Exhibit 10.2


 


 


Bacterin
International Holdings, Inc.


 


6.00%
CONVERTIBLE SENIOR NOTES DUE 2021


 





 



 


INDENTURE


 


Dated
as of July 31, 2015


 





 



 


Wilmington
Trust, National Association


 


as Trustee


 





 






 


 




    	 



    	 



    

 


CROSS REFERENCE TABLE*


 


	Trust	 	 
	Indenture	 	 
	Act	 	Indenture
	Section	 	Section
	 	 	 
	310 (a)(1)	 	7.10
	(a)(2)	 	7.03; 7.10
	(a)(3)	 	N.A.
	(a)(4)	 	N.A.
	(a)(5)	 	N.A.
	(b)	 	7.08; 7.10
	(c)	 	N.A.
	311 (a)	 	7.12
	(b)	 	7.12
	(c)	 	N.A.
	312 (a)	 	2.08
	(b)	 	12.03
	(c)	 	12.03
	313 (a)	 	7.06
	(b)(1)	 	N.A.
	(b)(2)	 	7.06
	(c)	 	7.06
	(d)	 	7.06
	314 (a)	 	4.03
	(b)	 	N.A.
	(c)(1)	 	12.04
	(c)(2)	 	12.04
	(c)(3)	 	N.A.
	(d)	 	N.A.
	(e)	 	12.05
	(f)	 	N.A.
	315 (a)	 	7.01(b)
	(b)	 	7.05
	(c)	 	7.01(a)
	(d)	 	7.01(c)
	(e)	 	6.12
	316 (a) (last sentence)	2.14(b)
	(a)(1)(A)	 	6.06
	(a)(1)(B)	 	6.05
	(a)(2)	 	N.A.
	(b)	 	6.08
	(c)	 	1.05
	317 (a)(1)	 	6.09
	(a)(2)	 	6.10
	(b)	 	2.07
	318 (a)	 	12.01


 


N.A. means not applicable.


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


 




    	 



    	 



    

 


TABLE
OF CONTENTS


 


	 	Page
	 	 
	Article 1 DEFINITIONS AND INCORPORATION BY REFERENCE	1
	 	 
	Section 1.01	Definitions	1
	Section 1.02	Other Definitions	8
	Section 1.03	Incorporation by Reference of TIA	9
	Section 1.04	Rules of Construction	9
	Section 1.05	Acts of Holders	10
	 	 	 
	Article 2 THE NOTES	11
	 	 
	Section 2.01	Designation, Amount and Issuance of Notes	11
	Section 2.02	Form of Notes	11
	Section 2.03	Denomination of Notes	13
	Section 2.04	Payments	13
	Section 2.05	Execution and Authentication	15
	Section 2.06	Registrar, Paying Agent and Conversion Agent	16
	Section 2.07	Money and Securities Held in Trust	18
	Section 2.08	Holder Lists	18
	Section 2.09	Restrictive Legends	19
	Section 2.10	Transfer and Exchange; Transfer Restrictions	19
	Section 2.11	Replacement Notes	25
	Section 2.12	Temporary Notes	26
	Section 2.13	Cancellation	26
	Section 2.14	Outstanding Notes	26
	Section 2.15	Persons Deemed Owners	27
	Section 2.16	Repurchases	27
	Section 2.17	CUSIPs	27
	 	 	 
	Article 3 REPURCHASE AT THE OPTION OF THE HOLDER	28
	 	 
	Section 3.01	Fundamental Change Permits Holders to Require the Company to Repurchase the Notes	28
	Section 3.02	Fundamental Change Notice	28
	Section 3.03	Fundamental Change Repurchase Notice	30
	Section 3.04	Withdrawal of Fundamental Change Repurchase Notice	31
	Section 3.05	Effect of Fundamental Change Repurchase Notice	32
	Section 3.06	Notes Repurchased in Part	32
	Section 3.07	Covenant to Comply With Securities Laws Upon Repurchase of Notes	33
	Section 3.08	Deposit of Fundamental Change Repurchase Price	33
	Section 3.09	Covenant Not to Repurchase Notes Upon Certain Events of Default	33


 




    	- i -



    	 



    

 


	Article 4 COVENANTS	34
	 	 
	Section 4.01	Payment of Notes.	34
	Section 4.02	144A Information	34
	Section 4.03	Reports	34
	Section 4.04	Additional Interest	35
	Section 4.05	Compliance Certificate	35
	Section 4.06	Restriction on Purchases by the Company and by Affiliates of the Company	36
	Section 4.07	Corporate Existence	36
	Section 4.08	Par Value Limitation.	36
	Section 4.09	Stay, Extension and Usury Laws	36
	Section 4.10	Further Instruments and Acts	37
	 	 	 
	Article 5 CONSOLIDATION, MERGER AND SALE OF ASSETS	37
	 	 
	Section 5.01	Company May Consolidate, Merge or Sell Its Assets Only on Certain Terms	37
	Section 5.02	Successor Substituted	37
	 	 	 
	Article 6 DEFAULTS AND REMEDIES	38
	 	 
	Section 6.01	Events of Default	38
	Section 6.02	Acceleration	40
	Section 6.03	Other Remedies	40
	Section 6.04	Sole Remedy for Failure to Report	41
	Section 6.05	Waiver of Past Defaults	42
	Section 6.06	Control by Majority	42
	Section 6.07	Limitation on Suits	42
	Section 6.08	Rights of Holders To Receive Payment	43
	Section 6.09	Collection Suit by Trustee	43
	Section 6.10	Trustee May File Proofs of Claim	43
	Section 6.11	Priorities	44
	Section 6.12	Undertaking for Costs	44
	 	 	 
	Article 7 TRUSTEE	44
	 	 
	Section 7.01	Duties of Trustee	44
	Section 7.02	Rights of Trustee	45
	Section 7.03	Individual Rights of Trustee	47
	Section 7.04	Trustee’s Disclaimer	47
	Section 7.05	Notice of Defaults	47
	Section 7.06	Reports by Trustee to the Holders	47
	Section 7.07	Compensation and Indemnity	47
	Section 7.08	Replacement of Trustee	48
	Section 7.09	Successor Trustee by Merger	49
	Section 7.10	Eligibility; Disqualification	50


 




    	- ii -



    	 



    

 


	Section 7.11	Trustee’s Application for Instructions from the Company	50
	Section 7.12	Preferential Collection of Claims Against the Company	50
	 	 	 
	Article 8 SATISFACTION AND DISCHARGE	50
	 	 
	Section 8.01	Discharge of Liability on Notes	50
	Section 8.02	Repayment to the Company	51
	 	 	 
	Article 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS	51
	 	 
	Section 9.01	Without Consent of Holders	51
	Section 9.02	With Consent of Holders	52
	Section 9.03	Compliance with TIA	53
	Section 9.04	Execution of Supplemental Indentures	53
	Section 9.05	Notices of Supplemental Indentures	53
	Section 9.06	Effect of Supplemental Indentures	53
	Section 9.07	Revocation and Effect of Consents, Waivers and Actions	54
	Section 9.08	Notation on, or Exchange of, Notes	54
	Section 9.09	Trustee to Sign Amendments	54
	 	 	 
	Article 10 CONVERSIONS	55
	 	 
	Section 10.01	Right To Convert	55
	Section 10.02	Conversion Procedures	55
	Section 10.03	Settlement Upon Conversion.	57
	Section 10.04	Common Stock Issued Upon Conversion.	58
	Section 10.05	Adjustment of Conversion Rate	58
	Section 10.06	Voluntary Adjustments	67
	Section 10.07	Adjustments Upon Certain Fundamental Changes	68
	Section 10.08	Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale	70
	Section 10.09	No Responsibility of Trustee or Conversion Agent	72
	 	 	 
