and Repurchases of Physical Notes. If only a portion of a Physical Note of a Holder is to be
converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental Change, then, as soon as reasonably
practicable after such Physical Note is surrendered for such conversion or repurchase, the Company will cause such Physical Note
to be exchanged, pursuant and subject to Section 2.10(C), for (i) one or more Physical Notes that are in Authorized Denominations
and have an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased,
as applicable, and deliver such Physical Note(s) to such Holder; and (ii) a Physical Note having a principal amount equal to the
principal amount to be so converted or repurchased, as applicable, which Physical Note will be converted or repurchased, as applicable,
pursuant to the terms of the Indenture; provided, however, that the Physical Note referred to in this clause (ii)
need not be issued at any time after which such principal amount subject to such conversion or repurchase, as applicable, is deemed
to cease to be outstanding pursuant to Section 2.17.


 


(B)             
Cancellation of Converted, Redeemed and Repurchased Notes.


 


(i)                
Physical Notes. If a Physical Note (or any portion thereof that has not theretofore been exchanged pursuant to Section
2.11(A)) of a Holder is to be converted pursuant to Article 5 or repurchased pursuant to a Repurchase Upon Fundamental
Change or redeemed pursuant to a Redemption, then, promptly after the later of the time such Physical Note (or such portion) is
deemed to cease to be outstanding pursuant to Section 2.17 and the time such Physical Note is surrendered for such conversion,
repurchase or Redemption, as applicable, (1) such Physical Note will be cancelled pursuant to Section 2.14; and (2) in the
case of a partial conversion or repurchase, the Company will issue, execute and deliver to such Holder, and the Trustee will authenticate,
in each case in accordance with Section 2.02, one or more Physical Notes that (x) are in Authorized Denominations and have
an aggregate principal amount equal to the principal amount of such Physical Note that is not to be so converted or repurchased;
(y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09.


 


(ii)             
Global Notes. If a Global Note (or any portion thereof) is to be converted pursuant to Article 5 or repurchased
pursuant to a Repurchase Upon Fundamental Change or redeemed pursuant to a Redemption, then, promptly after the time such Note
(or such portion) is deemed to cease to be outstanding pursuant to Section 2.17, the Trustee will reflect a decrease of
the principal amount of such Global Note in an amount equal to the principal amount of such Global Note to be so converted, repurchased
or redeemed, as applicable, by notation on the “Schedule of Exchanges of Interests in the Global Note” forming part
of such Global Note (and, if the principal amount of such Global Note is zero following such notation, cancel such Global Note
pursuant to Section 2.14).


 






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Section 2.12.    
Replacement Notes.


 


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


 


Every replacement Note
issued pursuant to this Section 2.12 will be an additional obligation of the Company and will be entitled to all of the
benefits of the Indenture equally and ratably with all other Notes issued under the Indenture.


 


Section 2.13.    
Registered Holders; Certain Rights with Respect to Global Notes.


 


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


 


Section 2.14.    
Cancellation.


 


Without limiting the
generality of Section 3.06, the Company may at any time deliver Notes to the Trustee for cancellation. The Registrar, the
Paying Agent and the Conversion Agent will forward to the Trustee each Note duly surrendered to them for transfer, exchange, payment
or conversion. The Trustee will promptly cancel all Notes so surrendered to it in accordance with its customary procedures. Without
limiting Section 2.03(B), the Company may not originally issue new Notes to replace Notes that it has paid or that have
been cancelled upon transfer, exchange, payment or conversion.


 


Section 2.15.    
Notes Held by the Company or its Affiliates.


 


Without limiting the
generality of Sections 3.06 and 2.17, in determining whether the Holders of the required aggregate principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the Company or any of its Affiliates will be deemed
not to be outstanding; provided, however, that, for purposes of determining whether the Trustee is protected in
relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.


 






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Section 2.16.    
Temporary Notes.


 


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


 


Section 2.17.    
Outstanding Notes.


 


(A)            
Generally. The Notes that are outstanding at any time will be deemed to be those Notes that, at such time, have been
duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee
or delivered to the Trustee for cancellation in accordance with Section 2.14; (ii) assigned a principal amount of zero by
notation on the “Schedule of Exchanges of Interests in the Global Note” forming part of any a Global Note representing
such Note; (iii) paid in full (including upon conversion) in accordance with the Indenture; or (iv) deemed to cease to be outstanding
to the extent provided in, and subject to, clause (B), (C) or (D) of this Section 2.17.


 


(B)             
Replaced Notes. If a Note is replaced pursuant to Section 2.12, then such Note will cease to be outstanding
at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note
is held by a “bona fide purchaser” under applicable law.


 


(C)             
Maturing Notes and Notes Called for Redemption or Subject to Repurchase. If, on a Redemption Date, a Fundamental
Change Repurchase Date or the Maturity Date, the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental
Change Repurchase Price or principal amount, respectively, together, in each case, with the aggregate interest, in each case due
on such date (other than any amounts to be delivered after such date in accordance with the proviso in the second sentence of Section
4.03(E)), then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be
redeemed or repurchased, or that mature, on such date will be deemed, as of such date, to cease to be outstanding, except to the
extent provided in Sections 4.02(D), 4.03(F) or 5.02(D); and (ii) the rights of the Holders of such Notes
(or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right
to receive the Redemption Price, Fundamental Change Repurchase Price or principal amount, as applicable, of, and accrued and unpaid
interest on, such Notes (or such portions thereof), in each case as provided in the Indenture.


 


(D)             Notes
to Be Converted. At the Close of Business on the Conversion Date for any Note (or any portion thereof) to be converted,
such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or interest
due, pursuant to Section 5.03(B) or Section 5.02(D), upon such conversion) be deemed to cease to be
outstanding, except to the extent provided in Section 5.02(D) or Section 5.08.


 






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(E)             
Cessation of Accrual of Interest. Except as provided in Sections 4.02(D), 4.03(F) or 5.02(D),
interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section
2.17, to cease to be outstanding, unless there occurs a default in the payment or delivery of any cash or other property due
on such Note.


 


Section 2.18.    
Repurchases by the Company.


 


Without limiting the
generality of Sections 2.14 and 3.06, the Company or its Subsidiaries may, from time to time, directly or indirectly,
repurchase Notes in open market purchases or otherwise, whether through private or public tender or exchange offers, cash-settled
swaps or other cash-settled derivatives without delivering prior notice to Holders.


 


Section 2.19.    
CUSIP and ISIN Numbers.


 


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


 


Article
3.         Covenants


 


Section 3.01.    
Payment on Notes.


 


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


 


(B)             
Deposit of Funds. Before 1:00 P.M., New York City time, on each Redemption Date (subject to the proviso in the second
sentence of Section 4.03(E)), Fundamental Change Repurchase Date or Interest Payment Date, and on the Maturity Date or any
other date on which any cash amount is due on the Notes, the Company will deposit, or will cause there to be deposited, with the
Paying Agent cash, in funds immediately available on such date, sufficient to pay the cash amount due on the applicable Notes on
such date. The Paying Agent will return to the Company, as soon as practicable, any money not required for such purpose.


 


Section 3.02.    
Exchange Act Reports.


 


(A)             Generally.
The Company will send to the Trustee copies of all reports that the Company is required to file with or furnish to the SEC
pursuant to Section 13(a) or 15(d) of the Exchange Act within fifteen (15) calendar days after the date that the Company is
required to file or furnish the same (after giving effect to all applicable grace periods under the Exchange Act); provided, however,
that the Company need not send to the Trustee any material for which the Company has received, or is seeking in good faith
and has not been denied, confidential treatment by the SEC. Any report that the Company files with or furnishes to the SEC
through the EDGAR system (or any successor thereto) will be deemed to be sent to the Trustee and Holders at the time such
report is so filed or furnished via the EDGAR system (or such successor). Upon the request of any Holder, the Trustee will
provide to such Holder a copy of any report that the Company has sent the Trustee pursuant to this Section 3.02(A),
other than a report that is deemed to be sent to the Trustee pursuant to the preceding sentence. The Company will also comply
with its other obligations under Section 314(a)(1) of the Trust Indenture Act.


 






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(B)             
Trustee’s Disclaimer. The Trustee need not determine whether the Company has filed or furnished any material
via the EDGAR system (or such successor). The sending, filing or furnishing of reports pursuant to Section 3.02(A) will
not be deemed to constitute constructive notice to the Trustee of any information contained, or determinable from information contained,
therein, including the Company’s compliance with any of its covenants under the Indenture (as to which the Trustee is entitled
to rely exclusively on an Officers’ Certificate).


 


Section 3.03.    
Compliance and Default Certificates.


 


(A)            
Annual Compliance Certificate. Within one hundred twenty (120) days after December 31, 2020 and each fiscal year
of the Company ending thereafter, the Company will deliver an Officers’ Certificate to the Trustee stating (i) that the signatory
thereto has supervised a review of the activities of the Company and its Subsidiaries during such fiscal year with a view towards
determining whether any Default or Event of Default has occurred; and (ii) whether, to such signatory’s knowledge, a Default
or Event of Default has occurred or is continuing (and, if so, describing all such Defaults or Events of Default and what action
the Company is taking or proposes to take with respect thereto).


 


(B)             
Default Certificate. If a Default or Event of Default occurs, then the Company will, within thirty (30) days after
its first occurrence, unless such Default or Event of Default is cured as of such time, deliver an Officers’ Certificate
to the Trustee describing the same and what action the Company is taking or proposes to take with respect thereto.


 


Section 3.04.    
Stay, Extension and Usury Laws.


 


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


 


Section 3.05.    
Corporate Existence.


 


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


 


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


 






    -27-


     


    

 


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


 


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


 


Section 3.06.    
Restriction on Acquisition of Notes by the Company and its Affiliates.