	Article 11 NO RIGHT OF REDEMPTION AT THE OPTION OF THE COMPANY	72
	 	 
	Article 12 MISCELLANEOUS	73
	 	 
	Section 12.01	TIA Controls	73
	Section 12.02	Notices	73
	Section 12.03	Communications by Holders with Other Holders	74
	Section 12.04	Certificate and Opinion as to Conditions Precedent	74
	Section 12.05	Statements Required in Certificate or Opinion	74
	Section 12.06	Separability Clause	75
	Section 12.07	Rules by Trustee	75
	Section 12.08	Governing Law and Waiver of Jury Trial	75
	Section 12.09	No Recourse Against Others	75
	Section 12.10	Calculations	75
	Section 12.11	Successors	75


 




    	- iii -



    	 



    

 


	Section 12.12	Multiple Originals	76
	Section 12.13	Table of Contents; Headings	76
	Section 12.14	Force Majeure	76
	Section 12.15	Submission to Jurisdiction	76
	Section 12.16	Legal Holidays	76
	Section 12.17	No Security Interest Created	76
	Section 12.18	Benefits of Indenture	76
	Section 12.19	Withholding Taxes	77
	Section 12.20	U.S.A. Patriot Act	77
	Section 12.21	Change of Company’s Legal Name	77


 


	Form of Note	A-1
	Form of Restricted Stock Legend	B-1
	Form of Certificate of Transfer	C-1
	Form of Certificate from Transferee	D-1


 




    	- iv -



    	 



    

 


INDENTURE, dated as
of July 31, 2015, between Bacterin International Holdings, Inc., a Delaware corporation (the “Company”), and
Wilmington Trust, National Association, a national banking association, as trustee (the “Trustee”).


 


Each party agrees as
follows for the benefit of the other party and for the equal and ratable benefit of the Holders (as defined below) of the Company’s
6.00% Convertible Senior Notes due 2021:


 


Article
1




DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section
1.01         Definitions.


 


“Additional
Interest” has the meaning ascribed to it in the Registration Rights Agreement.


 


“Affiliate”
of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control,” when used with respect
to any specified Person, means the power to direct or cause the direction of the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling”
and “controlled” have meanings correlative to the foregoing.


 


“Applicable
Procedures” means, with respect to any transfer or transaction involving a Global Note or any beneficial interest therein,
the rules and procedures of the Depositary for such Note, in each case to the extent applicable to such transfer or transaction
and as in effect from time to time.


 


“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, state or non-U.S. law for the relief of debtors.


 


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


 


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


 


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


 




    	- 1 -



    	 



    

“Capital Stock”
means, for any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents
of, or interests in (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 shares of the common stock of the Company, $0.000001 par value per share.


 


“Company”
means the party named as such in the first paragraph of this Indenture until a successor or assignee replaces it pursuant to the
applicable provisions hereof and, thereafter, means the successor or assignee.


 


“Company Order”
means a written request or order signed in the name of the Company by any Officer.


 


“Conversion
Price” means, at any time, (i) $1,000 divided by (ii) the Conversion Rate in effect at such time.


 


“Conversion
Rate” means, initially, 257.5163 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as
provided herein.


 


“Corporate
Trust Office” means the corporate trust office of the Trustee at which the trust created by this Indenture will be administered,
which office, as of the Issue Date, is located at Wilmington Trust, National Association, Global Corporate Capital Markets, 50
South Sixth Street, Suite 1290, Minneapolis, MN 55402, Attention: Bacterin International Holdings, Inc. Account Manager, and may
later be located at such other address as the Trustee, upon delivering notice to the Holders, the Paying Agent, the Conversion
Agent, the Registrar and the Company, designates.


 


“Custodian”
means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.


 


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


 


“Depositary”
means DTC; provided that the Company may at any time, upon delivering notice to the Holders, the Trustee, the Registrar,
the Paying Agent and the Conversion Agent, appoint a successor Depositary.


 


“DTC”
means The Depository Trust Company.


 


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


 


“Fundamental
Change” means an event that will be deemed to occur if any of the following occurs:


 




    	- 2 -



    	 



    

(a)          a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company or
the Subsidiaries, has become the direct or indirect “beneficial owner” (as defined below) of shares of the Company’s
common equity representing more than 50% of the voting power of the Company’s common equity;


 


(b)          the
consummation of:


 


(i)          any
sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets
of the Company and the Subsidiaries to any person; or


 


(ii)         any
transaction or series of related transactions in connection with which (whether by means of exchange, liquidation, consolidation,
merger, combination, reclassification, recapitalization, acquisition or otherwise) all of the Common Stock is exchanged for, converted
into, acquired for, or constitutes solely the right to receive, other securities, other property, assets or cash, but excluding
any merger, consolidation, share exchange or acquisition of the Company with or by another Person pursuant to which the Persons
that “beneficially owned” (as defined below), directly or indirectly, the shares of the Company’s Voting Stock
immediately prior to such transaction beneficially own, directly or indirectly, immediately after such transaction, shares of the
surviving, continuing or acquiring corporation’s Voting Stock representing more than 50% of the total outstanding voting
power of all outstanding classes of Voting Stock of the surviving, continuing or acquiring corporation in substantially the same
proportions vis-à-vis each other as immediately prior to such transaction; or


 


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


 


A transaction or event
described in clause (a) or (b) above will not constitute a Fundamental Change, however, if at least 90% of the consideration received
or to be received by the holders of the Common Stock, excluding cash payments for fractional shares or dissenters rights, in connection
with the transaction or transactions, consists of shares of common stock traded on any of the NASDAQ Capital Market, the NASDAQ
Global Market, the NASDAQ Global Select Market, the NYSE MKT LLC or the New York Stock Exchange (or any of their respective successors)
or which will be so traded or quoted when issued or exchanged in connection with such transaction or event and as a result of such
transaction or event, the Notes become convertible or exchangeable solely into such consideration (excluding cash payable in lieu
of any fractional share) in accordance with Section 10.08 hereof.


 


For the purposes of
this definition of “Fundamental Change,” whether a person is a “beneficial owner” or whether shares
are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.


 


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


 


“Global Note
Legend” means the legend identified as such in Exhibit A hereto.


 




    	- 3 -



    	 



    

“Holder”
means a Person in whose name a Note is registered in the Register.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time in accordance with the terms of this Indenture.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.


 


“Initial Purchaser”
means Leerink Partners LLC.


 


“Institutional
Accredited Investor Global Note” means a Global Note that is an Institutional Accredited Investor Note.


 


“Institutional
Accredited Investor Note” means (i) each Note that, at the time of its original issuance, was not a Rule 144A
Note, and each Note issued in exchange therefor or substitution thereof; and (ii) each Institutional Accredited Investor Note issued
pursuant to Section 2.10(e)(i) in exchange for, or upon the transfer of, another Note, and each Note issued in exchange therefor
or substitution thereof; provided, however, that a Note will cease to be an Institutional Accredited Investor Note
at such time, if any, as such Note is transferred to, or exchanged for, a Note that does not bear the Restricted Note Legend or
that is a Rule 144A Note.


 


“Institutional
Accredited Investor Physical Note” means a Physical Note that is an Institutional Accredited Investor Note.


 


“Issue Date”
means July 31, 2015.


 


“Last Reported
Sale Price” of the Common Stock on any date means the closing sale or trading price (or, if no closing sale or trading
price is reported, the average of the last bid and last ask prices or, if more than one in either case, the average of the average
last bid and the average last ask prices) per share on such date as reported in composite transactions for the principal U.S. national
or regional securities exchange on which the Common Stock is traded. If the Common Stock is not listed for trading on a U.S. national
or regional securities exchange on such date, the “Last Reported Sale Price” of the Common Stock will be the last quoted
bid price per share for the Common Stock in the over-the-counter market on such date as reported by OTC Markets Group Inc. or a
similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” will be the average of the
mid-point of the last bid and last ask prices per share for the Common Stock on the relevant date from each of at least three (3)
nationally recognized independent investment banking firms selected by the Company for this purpose. The “Last Reported Sale
Price” will be determined without regard to after-hours trading or any other trading outside of regular trading session hours.