 


The Company will promptly
deliver to the Trustee for cancellation all Notes that the Company or any of its Subsidiaries have purchased or otherwise acquired.


 


Section 3.07.    
Further Instruments and Acts.


 


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


 


Article
4.         Repurchase
and Redemption


 


Section 4.01.    
No Sinking Fund.


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


Such Fundamental Change
Notice must state:


 


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


 


(ii)             
the effective date of such Fundamental Change;


 


(iii)            the
procedures that a Holder must follow and the Depositary Procedures that Depositary Participants and Persons holding an
interest in Notes through Depositary Participants must comply to require the Company to repurchase its Notes pursuant to this Section
4.02, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and
withdrawing a Fundamental Change Repurchase Notice


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


(iii)           
Withdrawal of Fundamental Change Repurchase Notice. A Holder that has delivered a Fundamental Change Repurchase Notice
with respect to a Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the
Paying Agent at any time before the Fundamental Change Repurchase Price is paid in full. Such withdrawal notice must state:


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


(I)               
No Requirement to Conduct an Offer to Repurchase Notes if the Fundamental Change Results in the Notes Becoming Convertible
into an Amount of Cash Exceeding the Fundamental Change Repurchase Price. Notwithstanding anything to the contrary in this
Section 4.02, the Company will not be required to send a Fundamental Change Notice or issue a press release pursuant to
Section 4.02(E), or offer to repurchase or repurchase any Notes pursuant to this Section 4.02, in connection with
a Fundamental Change occurring pursuant to clause (B)(ii) (or pursuant to clause (A) that also constitutes a Fundamental
Change occurring pursuant to clause (B)(ii)) of the definition thereof, if (i) such Fundamental Change constitutes a Common
Stock Change Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after such Fundamental
Change, the Notes become convertible, pursuant to Section 5.09(A) and, if applicable, Section 5.07, into consideration
that consists solely of U.S. dollars in an amount per $1,000 aggregate principal amount of Notes that equals or exceeds the Fundamental
Change Repurchase Price per $1,000 aggregate principal amount of Notes (calculated assuming that the same includes accrued interest
to, but excluding, the latest possible Fundamental Change Repurchase Date for such Fundamental Change); and (iii) the Company timely
sends the notice relating to such Fundamental Change required pursuant to Section 5.01(C)(i)(3)(b).


 


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


 






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


 


Section 4.03.    
Right of the Company to Redeem the Notes.


 


(A)            
No Right to Redeem Before February 15, 2023 Except Pursuant to an Acquisition Non-Occurrence Redemption. The Company
may not redeem the Notes at its option at any time before February 15, 2023, except pursuant to an Acquisition Non-Occurrence Redemption.


 


(B)             
Right to Redeem the Notes on or After February 15, 2023 Based on Stock Price Condition. Subject to the terms of this
Section 4.03, the Company has the right, at its election, to redeem all, but not less than all, of the Notes, at any time,
on a Redemption Date on or after February 15, 2023, for a cash purchase price equal to the Redemption Price, but only if the Last
Reported Sale Price per share of Common Stock exceeds one hundred and thirty percent (130%) of the Conversion Price on (i) each
of at least twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and
including, the Trading Day immediately before the Redemption Notice Date for such Redemption; and (ii) the Trading Day immediately
before such Redemption Notice Date. For the avoidance of doubt, the calling of any Notes for Optional Redemption will constitute
a Make-Whole Fundamental Change pursuant to clause (B) of the definition thereof.


 


(C)             
Redemption Upon Acquisition Non-Occurrence Event. If an Acquisition Non-Occurrence Event occurs, then the Company
will have the right, at its election, to redeem all, but not less than all, of the Notes, at any time, on a Redemption Date on
or before May 29, 2020, for a cash purchase price equal to the Redemption Price. For the avoidance of doubt, the calling of any
Notes for an Acquisition Non-Occurrence Redemption will not, in itself, constitute a Make-Whole Fundamental Change.


 


(D)            
Redemption Prohibited in Certain Circumstances. If the principal amount of the Notes has been accelerated (other
than as a result of a failure to pay the related Redemption Price and any related interest pursuant to the proviso to Section
4.03(F)) and such acceleration has not been rescinded on or before the Redemption Date, then (i) the Company may not call for
Redemption or otherwise redeem any Notes pursuant to this Section 4.03; and (ii) the Company will cause any Notes theretofore
surrendered for such Redemption to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any
instructions for book-entry transfer to the Company, the Trustee or the Paying Agent of the applicable beneficial interests in
such Notes in accordance with the Depositary Procedures).


 






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(E)             
Redemption Date. The Redemption Date for any Redemption will be a Business Day of the Company’s choosing that
is no more than sixty five (65), nor less than forty five (45), Scheduled Trading Days after the Redemption Notice Date for such
Redemption. In addition to satisfying the requirement set forth in the preceding sentence, the Redemption Date for an Acquisition
Non-Occurrence Redemption must be on or before May 29, 2020; provided, however, that if the last VWAP Trading Day
of the related Acquisition Non-Occurrence Redemption Observation Period occurs on or after the Redemption Date, then the Company
may postpone delivery of the Redemption Price otherwise due on such Redemption Date to the Business Day immediately after such
last VWAP Trading Day.


 


(F)             
Redemption Price. The Redemption Price for any Note called for (i) Optional Redemption is an amount in cash equal
to the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Redemption Date for such
Optional Redemption; and (ii) Acquisition Non-Occurrence Redemption will be one hundred and one percent (101%) of the principal
amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Redemption Date for such Acquisition Non-Occurrence
Redemption, plus the Applicable Premium; provided, however, that if the Redemption Date for an Optional Redemption
or an Acquisition Non-Occurrence Redemption is after a Regular Record Date and on or before the next Interest Payment Date, then
(i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption,
to receive, on or, at the Company’s election, before such Interest Payment Date, the unpaid interest that would have accrued
on such Note to, but excluding, such Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding
through such Interest Payment Date, if such Redemption Date is before such Interest Payment Date); and (ii) the Redemption Price
will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date. For the avoidance of doubt,
if an Interest Payment Date is not a Business Day within the meaning of Section 2.05(C) and such Redemption Date occurs
on the Business Day immediately after such Interest Payment Date, then (x) accrued and unpaid interest on Notes to, but excluding,
such Interest Payment Date will be paid, in accordance with Section 2.05(C), on the next Business Day to Holders as of the
Close of Business on the immediately preceding Regular Record Date; and (y) the Redemption Price will include interest on Notes
to be redeemed from, and including, such Interest Payment Date to, but excluding, such Redemption Date. For the avoidance of doubt,
the Applicable Premium will not be paid on any Note that is called for Acquisition Non-Occurrence Redemption if that Note is converted.


 


(G)            
Redemption Notice. To call any Notes for Redemption, the Company must (x) send to each Holder of such Notes, the
Trustee and the Paying Agent a written notice of such Redemption (a “Redemption Notice”) and (y) substantially
contemporaneously therewith, issue a press release through such national newswire service as the Company then uses containing the
information set forth in the Redemption Notice.


 


Such Redemption Notice
must state:


 


(i)                
that the Notes have been called for Redemption, briefly describing the Company’s applicable Redemption right under
the Indenture;


 


(ii)             
the Redemption Date for such Redemption;


 






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(iii)           
the Redemption Price per $1,000 principal amount of Notes for such Redemption (and, if the Redemption Date is after a Regular
Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant
to the proviso to Section 4.03(F));


 


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


 


(v)              
that Notes called for Redemption may be converted at any time before the Close of Business on the Business Day immediately
before the Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time
until such time as the Company pays such Redemption Price in full);


 


(vi)            
the Conversion Rate in effect on the Redemption Notice Date for such Redemption, including any increase thereto as a result
of the Redemption Notice pursuant to Section 5.07;


 


(vii)         
the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs on or after such Redemption
Notice Date and before such Redemption Date; and


 


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


 


On or before the Redemption
Notice Date, the Company will send a copy of such Redemption Notice to the Trustee and the Paying Agent.


 


(H)            
Payment of the Redemption Price. Without limiting the Company’s obligation to deposit the Redemption Price
by the time proscribed by Section 3.01(B), the Company will cause the Redemption Price for a Note subject to Redemption
to be paid to the Holder thereof on or before the applicable Redemption Date, subject to the proviso in the second sentence of
Section 4.03(E). For the avoidance of doubt, interest payable pursuant to the proviso to Section 4.03(F) on any Note
(or portion thereof) subject to Redemption must be paid pursuant to such proviso.


 


Article
5.         Conversion


 


Section 5.01.    
Right to Convert.


 


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


 


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


 






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(C)             
When Notes May Be Converted.


 


(i)                 Generally.
Subject to Section 5.01(C)(ii), a Note may be converted only in the following circumstances:


 


(1)              
Conversion upon Satisfaction of Common Stock Sale Price Condition. A Holder may convert its Notes during any calendar
quarter commencing after the calendar quarter ending on March 31, 2020 (and only during such calendar quarter), if the Last Reported
Sale Price per share of Common Stock exceeds one hundred and thirty percent (130%) of the Conversion Price for each of at least
twenty (20) Trading Days (whether or not consecutive) during the thirty (30) consecutive Trading Days ending on, and including,
the last Trading Day of the immediately preceding calendar quarter.


 


(2)              
Conversion upon Satisfaction of Note Trading Price Condition. A Holder may convert its Notes during the five (5)
consecutive Business Days immediately after any ten (10) consecutive Trading Day period (such ten (10) consecutive Trading Day
period, the “Measurement Period”) if the Trading Price per $1,000 principal amount of Notes, as determined by
the Bid Solicitation Agent following a request by a Holder in accordance with the procedures set forth below, for each Trading
Day of the Measurement Period was less than ninety eight percent (98%) of the product of the Last Reported Sale Price per share
of Common Stock on such Trading Day and the Conversion Rate on such Trading Day. The condition set forth in the preceding sentence
is referred to in the Indenture as the “Trading Price Condition.”


 


The Trading Price will be
determined by the Bid Solicitation Agent pursuant to this Section 5.01(C)(i)(2) and the definition of “Trading
Price.” The Bid Solicitation Agent (if not the Company) will have no obligation to determine the Trading Price of the
Notes unless the Company has requested such determination in writing, and the Company will have no obligation to make such
request (or seek bids itself) unless a Holder of at least five million dollars ($5,000,000) in aggregate principal amount of
the Notes (or such lesser principal amount as may be then outstanding) provides the Company with reasonable evidence that the
Trading Price per $1,000 principal amount of Notes would be less than ninety eight percent (98%) of the product of the Last
Reported Sale Price per share of Common Stock and the Conversion Rate. If such a Holder provides such evidence, then the
Company will (if acting as Bid Solicitation Agent), or will instruct the Bid Solicitation Agent to, determine the Trading
Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000
principal amount of Notes is greater than or equal to ninety eight percent (98%) of the product of the Last Reported Sale
Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day. If the Trading Price
Condition has been met as set forth above, then the Company will notify the Holders, the Trustee and the Conversion Agent of
the same. If, on any Trading Day after the Trading Price Condition has been met as set forth above, the Trading Price per
$1,000 principal amount of Notes is greater than or equal to ninety eight percent (98%) of the product of the Last Reported
Sale Price per share of Common Stock on such Trading Day and the Conversion Rate on such Trading Day, then the Company will
notify the Holders, the Trustee and the Conversion Agent of the same and, thereafter, the Bid Solicitation Agent (if not the
Company) will (or, if the Company is acting as the Bid Solicitation Agent, the Company will) have no obligation to solicit
bids as provided above, and the Company will have no obligation to request the Bid Solicitation Agent (if not the Company) to
solicit such bids, in each case until another Holder request is made as provided above.


 






    -36-


     


    

 


(3)              
Conversion upon Specified Corporate Events.


 


(a)              
Certain Distributions. If the Company elects to:


 


(I)               
distribute, to all or substantially all holders of Common Stock, any rights, options or warrants (other than rights issued
pursuant to a stockholder rights plan, so long as such rights have not separated from the Common Stock and are not exercisable
until the occurrence of a triggering event, except that such rights will be deemed to be distributed under this clause (I)
upon their separation from the Common Stock or upon the occurrence of such triggering event) entitling them, for a period of not
more than sixty (60) calendar days after the record date of such distribution, to subscribe for or purchase shares of Common Stock
at a price per share that is less than the average of the Last Reported Sale Prices per share of Common Stock for the ten (10)
consecutive Trading Days ending on, and including, the Trading Day immediately before the date such distribution is announced (determined
in the manner set forth in the third paragraph of Section 5.05(A)(ii)); or


 


(II)             
distribute, to all or substantially all holders of Common Stock, assets or securities of the Company or rights to purchase
the Company’s securities, which distribution per share of Common Stock has a value, as reasonably determined by the Company
in good faith, exceeding ten percent (10%) of the Last Reported Sale Price per share of Common Stock on the Trading Day immediately
before the date such distribution is announced,


 


then, in either case, (x)
the Company will send notice of such distribution, and of the related right to convert Notes, to Holders, the Trustee and the
Conversion Agent at least forty five (45) Scheduled Trading Days before the Ex-Dividend Date for such distribution (or, if
later in the case of any such separation of rights issued pursuant to a stockholder rights plan or the occurrence of any such
triggering event under a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such
separation or triggering event has occurred or will occur); and (y) once the Company has sent such notice, Holders may
convert their Notes at any time until the earlier of the Close of Business on the Business Day immediately before such
Ex-Dividend Date and the Company’s announcement that such distribution will not take place; provided, however,
that the Notes will not become convertible pursuant to clause (y) above (but the Company will be required to send notice of
such distribution pursuant to clause (x) above) on account of such distribution if each Holder participates, at the same time
and on the same terms as holders of Common Stock, and solely by virtue of being a Holder, in such distribution without having
to convert such Holder’s Notes and as if such Holder held a number of shares of Common Stock equal to the product of
(i) the Conversion Rate in effect on the record date for such distribution; and (ii) the aggregate principal amount
(expressed in thousands) of Notes held by such Holder on such date.


 






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(b)              
Certain Corporate Events. If a Fundamental Change, Make-Whole Fundamental Change (other than a Make-Whole Fundamental
Change pursuant to clause (B) of the definition thereof) or Common Stock Change Event occurs (other than a merger or other
business combination transaction that is effected solely to change the Company’s jurisdiction of incorporation and that does
not constitute a Fundamental Change or a Make-Whole Fundamental Change), then, in each case, Holders may convert their Notes at
any time from, and including, the effective date of such transaction or event to, and including, the thirty fifth (35th) Trading
Day after such effective date (or, if such transaction or event also constitutes a Fundamental Change (other than an Exempted Fundamental
Change), to, but excluding, the related Fundamental Change Repurchase Date); provided, however, that if the Company
does not provide the notice referred to in the immediately following sentence by such effective date, then the last day on which
the Notes are convertible pursuant to this sentence will be extended by the number of Business Days from, and including, such effective
date to, but excluding, the date the Company provides such notice. No later than such effective date, the Company will send notice
to the Holders, the Trustee and the Conversion Agent of such transaction or event, such effective date and the related right to
convert Notes.


 


(4)              
Conversion upon Redemption. If the Company calls the Notes for Redemption, then the Holder of such Note may convert
such Note at any time before the Close of Business on the Business Day immediately before the related Redemption Date (or, if the
Company fails to pay the applicable Redemption Price due on such Redemption Date in full, at any time until such time as the Company
pays such Redemption Price in full).


 


(5)              
Conversions During Free Convertibility Period. A Holder may convert its Notes at any time from, and including, August
15, 2025 until the Close of Business on the Scheduled Trading Day immediately before the Maturity Date.


 


For the avoidance of doubt,
the Notes may become convertible pursuant to any one or more of the preceding sub-paragraphs of this Section
5.01(C)(i) and the Notes ceasing to be convertible pursuant to a particular sub-paragraph of this Section
5.01(C)(i) will not preclude the Notes from being convertible pursuant to any other sub-paragraph of this Section
5.01(C)(i).


 






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


 


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


 


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


 


(3)              
if the Company calls any Note for Redemption pursuant to Section 4.03, then the Holder of such Note may not convert
such Note after the Close of Business on the Business Day immediately before the applicable Redemption Date, except to the extent
the Company fails to pay the applicable Redemption Price for such Note in accordance with the Indenture; and


 


(4)              
if a Fundamental Change Repurchase Notice is validly delivered pursuant to Section 4.02(F) with respect to any Note,
then such Note may not be converted, except to the extent (a) such Note is not subject to such notice; (b) such notice is withdrawn
in accordance with Section 4.02(F); or (c) the Company fails to pay the Fundamental Change Repurchase Price for such Note
in accordance with the Indenture.


 


Section 5.02.    
Conversion Procedures.


 


(A)            
Generally.


 


(i)                
Global Notes. To convert a beneficial interest in a Global Note that is convertible pursuant to Section 5.01(C),
the owner of such beneficial interest must (1) comply with the Depositary Procedures for converting such beneficial interest (at
which time such conversion will become irrevocable); and (2) pay any amounts due pursuant to Section 5.02(D) or Section
5.02(E).


 


(ii)             
Physical Notes. To convert all or a portion of a Physical Note that is convertible pursuant to Section 5.01(C),
the Holder of such Note must (1) complete, manually sign and deliver to the Conversion Agent the conversion notice attached to
such Physical Note or a facsimile of such conversion notice; (2) deliver such Physical Note to the Conversion Agent (at which time
such conversion will become irrevocable); (3) furnish any endorsements and transfer documents that the Company or the Conversion
Agent may require; and (4) pay any amounts due pursuant to Section 5.02(D) or Section 5.02(E).


 






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(B)              Effect
of Converting a Note. At the Close of Business on the Conversion Date for a Note (or any portion thereof) to be
converted, such Note (or such portion) will (unless there occurs a Default in the delivery of the Conversion Consideration or
interest due, pursuant to Section 5.03(B) or Section 5.02(D), upon such conversion) be deemed to cease to be
outstanding (and, for the avoidance of doubt, no Person will be deemed to be a Holder of such Note (or such portion thereof)
as of the Close of Business on such Conversion Date), except to the extent provided in Section 5.02(D).


 


(C)             
Holder of Record of Conversion Shares. The Person in whose name any share of Common Stock is issuable upon conversion
of any Note will be deemed to become the holder of record of such share as of the Close of Business on (i) the Conversion Date
for such conversion, in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation Period for such conversion,
in the case of Combination Settlement.


 


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


 


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


 



    -40-


     


    





 


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


 


Section 5.03.    
Settlement upon Conversion.


 


(A)            
Settlement Method. Upon the conversion of any Note, the Company will settle such conversion by paying or delivering,
as applicable and as provided in this Article 5, either (x) shares of Common Stock, together, if applicable, with cash in
lieu of fractional shares as provided in Section 5.03(B)(i)(1) (a “Physical Settlement”); (y) solely
cash as provided in Section 5.03(B)(i)(2) (a “Cash Settlement”); or (z) a combination of cash and shares
of Common Stock, together, if applicable, with cash in lieu of fractional shares as provided in Section 5.03(B)(i)(3) (a
 “Combination Settlement”).