 


“Market Disruption
Event” means the occurrence or existence during the one-half hour period ending on the scheduled close of trading 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 stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common
Stock.


 




    	- 4 -



    	 



    

“Non-Affiliate
Legend” means the legend identified as such in Exhibit A hereto.


 


“Notes”
means the Company’s 6.00% Convertible Senior Notes due 2021 issued under this Indenture.


 


“Officer”
means the Chairman of the Board, the Vice Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, any
Executive Vice President, any Senior Vice President, any Vice President, the Treasurer or the Secretary of the Company.


 


“Officers’
Certificate” means a written certificate containing the information specified in Sections 12.04 and 12.05 hereof, signed
in the name of the Company by any two Officers, and delivered to the Trustee; provided, that, if such certificate is given
pursuant to Section 4.05 hereof, (i) one of the Officers signing such certificate must be the Chief Financial Officer of the Company;
and (ii) such certificate need not contain the information specified in Sections 12.04 and 12.05 hereof.


 


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


 


“Opinion of
Counsel” means a written opinion containing the information specified in Sections 12.04 and 12.05 hereof, from legal
counsel satisfactory to the Trustee. The counsel may be an employee of, or counsel to, the Company who is satisfactory to the Trustee.


 


“Option”
means the Initial Purchaser’s option to purchase up to nine million seven hundred fifty thousand dollars ($9,750,000) aggregate
principal amount of additional Notes as provided for in the Rule 144A Purchase Agreement.


 


“Participant”
means, with respect to the Depositary a Person who has an account with the Depositary.


 


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


 


“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 that is duly executed by the Company and authenticated by the Trustee as provided herein and registered in
the name of the Holder of such Note.


 


“Preliminary
Offering Memorandum” means the Preliminary Offering Memorandum relating to the offering of the Notes dated July 13,
2015.


 


“Pricing Term
Sheet” means the pricing term sheet relating to the Preliminary Offering Memorandum and distributed in connection with
the pricing of the initial offering of Notes.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the date hereof, among the Company, the Initial
Purchaser and the other parties named therein.


 




    	- 5 -



    	 



    

“Restricted
Note Legend” means the legend identified as such set forth in Exhibit A hereto, or any other similar legend indicating
the restricted status of the Notes under the Securities Act.


 


“Restricted
Stock Legend” means a legend in the form set forth in Exhibit B hereto or any other similar legend indicating
the restricted status of the Common Stock under the Securities Act.


 


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


 


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


 


“Rule 144A
Global Note” means a Global Note that is a Rule 144A Note.


 


“Rule 144A
Note” means (i) each Note that, on the original issue date thereof, was issued and sold in reliance upon Rule 144A, and
each Note issued in exchange therefor or substitution thereof; and (ii) each Rule 144A Note issued, pursuant to Section 2.10(e)(ii),
in exchange for, or upon the transfer of, another Note, and each Note issued in exchange therefor or substitution thereof; provided,
however, that a Note will cease to be a Rule 144A Note at such time, if any, as such Note is transferred to, or exchanged
for, a Note that does not bear the Restricted Note Legend or that is an Institutional Accredited Investor Note.


 


“Rule 144A
Physical Note” means a Physical Note that is a Rule 144A Note.


 


“Rule 144A
Purchase Agreement” means that certain Purchase Agreement, dated as of July 27, 2015, between the Company and the
Initial Purchaser.


 


“SEC”
means the Securities and Exchange Commission.


 


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


 


“Significant
Subsidiary” means any Subsidiary that is a “significant subsidiary” of the Company within the meaning of
Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act.


 


“Stock Price”
means, for any Make-Whole Fundamental Change, (i) if the holders of the 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 of the type described in
clause (b) of the definition of Fundamental Change, the amount of cash paid per share of the Common Stock in such Make-Whole Fundamental
Change; and (ii) otherwise, the average of the Last Reported Sale Price per share of the Common Stock over the five consecutive
Trading Days ending on, and including, the Trading Day immediately preceding the Make-Whole Fundamental Change Effective Date for
such Make-Whole Fundamental Change.


 




    	- 6 -



    	 



    

“Subsidiary”
means a Person more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company, or by the Company and one or more other Subsidiaries of the Company.


 


“TIA”
means the Trust Indenture Act of 1939, as amended and in effect from time to time.


 


“Trading Day”
means a day on which (i) trading in the Common Stock (or other security for which a Last Reported Sale Price must be determined)
generally occurs on the NASDAQ Global Market or, if the Common Stock (or such other security) is not then listed on the NASDAQ
Global Market, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security)
is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange,
on the principal other market (including, without limitation, the OTCQX marketplace) on which the Common Stock (or such other security)
is then listed or admitted for trading; and (ii) there is no Market Disruption Event; provided, however, that if
the Common Stock (or such other security) is not so listed or traded, then “Trading Day” means a Business Day.


 


“Transfer
Agent” means, initially, American Stock Transfer & Trust Company, LLC, in its capacity as the transfer agent for
the Common Stock, and any successor entity acting in such capacity.


 


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


 


(A)         such
Note or share is sold or otherwise transferred pursuant to a registration statement that was effective under the Securities Act
at the time of such sale or transfer;


 


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


 


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


 


“Trust Officer”
means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) and also means,
with respect to a particular corporate trust matter with respect to this Indenture, any other officer of the Trustee to whom such
matter is referred because of his or her knowledge of and familiarity with the particular subject, in each case with direct responsibility
for the administration of this Indenture.


 




    	- 7 -



    	 



    

“Trustee”
means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant
to the applicable provisions of this Indenture and, thereafter, means such successor. The foregoing sentence will likewise apply
to any such subsequent successor or successors.


 


“Uniform Commercial
Code” means the New York Uniform Commercial Code as in effect on the Issue Date.


 


“Voting Stock”
of a Person means Capital Stock of such Person of the class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time Capital Stock of any other class or classes will have or might have voting power by
reason of the happening of any contingency).


 


Section
1.02         Other Definitions.


 


	
        Term:
	 	
        Section
        Defined in:

	“Act”	 	1.05
	“Additional Shares”	 	10.07(a)
	“Agent Members”	 	2.02(c)
	“Averaging Period”	 	10.05(e)
	“Conversion Agent”	 	2.06(a)
	“Conversion Consideration”	 	10.03(a)(i)
	“Conversion Date”	 	10.02(a)
	“Conversion Notice”	 	10.02(a)
	“Defaulted Amount”	 	2.04(c)
	“Default Interest”	 	2.04(c)
	“Effective Date”	 	1.01(a)(x)(III)
	“Event of Default”	 	6.01(a)
	“Ex-Dividend Date”	 	1.01(a)(x)(IV)
	“Expiration Date”	 	10.05(e)
	“Expiration Time”	 	10.05(e)
	“Fundamental Change Notice”	 	3.02(a)
	“Fundamental Change Notice Date”	 	3.02(a)
	“Fundamental Change Repurchase Date”	 	3.01(c)
	“Fundamental Change Repurchase Notice”	 	3.03(a)(i)
	“Fundamental Change Repurchase Price”	 	3.01(b)
	“Initial Notes”	 	2.01(b)
	“Interest Payment Date”	 	2.04(a)(ii)
	“Make-Whole Fundamental Change”	 	10.07(a)
	“Make-Whole Fundamental Change Effective Date”	 	10.07(b)
	“Maturity Date”	 	2.04(a)(i)
	“Paying Agent”	 	2.06(a)
	“Reference Property”	 	10.08(a)
	“Reference Property Unit”	 	10.08(a)
	“Register”	 	2.06(a)


 




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        Term:
	 	
        Section
        Defined in:

	“Registrar”	 	2.06(a)
	“Regular Record Date”	 	2.04(a)(ii)
	“Reorganization Event”	 	5.01
	“Reorganization Successor Corporation”	 	5.01(a)(ii)
	“Reporting Event of Default”	 	6.04(a)
	“Special Interest”	 	6.04(a)
	“Special Regular Record Date”	 	2.04(c)(i)
	“Spin-Off”	 	10.05(c)(ii)
	“Successor Person”	 	10.08(a)
	“Temporary Notes”	 	2.12
	“Valuation Period”	 	10.05(c)(ii)


 


Section
1.03         Incorporation by Reference of TIA. Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.