 


The Company will have
the right to elect the Settlement Method applicable to any conversion of a Note; provided, however, that:


 


(i)                
subject to clause (iii) below, all conversions of Notes with a Conversion Date that occurs on or after August 15,
2025 will be settled using the same Settlement Method, and the Company will send notice of such Settlement Method to Holders and
the Conversion Agent no later than the Open of Business on August 15, 2025;


 


(ii)               
subject to clause (iii) below, if the Company elects a Settlement Method with respect to the conversion of any Note
whose Conversion Date occurs before August 15, 2025, then the Company will send notice of such Settlement Method to the Holder
of such Note and the Conversion Agent no later than the Close of Business on the Business Day immediately after such Conversion
Date;


 


(iii)              
if the Notes are called for Redemption, then (1) the Company will specify, in the related Redemption Notice sent pursuant
to Section 4.03(G), the Settlement Method that will apply to all conversions of Notes with a Conversion Date that occurs
on or after the related Redemption Notice Date and before the related Redemption Date; and (2) if such Redemption Date occurs on
or after August 15, 2025, then such Settlement Method must be the same Settlement Method that, pursuant to clause (i) above,
applies to all conversions of Notes with a Conversion Date that occurs on or after August 15, 2025;


 


(iv)              
the Company will use the same Settlement Method for all conversions of Notes with the same Conversion Date (and, for the
avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to conversions of Notes with
different Conversion Dates, except as provided in clause (i) or (iii) above);


 


(v)               
if the Company does not timely elect a Settlement Method with respect to the conversion of a Note, then the Company will
be deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election
will not constitute a Default or Event of Default);


 






    - 41 -


     


    

 


(vi)              
if the Company timely elects Combination Settlement with respect to the conversion of a Note but does not timely notify
the Holder of such Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such conversion will be
deemed to be $1,000 per $1,000 principal amount of Notes (and, for the avoidance of doubt, the failure to timely send such notification
will not constitute a Default or Event of Default); and


 


(vii)             
the Settlement Method will be subject to Section 5.09(A)(2).


 


In addition, the Company
will have the right, exercisable at its election by sending notice of such exercise to the Holders (with a copy to the Trustee
and the Conversion Agent), to irrevocably fix the Settlement Method that will apply to all conversions of Notes with a Conversion
Date that occurs on or after the date such notice is sent to Holders, provided that such Settlement Method must be a Settlement
Method that the Company is then permitted to elect (for the avoidance of doubt, including pursuant to, and subject to, the other
provisions of this Section 5.03(A)). Such notice, if sent, must set forth the applicable Settlement Method and expressly
state that the election is irrevocable and applicable to all conversions of Notes with a Conversion Date that occurs on or after
the date such notice is sent to Holders. For the avoidance of doubt, such an irrevocable election, if made, will be effective without
the need to amend the Indenture or the Notes, including pursuant to Section 8.01(G) (it being understood, however, that
the Company may nonetheless choose to execute such an amendment at its option).


 


(B)             
Conversion Consideration.


 


(i)                
Generally. Subject to Section 5.03(B)(ii) and Section 5.03(B)(iii), the type and amount of consideration
(the “Conversion Consideration”) due in respect of each $1,000 principal amount of a Note to be converted will
be as follows:


 


(1)              
if Physical Settlement applies to such conversion, a number of shares of Common Stock equal to the Conversion Rate in effect
on the Conversion Date for such conversion;


 


(2)              
if Cash Settlement applies to such conversion, cash in an amount equal to the sum of the Daily Conversion Values for each
VWAP Trading Day in the Observation Period for such conversion; or


 


(3)              
if Combination Settlement applies to such conversion, consideration consisting of (a) a number of shares of Common Stock
equal to the sum of the Daily Share Amounts for each VWAP Trading Day in the Observation Period for such conversion; and (b) an
amount of cash equal to the sum of the Daily Cash Amounts for each VWAP Trading Day in such Observation Period.


 


(ii)              Cash
in Lieu of Fractional Shares. If Physical Settlement or Combination Settlement applies to the conversion of any Note and
the number of shares of Common Stock deliverable pursuant to Section 5.03(B)(i) upon such conversion is not a whole
number, then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the
other consideration due upon such conversion, cash in lieu of the related fractional share in an amount equal to the product
of (1) such fraction and (2) (x) the Daily VWAP on the Conversion Date for such conversion (or, if such Conversion Date is
not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the Daily
VWAP on the last VWAP Trading Day of the Observation Period for such conversion, in the case of Combination Settlement.


 






    - 42 -


     


    

 


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


 


(iv)            
Notice of Calculation of Conversion Consideration. If Cash Settlement or Combination Settlement applies to the conversion
of any Note, then the Company will determine the Conversion Consideration due thereupon promptly following the last VWAP Trading
Day of the applicable Observation Period and will promptly thereafter send notice to the Trustee and the Conversion Agent of the
same and the calculation thereof in reasonable detail. Neither the Trustee nor the Conversion Agent will have any duty to make
any such determination.


 


(C)             
Delivery of the Conversion Consideration. Except as set forth in Sections 5.05(A), 5.05(D) and 5.09,
the Company will pay or deliver, as applicable, the Conversion Consideration due upon the conversion of any Note to the Holder
as follows: (i) if Cash Settlement or Combination Settlement applies to such conversion, on or before the second (2nd) Business
Day immediately after the last VWAP Trading Day of the Observation Period for such conversion; and (ii) if Physical Settlement
applies to such conversion, on or before the second (2nd) Business Day immediately after the Conversion Date for such conversion.


 


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


 


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


 


(A)             Stock
Reserve. At all times when any Notes are outstanding, the Company will reserve, out of its authorized but unissued and
unreserved shares of Common Stock, a number of shares of Common Stock sufficient to permit the conversion of all
then-outstanding Notes, assuming (x) Physical Settlement will apply to such conversion; and (y) the Conversion Rate is
increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 5.07.


 



    - 43 -


     


    

 





(B)             
Status of Conversion Shares; Listing. Each Conversion Share, if any, delivered upon conversion of any Note will be
a newly issued or treasury share (except that any Conversion Share delivered by a designated financial institution pursuant to
Section 5.08 need not be a newly issued or treasury share) and will be duly and validly issued, fully paid, non-assessable,
free from preemptive rights and free of any lien or adverse claim (except to the extent of any lien or adverse claim created by
the action or inaction of the Holder of such Note or the Person to whom such Conversion Share will be delivered). If the Common
Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation system, then the Company will cause each
Conversion Share, when delivered upon conversion of any Note, to be admitted for listing on such exchange or quotation on such
system.


 


Section 5.05.    
Adjustments to the Conversion Rate.


 


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


 


(i)                
Stock Dividends, Splits and Combinations. If the Company issues solely shares of Common Stock as a dividend or distribution
on all or substantially all shares of the Common Stock, or if the Company effects a stock split or a stock combination of the Common
Stock (in each case excluding an issuance solely pursuant to a Common Stock Change Event, as to which Section 5.09 will
apply), then the Conversion Rate will be adjusted based on the following formula:


 





 


where:


 


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




 






    - 44 -


     


    

 


If any dividend, distribution,
stock split or stock combination of the type described in this Section 5.05(A)(i) is declared or announced, but not so paid
or made, then the Conversion Rate will be readjusted, effective as of the date the Board of Directors determines not to pay such
dividend or distribution or to effect such stock split or stock combination, to the Conversion Rate that would then be in effect
had such dividend, distribution, stock split or stock combination not been declared or announced.


 


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


 





 


where:


 







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






 


		OS	=	the number of shares of Common Stock outstanding immediately before the Open of Business on such Ex-Dividend Date;



 


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



 


		Y	=	a number of shares of Common Stock obtained by dividing (x) the aggregate price payable to exercise such rights, options or warrants
by (y) the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending
on, and including, the Trading Day immediately before the date such distribution is announced.



 



    - 45 -


     


    

 





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


 


For purposes of this Section
5.05(A)(ii) and Section 5.01(C)(i)(3)(a)(I), in determining whether any rights, options or warrants entitle holders
of Common Stock to subscribe for or purchase shares of Common Stock at a price per share that is less than the average of the Last
Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and including, the Trading
Day immediately before the date the distribution of such rights, options or warrants is announced, and in determining the aggregate
price payable to exercise such rights, options or warrants, there will be taken into account any consideration the Company receives
for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, if not cash,
to be determined by the Company in good faith.


 


(iii)           
Spin-Offs and Other Distributed Property.


 


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


 


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


 


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


 


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


 


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


 


(y)        a
distribution solely pursuant to a tender offer or exchange offer for shares of Common Stock, as to which Section 5.05(A)(v)
will apply; and


 


(z)         a
distribution solely pursuant to a Common Stock Change Event, as to which Section 5.09 will apply,


 






    - 46 -


     


    

 


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


 





 


where:


 


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







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









 


		SP	=	the average of the Last Reported Sale Prices per share of Common Stock for the ten (10) consecutive Trading Days ending on, and
including, the Trading Day immediately before such Ex-Dividend Date; and



 


		FMV	=	the fair market value (as determined by the Company in good faith), as of such Ex-Dividend Date, of the shares of Capital Stock,
evidences of indebtedness, assets, property, rights, options or warrants distributed per share of Common Stock pursuant to such
distribution;



 


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


 


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


 






    - 47 -


     


    

 


(2)              Spin-Offs.
If the Company distributes or dividends shares of Capital Stock of any class or series, or similar equity interests, of or
relating to a Subsidiary or other business unit of the Company to all or substantially all holders of the Common Stock (other
than solely pursuant to (x) a Common Stock Change Event, as to which Section 5.09 will apply; or (y) a tender offer or
exchange offer for shares of Common Stock, as to which Section 5.05(A)(v) will apply), and such Capital Stock or
equity interests are listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S.
national securities exchange (a “Spin-Off”), then the Conversion Rate will be increased based on the
following formula:


 





 


where:


 


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




 


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



 


		SP	=	the average of the Last Reported Sale Prices per share of Common Stock for each Trading Day in the Spin-Off Valuation Period.



 


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


 






    - 48 -


     


    

 


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


 


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


 





 


where:


 


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




 


		SP	=	the Last Reported Sale Price per share of Common Stock on the Trading Day immediately before such Ex-Dividend Date; and



 


		D	=	the cash amount distributed per share of Common Stock in such dividend or distribution;



 


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


 


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


 






    - 49 -


     


    

 


(v)               Tender
Offers or Exchange Offers. If the Company or any of its Subsidiaries makes a payment in respect of a tender offer or
exchange offer for shares of Common Stock, which tender offer or exchange offer is subject to the then-applicable tender
offer rules under the Exchange Act (other than solely pursuant to an odd-lot tender offer pursuant to Rule 13e-4(h)(5) under
the Exchange Act or any successor rule thereto), and the value (determined as of the Expiration Time by the Company in good
faith) of the cash and other consideration paid per share of Common Stock in such tender or exchange offer exceeds the
average (such average, the “Tender/Exchange Offer Reference Price”) of the Last Reported Sale Prices per
share of Common Stock over the ten (10) consecutive Trading Day period (the “Tender/Exchange Offer Valuation
Period”) beginning on, and including, the Trading Day immediately after the last date (such last date, the
 “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer (as
it may be amended), then the Conversion Rate will be increased based on the following formula:


 





 


where:


 


	 	CR0	=	the
    Conversion Rate in effect immediately before the time (the“Expiration Time”)
    such tender or exchange offer expires;
	 
	 	CR1	=	the
    Conversion Rate in effect immediately after the Expiration Time;
	 




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



 


	 	OS0	=	the
    number of shares of Common Stock outstanding immediately before the Expiration Time (including all shares of Common Stock
    accepted for purchase or exchange in such tender or exchange offer);
	 
	 	OS1	=	the
    number of shares of Common Stock outstanding immediately after the Expiration Time (excluding all shares of Common Stock accepted
    for purchase or exchange in such tender or exchange offer); and




 


		SP	=	the Tender/Exchange Offer Reference Price;



 


provided, however,
that the Conversion Rate will in no event be adjusted down pursuant to this Section 5.05(A)(v), except to the extent provided
in the immediately following paragraph. The adjustment to the Conversion Rate pursuant to this Section 5.05(A)(v) will be
calculated as of the Close of Business on the last Trading Day of the Tender/Exchange Offer Valuation Period but will be given
effect immediately after the Expiration Time, with retroactive effect. If a Note is converted and the Conversion Date (in the case
of Physical Settlement) or any VWAP Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination
Settlement) occurs on the Expiration Date or during the Tender/Exchange Offer Valuation Period, then, notwithstanding anything
to the contrary in the Indenture or the Notes, the Company will, if necessary, delay the settlement of such conversion until the
second (2nd) Business Day after the last day of the Tender/Exchange Offer Valuation Period.


 






    - 50 -


     


    

 


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


 


(B)             
No Adjustments in Certain Cases.


 


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


 


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


 


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


 


(2)              
the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends
or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock
under any such plan;


 


(3)              
the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present
or future employee, director or consultant benefit plan or program of, or assumed by, the Company or any of its Subsidiaries;


 


(4)              
the issuance of any shares of Common Stock pursuant to any option, warrant, right or convertible or exchangeable security
of the Company outstanding as of the Issue Date;


 






    - 51 -


     


    

 


(5)               the
repurchase of any shares of Common Stock pursuant to an open market share purchase program or other buyback transaction,
including structured or derivative transactions such as accelerated share repurchase transactions or similar forward
derivatives, in each case that is not subject to Section 5.05(A)(v);


 


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


 


(7)              
accrued and unpaid interest on the Notes.


 


(C)             
Adjustment Deferral. If an adjustment to the Conversion Rate otherwise required by this Article 5 would result
in a change of less than one percent (1%) to the Conversion Rate, then, notwithstanding anything to the contrary in this Article
5, the Company may, at its election, defer such adjustment, except that all such deferred adjustments must be given effect
immediately upon the earliest of the following: (i) when all such deferred adjustments would result in a change of at least one
percent (1%) to the Conversion Rate; (ii) the Conversion Date of, or any VWAP Trading Day of an Observation Period for, any Note
being converted; (iii) the date a Fundamental Change or Make-Whole Fundamental Change occurs; (iv) the date the Company calls any
Notes for Redemption; and (iv) August 15, 2025.


 


 


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


 


(i)                
a Note is to be converted pursuant to Physical Settlement or Combination Settlement;


 


(ii)             
the record date, effective date or Expiration Time for any event that requires an adjustment to the Conversion Rate pursuant
to Section 5.05(A) has occurred on or before the Conversion Date for such conversion (in the case of Physical Settlement)
or on or before any VWAP Trading Day in the Observation Period for such conversion (in the case of Combination Settlement), but
an adjustment to the Conversion Rate for such event has not yet become effective as of such Conversion Date or VWAP Trading Day,
as applicable;


 


(iii)           
the Conversion Consideration due upon such conversion (in the case of Physical Settlement) or due in respect of such VWAP
Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock; and


 


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


 


then, solely for purposes of such conversion,
the Company will, without duplication, give effect to such adjustment on such Conversion Date (in the case of Physical Settlement)
or such VWAP Trading Day (in the case of Combination Settlement) and, for the avoidance of doubt, such shares will not be entitled
to participate in such event. In such case, if the date on which the Company is otherwise required to deliver the consideration
due upon such conversion is before the first date on which the amount of such adjustment can be determined, then the Company will
delay the settlement of such conversion until the second (2nd) Business Day after such first date.


 






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


 


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


 


(ii)             
a Note is to be converted pursuant to Physical Settlement or Combination Settlement;


 


(iii)           
the Conversion Date for such conversion (in the case of Physical Settlement) or any VWAP Trading Day in the Observation
Period for such conversion (in the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the
related record date;


 


(iv)            
the Conversion Consideration due upon such conversion (in the case of Physical Settlement) or due in respect of such VWAP
Trading Day (in the case of Combination Settlement) includes any whole shares of Common Stock based on a Conversion Rate that is
adjusted for such dividend or distribution; and


 


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


 


then (x) in the case of Physical Settlement,
such Conversion Rate adjustment will not be given effect for such conversion and the shares of Common Stock issuable upon such
conversion based on such unadjusted Conversion Rate will not be entitled to participate in such dividend or distribution, but there
will be added, to the Conversion Consideration otherwise due upon such conversion, the same kind and amount of consideration that
would have been delivered in such dividend or distribution with respect to such shares of Common Stock had such shares been entitled
to participate in such dividend or distribution; and (y) in the case of Combination Settlement, the Conversion Rate adjustment
relating to such Ex-Dividend Date will be made for such conversion in respect of such VWAP Trading Day, but the shares of Common
Stock issuable with respect to such VWAP Trading Day based on such adjusted Conversion Rate will not be entitled to participate
in such dividend or distribution.


 


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


 






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


 


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


 


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


 


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


 


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


 


Section 5.06.    
Voluntary Adjustments.


 


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


 


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


 






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


 


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


 





	Make-Whole
    

Fundamental

	 	Stock
    Price	 
	Change
    Effective 

Date	 	$21.62	 	 	$25.00	 	 	$29.19	 	 	$33.00	 	 	$37.94	 	 	$45.00	 	 	$55.00	 	 	$65.00	 	 	$80.00	 	 	$100.00	 	 	$125.00	 	 	$150.00	 
	February
    13, 2020	 	 	11.9916	 	 	 	9.8262	 	 	 	7.5539	 	 	 	6.1170	 	 	 	4.8025	 	 	 	3.5582	 	 	 	2.4982	 	 	 	1.8613	 	 	 	1.2832	 	 	 	0.8442	 	 	 	0.5478	 	 	 	0.3702	 
	February 15, 2021	 	 	11.9916	 	 	 	9.7262	 	 	 	7.3518	 	 	 	5.8715	 	 	 	4.5363	 	 	 	3.2960	 	 	 	2.2637	 	 	 	1.6613	 	 	 	1.1307	 	 	 	0.7342	 	 	 	0.4750	 	 	 	0.3195	 
	February 15, 2022	 	 	11.9916	 	 	 	9.5302	 	 	 	7.0366	 	 	 	5.5109	 	 	 	4.1620	 	 	 	2.9426	 	 	 	1.9618	 	 	 	1.4120	 	 	 	0.9457	 	 	 	0.6082	 	 	 	0.3926	 	 	 	0.2629	 
	February 15, 2023	 	 	11.9916	 	 	 	9.1822	 	 	 	6.5501	 	 	 	4.9776	 	 	 	3.6322	 	 	 	2.4604	 	 	 	1.5727	 	 	 	1.1044	 	 	 	0.7257	 	 	 	0.4642	 	 	 	0.3014	 	 	 	0.2029	 
	February 15, 2024	 	 	11.9916	 	 	 	8.5942	 	 	 	5.7862	 	 	 	4.1776	 	 	 	2.8652	 	 	 	1.8049	 	 	 	1.0764	 	 	 	0.7336	 	 	 	0.4795	 	 	 	0.3102	 	 	 	0.2070	 	 	 	0.1395	 
	February 15, 2025	 	 	11.9916	 	 	 	7.5662	 	 	 	4.4912	 	 	 	2.8715	 	 	 	1.7002	 	 	 	0.9049	 	 	 	0.4837	 	 	 	0.3305	 	 	 	0.2307	 	 	 	0.1552	 	 	 	0.1086	 	 	 	0.0735	 
	February 15, 2026	 	 	11.9916	 	 	 	5.7382	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 








 


If such Make-Whole
Fundamental Change Effective Date or Stock Price is not set forth in the table above, then:


 


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


 


(ii)             
if the Stock Price is greater than $150.00 (subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table above are adjusted pursuant to Section 5.07(B)), or less than $21.62 (subject to adjustment
in the same manner), per share, then no Additional Shares will be added to the Conversion Rate.