 


The following TIA terms
used in this Indenture have the following meanings:


 


(a)          “Commission”
means the SEC;


 


(b)          “indenture
securities” means the Securities;


 


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


 


(d)          “indenture
to be qualified” means this Indenture;


 


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


 


(f)          “obligor”
on the indenture securities means the Company or any successor.


 


All other terms used
in this Indenture that are defined by the TIA, by the TIA by reference to another statute or by rules under the TIA, and not otherwise
defined herein, have the respective meanings ascribed to them in such definitions.


 


Section
1.04         Rules of Construction. In this Indenture:


 


(a)          a
term has the meaning assigned to it;


 


(b)          an
accounting term not otherwise defined has the meaning assigned to it and will be construed in accordance with U.S. generally accepted
accounting principles;


 


(c)          “or”
is not exclusive;


 


(d)          “including”
means including, without limitation;


 


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


 




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


 


(g)          all
references to $, dollars, cash payments or money refer to United States currency; and


 


(h)          unless
the context requires otherwise, all references to interest on the Notes will (i) include any Additional Interest payable pursuant
to the Registration Rights Agreement and any Special Interest payable pursuant to Section 6.04 hereof; and (ii) for the avoidance
of doubt, not include any Default Interest payable on a Defaulted Amount pursuant to Section 2.04 hereof.


 


Section
1.05         Acts of Holders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action will become effective when such instrument or instruments are delivered
to the Trustee and to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act” of Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent will be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company, if made in the manner provided in this Section 1.05.


 


The fact and date of
the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to such officer the execution thereof. Where such execution is by a signer acting
in a capacity other than such signer’s individual capacity, such certificate or affidavit will also constitute sufficient
proof of such signer’s authority. The fact and date of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.


 


Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the Holder of any Note will bind every future Holder of the same
Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the Company, the Paying Agent, the Conversion Agent or
the Registrar in reliance thereon, whether or not notation of such action is made upon such Note.


 


If the Company will
solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company will have no obligation
to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at the Close of Business on such record date will
be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of outstanding Notes have authorized
or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and, for that purpose,
the outstanding Notes will be computed as of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date will be deemed effective unless it will become effective pursuant to the provisions of this
Indenture not later than six months after the record date.


 




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Article
2




THE NOTES


 


Section
2.01         Designation, Amount and Issuance of Notes.


 


(a)          Designation.
The Notes will be designated as “6.00% Convertible Senior Notes due 2021.”


 


(b)          Initial
Notes. The initial aggregate principal amount of Notes to be originally issued, authenticated and delivered on the Issue Date
under this Indenture is sixty five million dollars ($65,000,000). If the Initial Purchaser exercises the Option, then there will
be originally issued, authenticated and delivered up to an additional nine million seven hundred fifty thousand dollars ($9,750,000)
principal amount of additional Notes pursuant to such exercise (the Notes issued pursuant to the immediately preceding sentence,
and the Notes, if any, issued pursuant to this sentence, collectively, the “Initial Notes”).


 


(c)          Additional
Notes. Without the consent of any Holder, and notwithstanding anything to the contrary in Section 2.01(b) hereof, the Company
may increase the aggregate principal amount of the Notes issued under this Indenture by originally issuing additional Notes with
the same terms as the Initial Notes (except, to the extent applicable, with respect to the issue date, the issue price and the
date as of which interest shall begin to accrue (including pre-issuance accrued interest) on, and the first Interest Payment Date
(and related Regular Record Date) for, such additional Notes), which Notes will, subject to the foregoing, be considered to be
part of the same series of Notes as those initially issued hereunder; provided, however, that if any such additional
Notes are not fungible with other Notes issued hereunder for federal income tax purposes, then such additional Notes shall have
a separate CUSIP number.


 


(d)          Issuance
of Notes Upon Transfers, Exchanges, Etc. From time to time, the Company may issue and execute, and the Trustee may authenticate,
Notes delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 2.10, 2.11,
2.12, 3.06 and 10.02 hereof.


 


Section
2.02         Form of Notes.


 


(a)          General.
The Notes will be substantially in the form of Exhibit A hereto, but may include any notations, legends or endorsements
required by any applicable law (or regulation promulgated thereunder), stock exchange rule or usage, or any insertions, omissions
or other variations otherwise permitted or required by this Indenture. Whenever any such notation, legend or endorsement, or any
such insertion, omission or other variation is applicable to a Note, the Company will provide such notation, legend or endorsement,
or such insertion, omission or other variation to the Trustee in writing.


 




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Each Note will bear
a Trustee’s certificate of authentication substantially in the form set forth in Exhibit A hereto.


 


Notes will bear the
legends, if any, required by Section 2.09.


 


The terms and provisions
contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby. However, to the extent that any provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture will govern and control.


 


(b)          Form
of Initial and Subsequent Notes Upon Original Issuance. The Initial Notes will initially be issued in the form of Global Notes.
Additional Notes issued pursuant to Section 2.01(c) may be initially issued as Global Notes or Physical Notes.


 


(c)          Global
Notes. Each Global Note will represent the aggregate principal amount of then outstanding Notes endorsed thereon, which aggregate
principal amount may, from time to time, be reduced or increased to reflect transfers, exchanges, conversions or repurchases by
the Company.


 


Only the Trustee, or
the custodian holding such Global Note for the Depositary, at the direction of the Trustee, may endorse a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of then outstanding Notes represented thereby, and whenever
the Holder of a Global Note delivers instructions to the Trustee to increase or decrease the aggregate principal amount of then
outstanding Notes represented by a Global Note in accordance with Section 2.10 hereof, the Trustee, or the custodian holding such
Global Note for the Depositary, at the direction of the Trustee, will endorse such Global Note to reflect such increase or decrease
in the aggregate principal amount of then outstanding Notes represented thereby. None of the Trustee, the Company or any agent
of the Trustee or the Company will have any responsibility or bear any liability for any aspect of the records relating to, or
payments made on account of, the ownership of any beneficial interest in a Global Note or with respect to maintaining, supervising
or reviewing any records relating to such beneficial interest.


 


Neither any member
of, or participant in, the Depositary (collectively, the “Agent Members”) nor any other Person on whose behalf
an Agent Member may act will have any rights under this Indenture with respect to any Global Note or under such Global Note, and
the Company, the Trustee and any agent of the Company or the Trustee, may, for all purposes, treat the Depositary, or its nominee,
if any, as the absolute owner and Holder of such Global Note.


 


The Holder of a Global
Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that such Holder is entitled to take under this Indenture or the Notes with respect to such Global
Note, and, notwithstanding the foregoing, nothing herein will prevent the Company, the Trustee, the Paying Agent or any agent of
the Company, the Trustee or the Paying Agent from giving effect to any written certification, proxy or other authorization furnished
by such Holder or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may
act, the operation of their respective customary practices governing the exercise of the rights of a Holder of any interest in
any Global Note.