 


Notwithstanding anything
to the contrary in the Indenture or the Notes, in no event will the Conversion Rate be increased to an amount that exceeds 46.2534
shares of Common Stock per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at
the same time and for the same events for which, the Conversion Rate is required to be adjusted pursuant to Section 5.05(A).


 


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


 






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(C)             
Notice of the Occurrence of a Make-Whole Fundamental Change. The Company will notify the Holders, the Trustee and
the Conversion Agent of (i) each Make-Whole Fundamental Change occurring pursuant to clause (A) of the definition thereof
in accordance with Section 5.01(C)(i)(3)(b), and (ii) a Make-Whole Fundamental Change occurring pursuant to clause (B)
of the definition thereof in accordance with Section 4.03.


 


Section 5.08.    
Exchange in Lieu of Conversion.


 


Notwithstanding anything
to the contrary in this Article 5, and subject to the terms of this Section 5.08, if a Note is submitted for conversion,
the Company may elect to arrange to have such Note exchanged in lieu of conversion by a financial institution designated by the
Company. To make such election, the Company must send notice of such election to the Holder of such Note, the Trustee and the Conversion
Agent before the Close of Business on the Business Day immediately following the Conversion Date for such Note. If the Company
has made such election, then:


 


(A)            
no later than the Business Day immediately following such Conversion Date, the Company must deliver (or cause the Conversion
Agent to deliver) such Note, together with delivery instructions for the Conversion Consideration due upon such conversion (including
wire instructions, if applicable), to a financial institution designated by the Company that has agreed to deliver such Conversion
Consideration in the manner and at the time the Company would have had to deliver the same pursuant to this Article 5;


 


(B)             
if such Note is a Global Note, then (i) such designated institution will send written confirmation to the Conversion Agent
promptly after wiring the cash Conversion Consideration, if any, and delivering any other Conversion Consideration, due upon such
conversion to the Holder of such Note; and (ii) the Conversion Agent will as soon as reasonably practicable thereafter contact
such Holder’s custodian with the Depositary to confirm receipt of the same; and


 


(C)             
such Note will not cease to be outstanding by reason of such exchange in lieu of conversion;


 


provided, however, that if
such financial institution does not accept such Note or fails to timely deliver such Conversion Consideration, then the Company
will be responsible for delivering such Conversion Consideration in the manner and at the time provided in this Article 5
as if the Company had not elected to make an exchange in lieu of conversion.


 


Section 5.09.    
Effect of Common Stock Change Event.


 


(A)            
Generally. If there occurs any:


 


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


 






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


 


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


 


(iv)            
other similar event,


 


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


 


(1)       from
and after the effective time of such Common Stock Change Event, (I) the Conversion Consideration due upon conversion of any Note,
and the conditions to any such conversion, will be determined in the same manner as if each reference to any number of shares of
Common Stock in this Article 5 (or in any related definitions) were instead a reference to the same number of Reference
Property Units; (II) for purposes of Section 4.03, each reference to any number of shares of Common Stock in such Section
(or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; and (III)
for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common
Stock” and “common equity” will be deemed to mean the common equity, if any, forming part of such Reference Property;


 


(2)       if
such Reference Property Unit consists entirely of cash, then the Company will be deemed to elect Physical Settlement in respect
of all conversions whose Conversion Date occurs on or after the effective date of such Common Stock Change Event and will pay the
cash due upon such conversions no later than the second (2nd) Business Day after the relevant Conversion Date (it being understood,
for the avoidance of doubt, that following a Common Stock Change Event whose Reference Property consists entirely of cash, the
Conversion Consideration for the conversion of any Note pursuant to Physical Settlement will, pursuant to clause (1) above,
consist entirely of cash); and


 


(3)       for
these purposes, (I) the Daily VWAP of any Reference Property Unit or portion thereof that consists of a class of common
equity securities will be determined by reference to the definition of “Daily VWAP,” substituting, if applicable,
the Bloomberg page for such class of securities in such definition; and (II) the Daily VWAP of any Reference Property Unit or
portion thereof that does not consist of a class of common equity securities, and the Last Reported Sale Price of any
Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of such
Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash
denominated in U.S. dollars, the face amount thereof).


 






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


 


At or before the effective
time of such Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such
Common Stock Change Event (the “Successor Person”) will execute and deliver to the Trustee a supplemental indenture
pursuant to Section 8.01(F), which supplemental indenture will (x) provide for subsequent adjustments to the Conversion
Rate pursuant to Section 5.05(A) in a manner consistent with this Section 5.09; and (y) contain such other provisions,
if any, that the Company reasonably determines are appropriate to preserve the economic interests of the Holders and to give effect
to the provisions of this Section 5.09(A). If the Reference Property includes shares of stock or other securities or assets
(other than cash or cash equivalents) of a Person other than the Successor Person, then such other Person will also execute such
supplemental indenture and such supplemental indenture will contain such additional provisions, if any, that the Company reasonably
determines are appropriate to preserve the economic interests of the Holders.


 


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


 


(C)             
Compliance Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent
with this Section 5.09.


 


Article
6.         Successors


 


Section 6.01.    
When the Company May Merge, Etc.


 


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


 


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


 






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


 


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


 


Section 6.02.    
Successor Corporation Substituted.


 


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


 


Section 6.03.    
Exclusion for Asset Transfers with Wholly Owned Subsidiaries.


 


Notwithstanding anything
to the contrary in this Article 6, this Article 6 will not apply to any transfer of assets between or among the Company
and any one or more of its Wholly Owned Subsidiaries not effected by merger or consolidation.


 


Article
7.         Defaults
and Remedies


 


Section 7.01.    
Events of Default.


 


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


 


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


 


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


 


(iii)           
the Company’s failure to deliver, when required by the Indenture, a Fundamental Change Notice or a notice pursuant
to Section 5.01(C)(i)(3);


 


(iv)            
a default in the Company’s obligation to convert a Note in accordance with Article 5 upon the exercise of the
conversion right with respect thereto, and such failure is not cured within three (3) calendar days after its occurrence;


 


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


 






    - 59 -


     


    

 


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


 


(vii)         
a default by the Company or any of its Significant Subsidiaries with respect to any one or more mortgages, agreements or
other instruments under which there is outstanding, or by which there is secured or evidenced, any indebtedness for money borrowed
of at least twenty million dollars ($20,000,000) (or its foreign currency equivalent) in the aggregate of the Company or any of
its Significant Subsidiaries, whether such indebtedness exists as of the Issue Date or is thereafter created, where such default:


 


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


 


(2)              
results in such indebtedness becoming or being declared due and payable before its stated maturity,


 


in each case where such default
is not cured or waived, or such indebtedness is not paid or discharged in full, within thirty (30) days after notice to the Company
by the Trustee or to the Company and the Trustee by Holders of at least twenty five percent (25%) of the aggregate principal amount
of Notes then outstanding;


 


(viii)       
one or more final judgments being rendered against the Company or any of its Significant Subsidiaries for the payment of
at least twenty million dollars ($20,000,000) (or its foreign currency equivalent) in the aggregate (excluding any amounts covered
by insurance), where such judgment is not discharged or stayed within sixty (60) days after (i) the date on which the right to
appeal the same has expired, if no such appeal has commenced; or (ii) the date on which all rights to appeal have been extinguished;


 


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


 


(1)              
commences a voluntary case or proceeding;


 


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


 


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


 



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


 


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


 


(6)              
generally is not paying its debts as they become due; or


 


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


 


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


 


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


 


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


 


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


 


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


 


(B)             
Cause Irrelevant. Each of the events set forth in Section 7.01(A) will constitute an Event of Default regardless
of the cause thereof or whether voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body.


 


Section 7.02.    
Acceleration.


 


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


 


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


 


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


 






    - 61 -


     


    

 


Section 7.03.    
Sole Remedy for a Failure to Report.


 


(A)            
Generally. Notwithstanding anything to the contrary in the Indenture or the Notes, the Company may elect that the
sole remedy for any Event of Default (a “Reporting Event of Default”) pursuant to Section 7.01(A)(vi)
arising from the Company’s failure to comply with Section 3.02 (including Section 314(a)(1) of the Trust Indenture
Act) will, for each of the first one hundred and eighty (180) calendar days on which a Reporting Event of Default has occurred
and is continuing, consist exclusively of the accrual of Special Interest on the Notes. If the Company has made such an election,
then (i) the Notes will be subject to acceleration pursuant to Section 7.02 on account of the relevant Reporting Event of
Default from, and including, the one-hundred-and-eighty-first (181st) calendar day on which a Reporting Event of Default has occurred
and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special Interest will
cease to accrue on any Notes from, and including, the earlier of (x) the date such Reporting Event of Default is cured or waived;
and (y) such one-hundred-and-eighty-first (181st) calendar day (it being understood that interest on any defaulted Special Interest
will nonetheless accrue pursuant to Section 2.05(B)).


 


(B)             
Amount and Payment of Special Interest. Any Special Interest that accrues on a Note pursuant to Section 7.03(A)
will be payable on the same dates and in the same manner as the Stated Interest on such Note and will accrue at a rate per annum
equal to one quarter of one percent (0.25%) of the principal amount thereof for the first ninety (90) days on which Special Interest
accrues and, thereafter, at a rate per annum equal to one half of one percent (0.50%) of the principal amount thereof for the next
ninety (90) days on which Special Interest accrues; provided, however, that in no event will Special Interest accrue
on any day on a Note at a rate per annum that exceeds one half of one percent (0.50%), regardless of the number of events or circumstances
giving rise to the accrual of Special Interest. For the avoidance of doubt, any Special Interest that accrues on a Note will be
in addition to the Stated Interest that accrues on such Note.