 




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Section
2.03         Denomination of Notes. The Notes will be issuable in registered
form without coupons in denominations of any Authorized Denomination.


 


Section
2.04         Payments.


 


(a)          General.


 


(i)          Payment
at Maturity. Unless earlier paid or deemed paid pursuant to any of Sections 3.05 or 10.03 hereof, the Notes will mature on
July 15, 2021 (the “Maturity Date”) and, on the Maturity Date, the Company will pay each Holder of Notes $1,000
in cash for each $1,000 principal amount of Notes held, together with accrued and unpaid interest to, but not including, the Maturity
Date (with such interest to be payable to the Holder of such Notes as of the Close of Business on the Regular Record Date immediately
preceding the Maturity Date).


 


(ii)         Payment
of Interest. Each Note will accrue interest at a rate equal to 6.00% per annum from the most recent date to which interest
has been paid or duly provided for, or, if no interest has been paid or duly provided for, the Issue Date (or such other date provided
for in Section 2.01(c) with respect to Notes issued in accordance with such Section) until, subject to Section 2.04(c), the date
the principal amount of such Note is paid or deemed to be paid, as the case may be, pursuant to clause (i) of this Section 2.04(a)
or any of Sections 3.05 or 10.03 hereof. Additional Interest will accrue on the Notes to the extent provided in the Registration
Rights Agreement and Special Interest will accrue on the Notes to the extent provided in Section 6.04 hereof, in each case in addition
to interest accruing on the Notes pursuant to the immediately preceding sentence.


 


Except as otherwise
provided herein (including Section 2.01(c) with respect to additional Notes issued pursuant to such Section and including Section
3.01(b) and Section 10.02(d)), interest will be payable in arrears on April 15, 2016 and, thereafter, semi-annually in arrears
on January 15 and July 15 of each year (each, an “Interest Payment Date”) to the Holder of each such Note as
of the Close of Business on the January 1 or July 1 (or April 1, 2016, in the case of the interest payment due on April 15, 2016),
as the case may be, and whether or not on a Business Day, immediately preceding the applicable Interest Payment Date (each such
date, a “Regular Record Date”). Interest on a Note that has been converted or repurchased after a Regular Record
Date and on or before the related Interest Payment Date will be paid in the manner set forth in Section 3.01(b) and Section 10.02(d),
as applicable. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.


 


(iii)        Method
of Payment. The Company will pay, or cause the Paying Agent to pay, the principal of, the Fundamental Change Repurchase Price
for, and the interest due on, any Global Note to the Depositary by wire transfer of immediately available funds on the relevant
payment date.


 




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The Company
will pay, or cause the Paying Agent to pay, the principal of and the Fundamental Change Repurchase Price for any Physical Note
by check or wire transfer, in the manner set forth below, to the applicable Holder of such Note at the office of the Paying Agent
on the relevant payment date upon surrender thereof to the Paying Agent and, if applicable, satisfaction of any other requirements
therefor set forth in Article 3. The Company will pay, or cause the Paying Agent to pay, interest due, on an Interest Payment Date,
on (and, subject to the immediately preceding sentence, the principal of or the Fundamental Change Repurchase Price for) any Physical
Note to the applicable Holder of such Note (i) by check mailed to such Holder’s registered address; or (ii) if such Holder
delivers, not later than the Regular Record Date relating to such Interest Payment Date (or, with respect to the payment of the
principal of or the Fundamental Change Repurchase Price for such Note, the date that is fifteen (15) days immediately preceding
the Maturity Date or related Fundamental Change Repurchase Date, as applicable), a written request to the Registrar that the Company
make such payments by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available
funds to such account, which request shall remain in effect until such Holder notifies the Registrar, in writing, to the contrary.


 


(b)          Interest
Rights Preserved. Subject to the provisions of Section 2.04(c) hereof, and, to the extent applicable, Sections 2.10 and 2.11
hereof, each Note delivered under this Indenture upon registration of transfer of, or in exchange for, or in lieu of, any other
Note will carry any rights to the payment and accrual of interest that were carried by the relevant surrendered Note, Notes, or
portion(s) thereof.


 


(c)          Defaulted
Amounts. Whenever any amount payable on a Note (including, the principal of, the Fundamental Change Repurchase Price for, and
interest on, such Note) has become due and payable, but the Company fails to punctually pay or to duly provide for such amount
(any such amount, a “Defaulted Amount”), in each case regardless of whether such failure constitutes an Event
of Default, then such Defaulted Amount will forthwith cease to be payable to the Holder of such Note on the relevant payment date
by virtue of its having been due such payment on such payment date, but will instead, to the extent permitted under applicable
law, accrue interest (“Default Interest”) at a rate equal to 6.00% per annum plus 100 basis points from, and
including, such payment date and to, but excluding, the date on which such Defaulted Amount is paid by the Company in accordance
with either clause (i) or (ii) below.


 


(i)          The
Company may elect to pay any Defaulted Amount and Default Interest on such Defaulted Amount to the Persons in whose names the Notes
(or their respective predecessor Notes) are registered at the Close of Business on a special record date for the payment of such
Defaulted Amount and Default Interest (a “Special Regular Record Date”) fixed in accordance with the following
procedures:


 


(A)         At
least twenty five (25) days before the date on which the Company proposes to pay such Defaulted Amounts and Default Interest thereon,
the Company will deliver to the Trustee written notice of (I) the proposed payment date for such Defaulted Amounts and Default
Interest thereon; and (II) the aggregate amount of such Defaulted Amounts and Default Interest thereon.


 




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(B)         Upon
delivering such notice to the Trustee, the Company will either (I) deposit with the Trustee an amount of money, in immediately
available funds, equal to the aggregate amount of such Defaulted Amounts and Default Interest thereon; or (II) take other actions
as are necessary to ensure that an amount of money, in immediately available funds, equal to the aggregate of such Defaulted Amounts
and Default Interest thereon will be deposited with the Trustee by 11:00 a.m., New York City time, on or prior to the proposed
payment date, and in either case, upon receipt of such money, the Trustee will hold such money in trust for the benefit of the
Persons entitled to such Defaulted Amounts and Default Interest pursuant to this Section 2.04(c)(i).


 


(C)         Upon
(i) delivery of such notice; and (ii) the Company’s deposit of such money or taking of such other action(s) set forth in
clause (B) above, the Company will promptly fix a Special Regular Record Date for the payment of such Defaulted Amounts and Default
Interest thereon, which Special Regular Record Date will be not more than fifteen (15) calendar days and not less than ten (10)
calendar days prior to the proposed payment date, and notify the Trustee and the Holders of the Special Regular Record Date and
the date on which such Defaulted Amounts and Default Interest thereon will be paid by the Company.


 


(D)         After
such notice has been delivered by the Company, such Defaulted Amounts and Default Interest thereon will be paid to the Persons
in whose names the Notes (or their respective predecessor Notes) are registered at the Close of Business on the Special Regular
Record Date specified in such notice and such Defaulted Amounts and Default Interest thereon will no longer be payable pursuant
to the following clause (ii) of this Section 2.04(c).


 


(ii)         The
Company may pay any Defaulted Amounts and Default Interest on such Defaulted Amounts in any other lawful manner that is not inconsistent
with the requirements of any securities exchange or automated quotation system on which the Notes are then listed (or, if applicable,
have been approved for listing) or designated for issuance, and upon such notice as may be required by such exchange or automated
quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner
of payment will be deemed practicable by the Trustee. The Trustee will not have any duty or responsibility to any Holder to determine
whether any Default Interest is payable, or, if any Default Interest is payable, the amount of such Default Interest that is payable.


 


Section
2.05         Execution and Authentication.


 


(a)          In
General. A Note will be valid only if executed by the Company and authenticated by the Trustee.


 


(b)          Execution.
A Note will be deemed to have been executed by the Company when an Officer signs such Note on behalf of the Company. The Officer’s
signature may be manual or facsimile (including .pdf), and such Officer’s signature will be valid whether or not such signatory
remains an Officer at the time the Trustee authenticates such Note.


 




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(c)          Authentication.
A Note will be deemed authenticated when an authorized signatory of the Trustee manually signs the certificate of authentication
on such Note. An authorized signatory of the Trustee will manually sign the certificate of authentication on a Note only if (i)
the Company delivers such Note to the Trustee; (ii) such Note is validly executed by the Company in accordance with Section 2.05(b)
hereof; (iii) the Company delivers an Officers’ Certificate and an Opinion of Counsel to the Trustee; and (iv) the Company
delivers, before or with such Note, a Company Order setting forth (A) a request that the Trustee authenticate such Note; (B) the
principal amount of such Note; (C) the name of the Holder of such Note; (D) the date on which such Note is to be authenticated;
and (E) any insertions, omissions or other variations, notations, legends or endorsements permitted under Section 2.02 hereof and
applicable to such Note. The Company Order shall specify that the Trustee shall deliver such Note to the Holder or the Depositary,
and the Trustee will promptly deliver such Note at the Company’s expense in accordance with such Company Order.


 


The Trustee or the
Company may appoint an authenticating agent. If the Trustee appoints an authenticating agent and such authenticating agent is reasonably
acceptable to the Company, such authenticating agent may authenticate a Note whenever the Trustee may authenticate such Note. For
purposes of this provision, each reference in this Indenture to authentication by the Trustee will be deemed to include authentication
by an authenticating agent, and an 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
2.06         Registrar, Paying Agent and Conversion Agent.


 


(a)          General.
The Company will maintain an office or agency in the continental United States where Notes may be presented for registration of
transfer or for exchange (the “Registrar”), an office or agency where the Notes may be presented for payment
or repurchase (the “Paying Agent”), an office or agency where the Notes may be presented for conversion (the
“Conversion Agent”) and an office or agency where notices and demands to, or upon, the Company with respect
to the Notes and this Indenture may be made.


 


The Registrar will
keep a register for the recordation of, and will record, the names and addresses of Holders, the Notes held by each Holder and
the transfer, exchange, repurchase and conversion of Notes (the “Register”). Absent manifest error, the entries
in the Register will be conclusive and the parties may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Holder hereunder for all purposes of this Indenture. The Register will be in written form or in any form capable
of being converted into written form within a reasonably prompt period of time.


 


The Company may have
one or more Registrars, one or more Paying Agents, one or more Conversion Agents and one or more places where notices and demands
to, or upon, the Company with respect to the Notes and this Indenture may be made. Before appointing any Registrar, Paying Agent
or Conversion Agent that is not otherwise a party to this agreement, the Company will enter into an appropriate agency agreement
with such Registrar, Paying Agent or Conversion Agent, as the case may be, which agency agreement will implement the provisions
of this Indenture that relate to such replacement or additional registrar, paying agent or conversion agent, as the case may be.
The term Registrar includes any additional registrars named pursuant to this Indenture. The term Paying Agent includes any additional
paying agent named pursuant to this Indenture. The term Conversion Agent includes any additional conversion agent named pursuant
to this Indenture. Upon the occurrence of any Event of Default under Section 6.01(a)(ix) or 6.01(a)(x) hereof with respect to the
Company, the Trustee shall be the Paying Agent.


 




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(b)          Initial
Designations. The Company initially appoints the Trustee as each of the Registrar, the Paying Agent, and Conversion Agent,
and the Notes initially may be presented for registration of transfer or for exchange, payment, repurchase and conversion to the
Trustee, in its capacity as the Registrar, Paying Agent or Conversion Agent, as the case may be, at the Corporate Trust Office.
Notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be made at the office of the Company
identified in Section 12.02 hereof.


 


(c)          Removal,
Resignation and Replacement. The Company may remove any Registrar, Paying Agent or Conversion Agent by delivering written notice
to the Trustee and to such Registrar, Paying Agent or Conversion Agent; provided, however, that no such removal will
become effective unless (i) after such removal, at least one Registrar, Paying Agent and Conversion Agent will remain; (ii) a successor
has accepted appointment as Registrar, Paying Agent or Conversion Agent, as the case may be, the Company and such successor have
entered into an agency agreement in accordance with Section 2.06(a) hereof, and the Company has delivered written notice of such
appointment and a copy of such agency agreement to the Trustee; or (iii) the Company has delivered written notice to the Trustee
that the Trustee will serve as the successor Registrar, Paying Agent or Conversion Agent, as the case may be, in accordance with
Section 2.06(d) hereof; and provided, further, that the right to effect any such change or removal in no way relieves
the Company of its obligation to maintain a Registrar, Paying Agent and Conversion Agent in the continental United States. The
Company may also change the place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture
may be made, or reduce the number of such places; provided, however, that the right to effect any such change or
reduction in no way relieves the Company of its obligation to maintain a place in the continental United States where notices and
demands to, or upon, the Company with respect to the Notes and this Indenture may be made.


 


In addition, the Registrar,
Paying Agent or Conversion Agent may resign at any time by delivering written notice of such resignation to each of the Company
and the Trustee; provided, however, that if the Trustee is serving as Registrar, Paying Agent or Conversion Agent,
the Trustee may resign from such capacity only if it also resigns as Trustee in accordance with Section 7.08 hereof. If, after
any such resignation, at least one Registrar, Paying Agent and Conversion Agent does not remain, the Trustee will immediately be
deemed to serve such empty office or agency in accordance with Section 2.06(d) hereof.


 


(d)          Failure
to Maintain an Office or Agency. If the Company fails to maintain in the continental United States, a Registrar, Paying Agent,
Conversion Agent or place where notices and demands to, or upon, the Company with respect to the Notes and this Indenture may be
made, the Trustee will act as the Registrar, Paying Agent, Conversion Agent, or place, as the case may be, and the office where
the Notes may be presented for registration of transfer or for exchange, presented for payment or repurchase or surrendered for
conversion will be the Corporate Trust Office. In each such case, the Trustee will be entitled to compensation for such action
pursuant to Section 7.07 hereof. In the event the Trustee so acts as such place where notices and demands to, or upon, the Company
with respect to the Notes and this Indenture may be made, the Trustee will be under no obligation to forward or otherwise deliver
any such notice or demand to the Company and will in no event be held liable in connection with its acting as such place.


 




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(e)          Notices.
Promptly upon the effectiveness of any removal or appointment of a Registrar, Paying Agent or Conversion Agent, or upon any change
in the location of the office of any Registrar, Paying Agent or Conversion Agent, or of the place where notices and demands to,
or upon, the Company with respect to the Notes and this Indenture may be made, the Company will deliver to each Holder, with a
copy to the Trustee, notice of such removal, appointment or change in location, as the case may be, which notice will include a
brief description of the removal, appointment or change in location, as the case may be, and list the name and address of each
continuing (and newly appointed, if applicable) Registrar, Paying Agent and Conversion Agent and place where notices and demands
to, or upon, the Company with respect to the Notes and this Indenture may be made.


 


Section
2.07         Money and Securities Held in Trust.


 


Except as otherwise
provided herein, by no later than 11:00 a.m., New York City time, on each due date for a payment on any Note, the Company will
deposit with the Paying Agent an amount of money in immediately available funds, if deposited on the due date sufficient to make
such payment when due.


 


The Company will require
that each Paying Agent (other than the Trustee, if the Trustee is a Paying Agent) agree in writing that it will (i) segregate all
money and securities it holds for making payments with respect to the Notes; (ii) hold such money and securities in trust for the
benefit of Holders; and (iii) notify the Trustee, in writing, as promptly as practicable, if the Company defaults in making any
payment on the Notes.