 


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


 


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


 






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(E)             
No Effect on Other Events of Default. No election pursuant to this Section 7.03 with respect to a Reporting
Event of Default will have any effect on the occurrence of any other Event of Default (including an Event of Default occurring
pursuant to Section 7.01(A)(vii) as a result of the events giving rise to such Reporting Event of Default).


 


Section 7.04.    
Other Remedies.


 


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


 


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


 


Section 7.05.    
Waiver of Past Defaults.


 


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


 


Section 7.06.    
Control by Majority.


 


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


 






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Section 7.07.    
Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.09.    
Collection Suit by Trustee.


 


The Trustee will
have the right, upon the occurrence and continuance of an Event of Default pursuant to clause (i), (ii) or (iv)
of Section 7.01(A), to recover judgment in its own name and as trustee of an express trust against the Company for the
total unpaid or undelivered principal of, or Redemption Price or Fundamental Change Repurchase Price for, or interest on, or
Conversion Consideration due pursuant to Article 5 upon conversion of, the Notes, as applicable, and, to the extent
lawful, any Default Interest on any Defaulted Amounts, and such further amounts sufficient to cover the costs and expenses of
collection, including compensation provided for in Section 7.7 of the Base Indenture.


 






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Section 7.10.    
Trustee May File Proofs of Claim.


 


The Trustee has the
right to (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims
of the Trustee and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes)
or its creditors or property and (B) collect, receive and distribute any money or other property payable or deliverable on any
such claims. Each Holder authorizes any custodian in such proceeding to make such payments to the Trustee, and, if the Trustee
consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to the Trustee for the reasonable
compensation, expenses, disbursements and advances of the Trustee, and its agents and counsel, and any other amounts payable to
the Trustee pursuant to Section 7.7 of the Base Indenture. To the extent that the payment of any such compensation, expenses, disbursements,
advances and other amounts out of the estate in such proceeding, is denied for any reason, payment of the same will be secured
by a lien on, and will be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders
may be entitled to receive in such proceeding (whether in liquidation or under any plan of reorganization or arrangement or otherwise).
Nothing in the Indenture will be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 7.11.    
Priorities.


 


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


 


First:        to
the Trustee and any Note Agent and their respective agents and attorneys for amounts due under Section 7.7 of the Base Indenture,
including payment of all fees, compensation, expenses and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;


 


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


 


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


 


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


 






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Section 7.12.    
Undertaking for Costs.


 


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


 


Section 7.13.    
Trustee’s
Obligation to Provide Notice of Defaults to Holders.


 


If an Default or Event
of Default occurs and is continuing and the Trustee receives written notice thereof, then the Trustee must notify Holders of the
same within ninety (90) days after it receives such notice.


 


Article
8.         Amendments,
Supplements and Waivers


 


Section 8.01.    
Without the Consent of Holders.


 


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


 


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


 


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


 


(C)             
secure the Notes;


 


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


 


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


 


(F)              
enter into supplemental indentures pursuant to, and in accordance with, Section 5.09 in connection with a Common
Stock Change Event;


 


(G)             
irrevocably elect or eliminate any Settlement Method or Specified Dollar Amount; provided, however, that no
such election or elimination will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any
Note pursuant to Section 5.03(A);


 






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(H)            
evidence or provide for the acceptance of the appointment, under the Indenture, of a successor Trustee, Registrar, Paying
Agent, Bid Solicitation Agent or Conversion Agent or facilitate the administration of the trusts under the Indenture by more than
one trustee;


 


(I)              
conform the provisions of the Indenture and the Notes to the “Description of Notes” section of the Company’s
preliminary prospectus supplement, dated February 10, 2020, as supplemented by the related pricing term sheet, dated February 10,
2020;


 


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


 


(K)            
increase the Conversion Rate in accordance with the Indenture;


 


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


 


(M)           
provide for any transfer restrictions that apply to any Notes issued under the Indenture (other than the Initial Notes)
that, at the time of their original issuance, constitute “restricted securities” within the meaning of Rule 144 under
the Securities Act or that are originally issued in reliance upon Regulation S under the Securities Act; or


 


(N)             
make any other change to the Indenture or the Notes that does not, individually or in the aggregate with all other such
changes, adversely affect the rights of the Holders, as such, in any material respect.


 


At the written request
of any Holder of a Note or owner of a beneficial interest in a Global Note, the Company will provide a copy of the “Description
of Notes” section and pricing term sheet referred to in Section 8.01(I).


 


Section 8.02.    
With the Consent of Holders.


 


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


 


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


 


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


 


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


 






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


 


(v)             
impair the absolute rights of any Holder to receive payment or delivery, as applicable, of the principal of, or the Redemption
Price or Fundamental Change Repurchase Price for, or any interest on, or the Conversion Consideration due upon Conversion of, such
Note on or after the respective due dates therefor, or to bring suit for the enforcement of any such payment or delivery on or
after such due dates;


 


(vi)           
change the ranking of the Notes;


 


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


 


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


 


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


 


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


 


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


 


Section 8.03.    
Notice of Amendments, Supplements and Waivers.


 


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


 


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


 


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


 






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


 


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


 


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


 


Section 8.05.    
Notations and Exchanges.


 


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


 


Section 8.06.    
Trustee to Execute Supplemental Indentures.


 


The Trustee will
execute and deliver any amendment or supplemental indenture authorized pursuant to this Article 8; provided, however,
that the Trustee need not (but may, in its sole and absolute discretion) execute or deliver any such amendment or
supplemental indenture that adversely affects the Trustee’s rights, duties, liabilities or immunities. In executing any
amendment or supplemental indenture, the Trustee will be entitled to receive, and (subject to Sections 7.1 and 7.2 of the
Base Indenture) will be fully protected in relying on, an Officers’ Certificate and an Opinion of Counsel stating that
(A) the execution and delivery of such amendment or supplemental indenture is authorized or permitted by the Indenture; and
(B) in the case of the Opinion of Counsel, such amendment or supplemental indenture is valid, binding and enforceable against
the Company in accordance with its terms.


 






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Article
9.         Satisfaction
and Discharge


 


Section 9.01.    
Termination of Company’s Obligations.


 


The Indenture will
be discharged, and will cease to be of further effect, as to all Notes issued under the Indenture, when:


 


(A)            
all Notes then outstanding (other than Notes replaced pursuant to Section 2.12) have (i) been delivered to the Trustee
for cancellation; or (ii) become due and payable (whether on a Redemption Date, a Fundamental Change Repurchase Date, the Maturity
Date, upon conversion or otherwise) for an amount of cash or Conversion Consideration, as applicable, that has been fixed;


 


(B)             
the Company has caused there to be irrevocably deposited with the Trustee, or with the Paying Agent (or, with respect to
Conversion Consideration, the Conversion Agent), in each case for the benefit of the Holders, or has otherwise caused there to
be delivered to the Holders, cash (or, with respect to Notes to be converted, Conversion Consideration) sufficient to satisfy all
amounts or other property due on all Notes then outstanding (other than Notes replaced pursuant to Section 2.12); and


 


(C)             
the Company has paid all other amounts payable by it under the Indenture with respect to the Notes;


 


provided, however, that Article
VII of the Base Indenture and Section 10.01 will survive such discharge and, until no Notes remain outstanding, Section
2.14 and the obligations of the Trustee, the Paying Agent and the Conversion Agent with respect to money or other property
deposited with them will survive such discharge.


 


At the Company’s
written request, the Trustee will acknowledge the satisfaction and discharge of the Indenture as to the Notes.


 


Section 9.02.    
Repayment to Company.


 


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


 


Section 9.03.    
Reinstatement.


 


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


 






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Article
10.       Miscellaneous


 


Section 10.01.
  Notices.


 


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


 


If to the Company:


 


Collegium Pharmaceutical, Inc.


100 Technology Center Drive, Suite
300,


Stoughton, MA 02072


Attention: Shirley Kuhlmann


 


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


 


Pepper Hamilton LLP


3000 Two Logan Square


Philadelphia, PA 19103-2799


Attention: Jennifer L. Porter


 


If to the Trustee:


 


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


500 Ross Street, 12th Floor


Pittsburgh, PA 15262


Facsimile: 412-234-8377


Attention: Corporate Trust Administration


 


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


 


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


 






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


 


If the Trustee is then
acting as the Depositary’s custodian for the Notes, then, at the reasonable request of the Company to the Trustee, the Trustee
will cause any notice prepared by the Company to be sent to any Holder(s) pursuant to the Depositary Procedures, provided
such request is evidenced in a Company Order delivered, together with the text of such notice, to the Trustee at least five (5)
Business Days before the date such notice is to be so sent. For the avoidance of doubt, such Company Order need not be accompanied
by an Officers’ Certificate or Opinion of Counsel. The Trustee will not have any liability relating to the contents of any
notice that it sends to any Holder pursuant to any such Company Order.


 


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


 


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


 


The Trustee
agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile
transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an
incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures
of such designated persons, which such incumbency certificate will be amended and replaced whenever a person is to be added
or deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a
similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s
understanding of such instructions will be controlling. The Trustee will not be liable for any losses, costs or expenses
arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions even if such
instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks
arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including the risk of
the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.


 






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Section 10.02.  
Delivery of Officers’ Certificate and Opinion of Counsel as to Conditions Precedent.