 


If any such default
has occurred and is continuing, the Paying Agent will, upon receiving a written request from the Trustee, promptly pay to the Trustee
all of the money and securities it holds in trust. In addition, at any time, the Company may require a Paying Agent to pay all
money and securities that it holds for making payments with respect to the Notes to the Trustee and to account for any money and
securities it has disbursed. After delivering all of such money and securities to the Trustee pursuant to this Section 2.07, the
Paying Agent (in its capacity as such) will have no further liability for such money and securities.


 


Section
2.08         Holder Lists.


 


The Trustee will preserve
in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If
the Trustee is not the Registrar, the Company will furnish to the Trustee, (i) within five Business Days after each Regular Record
Date, a list of the names and addresses of Holders as of such Regular Record Date; and (ii) at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of such request, a list of the names and addresses of Holders
as of no more than fifteen (15) days immediately prior to the date such list is furnished, in each case, in such form as the Trustee
may reasonably require.


 




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Section
2.09         Restrictive Legends.


 


(a)          Global
Note Legend. Each Global Note will bear the Global Note Legend.


 


(b)          Non-Affiliate
Legend. Each Note will bear the Non-Affiliate Legend.


 


(c)          Restricted
Note Legend. Each Note that is a Transfer-Restricted Security will bear the Restricted Note Legend. If a Note is issued in
exchange for, in substitution of, or to effect a partial conversion of, another Note (such other Note being referred to as the
“old Note” for purposes of this Section 2.09(c)), including pursuant to Section 2.10(b), Section 2.10(c), Section 2.11
or Section 10.02(c), then, unless the Company determines otherwise in its reasonable discretion, such Note will bear the Restricted
Note Legend if such old Note bore the Restricted Note Legend at the time of such exchange or substitution, or on the related Conversion
Date with respect to such conversion, as applicable; provided, however, that such Note need not bear the Restricted
Note Legend if such Note does not constitute a Transfer-Restricted Security immediately after such exchange or substitution, or
as of such Conversion Date, as applicable.


 


(d)          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.


 


(e)          Restricted
Stock Legend.


 


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


 


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


 


Section
2.10         Transfer and Exchange; 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.


 




    	- 19 -



    	 



    

(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 clause (ii)) or portion thereof in accordance herewith will be the valid obligation of the Company, evidencing the same
indebtedness, and entitled to the same benefits hereunder, as such old Notes or portion thereof, as applicable.


 


(iii)        None
of the Company, the Trustee, the Registrar, the Paying Agent and the Conversion Agent will 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 or transfers pursuant to Section 2.12, Article 3, Article 10 or
Section 9.08 not involving any transfer.


 


(iv)        Notwithstanding
anything to the contrary herein or in the Notes, the Company, the Trustee and the Registrar will not be required to register the
transfer of or exchange any Note that (1) has been surrendered for conversion, except to the extent that any portion of such Note
is not subject to conversion; or (2) is subject to a Fundamental Change Repurchase Notice validly delivered pursuant to Section
3.03, except to the extent that any portion of such Note is not subject to a Fundamental Change Repurchase Notice or the Company
fails to pay the applicable Fundamental Change Repurchase Price when due.


 


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


 


(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 hereof 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 third (3rd) Business Day after the date of such
satisfaction.


 


(viii)      Neither
the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.


 


(ix)         The
Company will bear responsibility for obtaining any necessary CUSIP number(s) in respect of Notes not bearing a Restricted Note
Legend and causing such Notes to be available through the facilities of the Depositary, when and if applicable.


 


(b)          Transfers
and Exchanges of Global Notes.


 


(i)          Subject
to clause (ii) below, no Global Note may be transferred or exchanged in whole except (A) by the Depositary to a nominee of the
Depositary; (B) by a nominee of the Depositary to the Depositary or to another nominee of the Depositary; or (C) by the Depositary
or any such nominee to a successor Depositary or a nominee of such successor Depositary


 




    	- 20 -



    	 



    

(ii)         No
Global Note (or 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 Physical Notes if:


 


(A)         (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;


 


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


 


(C)         the
Company, in its sole discretion, by delivering a written request to the Registrar, the Trustee and the owner(s) of beneficial interest(s)
in such Global Note, permits the exchange of any such beneficial interest for one or more Physical Notes at the request of such
owner(s).


 


In such event,
the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication
and delivery of Notes, will authenticate and deliver (x) in the case of clause (B) above, one or more Physical Notes to such beneficial
owner having an aggregate principal amount equal to the principal amount of such beneficial interest referred to in clause (B)
above; and (y) in the case of clause (A) or (C) above, one or more Physical Notes to each owner of a beneficial interest in such
Global Note, with such Physical Notes having, with respect to each such owner, an aggregate principal amount equal to the beneficial
interest of such owner in such Global Note, and, and, in each case, if the remaining principal amount of such Global Note immediately
after such exchange is zero, then the Trustee will, upon delivery of such Global Note to the Trustee, cancel such Global Note.


 


(iii)        Upon
satisfaction of the requirements hereof to effect a transfer or exchange of any Global Note (or any portion thereof in an Authorized
Denomination):


 


(A)         the
Trustee will reflect any resulting decrease of the principal amount of such Global Note by notation on the “Schedule of Increases
and Decreases of 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 2.13);


 




    	- 21 -



    	 



    

(B)         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 Increases and Decreases of Global Note” forming part of such other
Global Note;


 


(C)         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 2.05, a new Global Note bearing each legend, if any, required by Section 2.09; and


 


(D)         if
such Global Note (or portion thereof) 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 2.05, one or more Physical Notes registered
in such name(s) and in Authorized Denominations (not to exceed, in the aggregate, the principal amount of such Global Note (or
portion thereof)) as the Depositary specifies, or as otherwise determined pursuant to customary procedures, and bearing each legend,
if any, required by Section 2.09.


 


(iv)        Each
transfer or exchange of a beneficial interest in any Global Note will be made in accordance with the Applicable 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 exchanged; and (z) if then permitted by the Applicable Procedures, transfer
such Physical Note (or any portion thereof in an Authorized Denomination) in exchange for a beneficial interest in a Global Note;
provided, however, that, to effect any such transfer or exchange, such Holder must:


 


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


 


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


 


(ii)         Upon
the satisfaction of the requirements hereof 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):


 


(A)         such
old Physical Note will be promptly cancelled pursuant to Section 2.13;


 




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(B)         if
such old Physical Note is to be transferred or exchanged only in part, then the Company will issue, execute and deliver, and the
Trustee will authenticate, in each case in accordance with Section 2.05, one or more Physical Notes that (x) are in Authorized
Denominations and have an aggregate principal amount equal to the principal amount of such old Physical Note not to be transferred
or exchanged; (y) are registered in the name of such Holder; and (z) bear each legend, if any, required by Section 2.09;


 


(C)         in
the case of a transfer:


 


(I)         to
the Depositary or a nominee thereof that will hold its interest in such old Physical Note (or 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 Increases and Decreases of 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 2.05, 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


 


(II)        to
a transferee that will hold its interest in such old Physical Note (or 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 2.05, 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


 


(D)         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 2.05, 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.


 




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


 


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


 


(ii)         remove
such Restricted Note Legend; or


 


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


 


then the Company and
the Trustee may refuse to effect such identification, removal or transfer, as applicable, unless there is delivered to the Company
and the Trustee such certificates or other documentation or evidence as the Company or the Trustee may reasonably require in order
to determine that such identification, removal or transfer, as applicable, complies with the Securities Act and other applicable
securities laws (which may include certifications in the forms set forth in Exhibit C and Exhibit D hereto with such
revisions as the Company or the Trustee reasonably deems appropriate); provided, however, that no such certificates,
documentation or evidence need be so delivered if such request is being made in connection with a sale or other transfer of such
Note pursuant to an effective registration statement under the Securities Act, or after such Note has been sold or otherwise transferred
pursuant to an effective registration statement under the Securities Act, unless the Company determines, in its reasonable discretion,
that giving effect to such request would violate the Securities Act.