 


Upon any request or
application by the Company to the Trustee to take any action under the Indenture, the Company will furnish to the Trustee:


 


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


 


(B)             
an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee that complies with Section 10.03
and states that, in the opinion of such counsel, all such conditions precedent and covenants, if any, have been satisfied.


 


Section 10.03.   Statements
Required in Officers’ Certificate and Opinion of Counsel.


 


Each Officers’
Certificate (other than an Officers’ Certificate pursuant to Section 3.03) or Opinion of Counsel with respect to compliance
with a covenant or condition provided for in the Indenture will include:


 


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


 


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


 


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


 


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


 


Section 10.04.  
Rules by the Trustee, the Registrar and the Paying Agent.


 


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


 


Section 10.05.  
No Personal Liability of Directors, Officers, Employees and Stockholders.


 


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


 






    - 73 -


     


    

 


Section 10.06.  
Governing Law; Waiver of Jury Trial.


 


THE INDENTURE AND THE
NOTES, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE INDENTURE OR THE NOTES, WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE,
THE NOTES OR THE TRANSACTIONS CONTEMPLATED BY THE INDENTURE OR THE NOTES.


 


Section 10.07.  
Submission to Jurisdiction.


 


Any legal suit, action
or proceeding arising out of or based upon the Indenture or the transactions contemplated by the Indenture may be instituted in
the federal courts of the United States of America located in the City of New York or the courts of the State of New York, in each
case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits
to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice
or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth
in Section 10.01 will be effective service of process for any such suit, action or proceeding brought in any such court.
Each of the Company, the Trustee and each Holder (by its acceptance of any Note) irrevocably and unconditionally waives any objection
to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waives
and agrees not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient forum.


 


Section 10.08.  
No Adverse Interpretation of Other Agreements.


 


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


 


Section 10.09.  
Successors.


 


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


 


Section 10.10.   Force
Majeure.


 


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


 






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Section 10.11.  
U.S.A. PATRIOT Act.


 


The Company acknowledges
that, in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions, in order to help
fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The Company agrees to provide the
Trustee with such information as it may request to enable the Trustee to comply with the U.S.A. PATRIOT Act.


 


Section 10.12.   Calculations.


 


Except as otherwise
provided in the Indenture, the Company will be responsible for making all calculations called for under the Indenture or the Notes,
including determinations of the Last Reported Sale Price, the Daily Conversion Value, the Daily Cash Amount, the Daily Share Amount,
Daily VWAP, accrued interest on the Notes and the Conversion Rate. Neither the Trustee nor the Conversion Agent will be charged
with knowledge of, or have any duties to monitor, the price of the Common Stock or any Measurement Period, nor will either of them
be responsible for performing any calculations under the Indenture.


 


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


 


Section 10.13.  
Severability.


 


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


 


Section 10.14.   Counterparts.


 


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


 






    - 75 -


     


    

 


Section 10.15.   Table
of Contents, Headings, Etc.


 


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


 


Section 10.16.  
Withholding Taxes.


 


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


 


In order to comply
with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent
authorities) in effect from time to time (“Applicable Law”), the Company agrees (A) to provide to The Bank of
New York Mellon Trust Company, N.A. sufficient information about Holders or other applicable parties and/or transactions (including
any modification to the terms of such transactions) so The Bank of New York Mellon Trust Company, N.A. can determine whether it
has tax related obligations under Applicable Law; (B) that The Bank of New York Mellon Trust Company, N.A. will be entitled to
make any withholding or deduction from payments under the Indenture, but only to the extent necessary to comply with Applicable
Law, and The Bank of New York Mellon Trust Company, N.A. will not have any liability with respect thereto; and (C) to hold harmless
The Bank of New York Mellon Trust Company, N.A. for any losses it may suffer due to the actions it takes to comply with such Applicable
Law. The terms of this section will survive the termination of the Indenture.


 


Section 10.17.  
Trust Indenture Act Controls.


 


If any provision of
the Indenture limits, qualifies or conflicts with another provision which is required to be included in the Indenture by the Trust
Indenture Act, the required provision shall control. If any provision of the 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 the Indenture as so
modified or to be excluded, as the case may be.


 


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


 






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


 


		Collegium	Pharmaceutical,
Inc.
	 	 	 
		By:	/s/ Paul Brannelly
		 	Name:	Paul Brannelly
		 	Title:	Chief Executive Officer
	 	 	 	 
		The Bank of New York Mellon Trust

                                                  Company, N.A., as Trustee

	 	 
		By:	/s/ Mitchell L. Brumwell
		 	Name:	Mitchell L. Brumwell
		 	Title:	Vice President



 





[Signature Page to Supplemental Indenture]







 






    


     


    

 


EXHIBIT A


 


FORM OF NOTE


 


[Insert Global Note Legend, if applicable]


 


COLLEGIUM PHARMACEUTICAL, INC.


 


2.625% Convertible Senior Note due 2026


 


CUSIP No.:      [___]


Certificate No.      [___]


ISIN No.:          [___]


 


Collegium Pharmaceutical,
Inc., a Virginia corporation, for value received, promises to pay to [Cede & Co.], or its registered assigns, the principal
sum of [___] dollars ($[___]) [(as revised by the attached Schedule of Exchanges of Interests in the Global Note)]*
on February 15, 2026 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued
and unpaid interest are paid or duly provided for.


 


Interest Payment
Dates:     February 15 and August 15 of each year, commencing on [date].


 


Regular Record
Dates:       February 1 and August 1.


 


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


 


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


 





 






 * Insert bracketed language for Global Notes only.









 






    A-1


     


    

 


IN WITNESS WHEREOF,
Collegium Pharmaceutical, Inc. has caused this instrument to be duly executed as of the date set forth below.


 


	 	 	 	Collegium
Pharmaceutical, Inc.
	 	 	 	 	 
	Date:	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:



 






    A-2


     


    

 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


	Date:	 	 	By:	 
	 	 	 	Authorized Signatory






 






    A-3


     


    

 



 


COLLEGIUM PHARMACEUTICAL, INC.


 


2.625% Convertible Senior Note due 2026


 


This Note is one of
a duly authorized issue of notes of Collegium Pharmaceutical, Inc., a Virginia corporation (the “Company”),
designated as its 2.625% Convertible Senior Notes due 2026 (the “Notes”), all issued or to be issued pursuant
to an indenture (the “Base Indenture”), dated as of February 13, 2020, and a first supplemental indenture (as
the same may be amended from time to time, the “Supplemental Indenture,” and the Base Indenture, as amended
by the Supplemental Indenture, and as the same may be further amended or supplemented from time to time with respect to the Notes,
the “Indenture”), dated as of February 13, 2020, each between the Company and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”). Capitalized terms used in this Note without definition have the respective
meanings ascribed to them in the Indenture.


 


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


 


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


 


2.                 
Maturity. This Note will mature on February 15, 2026, unless earlier repurchased, redeemed or converted.


 


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


 


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


 


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


 


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


 


7.                 
Right of the Company to Redeem the Notes. The Company will have the right to redeem the Notes for cash in the manner,
and subject to the terms, set forth in Section 4.03 of the Supplemental Indenture.


 






    A-4


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


* * *


 






    A-5


     


    

 





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


 


Collegium Pharmaceutical, Inc.


100 Technology Center Drive, Suite 300,


Stoughton, MA 02072


Attention: Paul Brannelly


 






    A-6


     


    

 





SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL NOTE*


 


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


 


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


 


	Date	 	Amount of Increase

 (Decrease) in

 Principal Amount of

 this Global Note	 	Principal Amount of

 this Global Note

 After Such Increase

 (Decrease)	 	Signature of

 Authorized

 Signatory of Trustee
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 




 





 






 * Insert for Global Notes only.


 













    A-7


     


    

 





CONVERSION NOTICE


 


COLLEGIUM PHARMACEUTICAL, INC.


 


2.625% Convertible Senior Notes due 2026


 


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


 


		o	the entire principal amount of



 


		o	$                     *
aggregate principal amount of



 


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


 


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


 


	Date:	 	 	 
	 	 	 	(Legal
    Name of Holder)
	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 
	 	 	 	Signature
    Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	Participant
    in a Recognized Signature
	 	 	 	Guarantee
    Medallion Program
	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Authorized Signatory




 





 






 * Must be an Authorized Denomination.









 






    A-8


     


    

 





FUNDAMENTAL CHANGE REPURCHASE NOTICE


 


COLLEGIUM PHARMACEUTICAL, INC.


 


2.625% Convertible Senior Notes due 2026


 


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


 


		o	the entire principal amount of



 


		o	$                     *
aggregate principal amount of



 


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


 


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


 


	Date:	 	 	 
	 	 	 	(Legal
    Name of Holder)
	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 
	 	 	 	Signature
    Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	Participant
    in a Recognized Signature
	 	 	 	Guarantee
    Medallion Program
	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Authorized Signatory





 





 



* Must be an Authorized Denomination.


 






    A-9


     


    

 





ASSIGNMENT FORM


 


COLLEGIUM PHARMACEUTICAL, INC.


 


2.625% Convertible Senior Notes due 2026


 


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


 


	Name:		 
	 	 	 
	Address:		 
	 	 	 
	Social security or

 tax identification

 number:		 



 


the within Note and all rights thereunder
irrevocably appoints:


 


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


 


	Date:	 	 	 
	 	 	 	(Legal
    Name of Holder)
	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 
	 	 	 	Signature
    Guaranteed:
	 	 	 	 
	 	 	 	 
	 	 	 	Participant
    in a Recognized Signature
	 	 	 	Guarantee
    Medallion Program
	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Authorized Signatory



 






    A-10


     


    

 





EXHIBIT B-1


 


FORM OF GLOBAL NOTE LEGEND


 


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


 


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


 


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


 






    B-1