 


(e)          Special
Transfer Restrictions.


 


(i)          Transfers
of Interests from a Rule 144A Note to an Institutional Accredited Investor Note. A Rule 144A Physical Note or a beneficial
interest in a Rule 144A Global Note may not be transferred to a Person who takes delivery thereof in the form of an Institutional
Accredited Investor Physical Note or a beneficial interest in an Institutional Accredited Investor Global Note unless:


 


(A)         in
the case such Person is to take such delivery in the form of a beneficial interest in an Institutional Accredited Investor Global
Note, the transferor delivers to the Registrar (1) a written order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in
such Institutional Accredited Investor Global Note in an amount equal to the interest to be transferred; and (2) instructions given
in accordance with the Applicable Procedures containing information regarding the Participant account to be so credited, or, in
lieu of the foregoing, such other instructions or documentation as the Registrar may reasonably require in order to comply with
the Applicable Procedures in connection with such transfer;


 


(B)         without
limiting the generality of Section 2.10(d), such transferor delivers to the Registrar a certificate substantially in the form set
forth in Exhibit C hereto, including the certification set forth in Item 4 thereof; and


 




    	- 24 -



    	 



    

(C)         without
limiting the generality of Section 2.10(d), such transferee Person delivers to the Registrar a certificate substantially in the
form set forth in Exhibit D hereto, including the certification set forth in Item 1(b) thereof; and


 


(ii)         Transfers
of Interests from an Institutional Accredited Investor Note to a Rule 144A Note. An Institutional Accredited Investor Physical
Note or a beneficial interest in an Institutional Accredited Investor Global Note may not be transferred to a Person who takes
delivery thereof in the form of a Rule 144A Physical Note or a beneficial interest in a Rule 144A Global Note unless:


 


(A)         in
the case such Person is to take such delivery in the form of a beneficial interest in a Rule 144A Global Note, the transferor delivers
to the Registrar (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in such Institutional Accredited
Investor Global Note in an amount equal to the interest to be transferred; and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be so credited, or, in lieu of the foregoing, such other
instructions or documentation as the Registrar may reasonably require in order to comply with the Applicable Procedures in connection
with such transfer;


 


(B)         without
limiting the generality of Section 2.10(d), such transferor delivers to the Registrar a certificate substantially in the form set
forth in Exhibit C hereto, including the certification set forth in Item 3 thereof; and


 


(C)         without
limiting the generality of Section 2.10(d), such transferee Person delivers to the Registrar a certificate substantially in the
form set forth in Exhibit D hereto, including the certification set forth in Item 1(a) thereof; and


 


Section
2.11         Replacement Notes.


 


If (a)(i) a mutilated
Note is surrendered to the Registrar; or (ii) the Holder of a Note claims that such Note has been lost, destroyed or stolen and
provides the Company and the Trustee with (A) evidence of such loss, theft or destruction that is reasonably satisfactory to the
Company and the Trustee; and (B) any amount or kind of security or indemnity that the Trustee requests to protect itself and the
Company requests to protect itself, the Trustee and the Registrar, from any loss that it may suffer upon replacement of such Note;
and, in either case, (b) such Holder satisfies any other reasonable requirements of the Company and the Trustee, including the
payment of any tax or other governmental charge that may be imposed in connection with the replacement of such Note, then, unless
the Company or the Trustee receives notice that such Note has been acquired by a bona fide purchaser, the Company will, in accordance
with Section 2.05 hereof, promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, in accordance
with Section 2.05 hereof, and the documents required by Sections 12.04 and 12.05 hereof, will promptly authenticate and deliver,
in the name of such Holder, a replacement Note having the same aggregate principal amount as the Note that was mutilated or claimed
to be lost, destroyed or stolen, bearing any restrictive legends required by Section 2.09 hereof and with a certificate number
not contemporaneously outstanding.


 




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Every new Note issued
pursuant to this Section 2.11 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, will constitute
an original contractual obligation of the Company and any other obligor upon the Notes, regardless of whether the mutilated, destroyed,
lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all benefits of (and will be subject to
all the limitations set forth in) this Indenture equally and proportionately with any and all other Notes duly issued hereunder.


 


Section
2.12         Temporary Notes. Until Physical Notes are ready for delivery,
the Company may execute and the Trustee or an authenticating agent appointed by the Trustee will, upon receipt of a Company Order,
authenticate and deliver temporary Notes (printed or lithographed) (“Temporary Notes”). Temporary Notes will
be issuable in any Authorized Denomination, and substantially in the form of Physical Notes, but with such omissions, insertions
and variations as may be appropriate for Temporary Notes, all as may be determined by the Company. Every such Temporary Note will
be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially
the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay the Company will prepare, execute
and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all Temporary
Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company
pursuant to Section 2.06 hereof and the Trustee or such authenticating agent will authenticate and deliver in exchange for such
Temporary Notes Physical Notes having an aggregate principal amount equal to such Temporary Notes. Such exchange will be made by
the Company at its own expense and without any charge therefor. Until so exchanged, the Temporary Notes will, in all respects,
be entitled to the same benefits and subject to the same limitations under this Indenture as Physical Notes authenticated and delivered
hereunder.


 


Section
2.13         Cancellation. At any time, the Company may deliver Notes to the
Trustee for cancellation. Whenever any Note is surrendered to the Registrar, Conversion Agent or Paying Agent for registration
of transfer, exchange, conversion, repurchase or payment, the Registrar, Conversion Agent or Paying Agent, as the case may be,
will promptly forward such Note to the Trustee. Upon receipt of any such Note, the Trustee, in its customary manner, will promptly
cancel and dispose of such Note. The Company may not issue new Notes to replace Notes that it has repurchased, paid or delivered
to the Trustee for cancellation or that a Holder has converted pursuant to Article 10 hereof.


 


Section
2.14         Outstanding Notes. At any time, Notes outstanding are limited
to all Notes authenticated by the Trustee except (i) those cancelled by it; (ii) those delivered to it for cancellation; and (iii)
those deemed not outstanding under Sections 3.05 and 10.02 hereof and clauses (a) and (b) of this Section 2.14.


 


(a)          If
a Note is replaced pursuant to Section 2.11 hereof, such Note will cease to be outstanding at the time of its replacement unless
the Trustee and the Company receive proof satisfactory to them that such Note is held by a bona fide purchaser.


 




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(b)          In
addition, any Notes that are owned by Affiliates of the Company will be disregarded and deemed not to be outstanding for purposes
of determining whether the Holders of the requisite aggregate principal amount of Notes have given or concurred in any request,
demand, authorization, direction, notice, consent, waiver or other action hereunder, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that
a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding
at the time of any such determination will be considered in such determination (including determinations pursuant to Article 6
and Article 9 hereof).


 


Section
2.15         Persons Deemed Owners. Prior to due presentment of a Note for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name
such Note is registered in the Register as the owner of such Note for the purpose of receiving the payment of the principal, Fundamental
Change Repurchase Price of, and interest, if any, on, such Note, for the purpose of conversion of such Note and for all other purposes
whatsoever with respect to such Note, and none of the Company, the Trustee or any agent of the Company or the Trustee will be affected
by any notice to the contrary.


 


Section
2.16         Repurchases. The Company may, from time to time, repurchase Notes
in open market purchases or in negotiated transactions without delivering prior notice to Holders.


 


Section
2.17         CUSIPs.


 


(a)          Whenever
“CUSIP” and “ISIN” numbers are generally in use, the Company will use CUSIP and ISIN numbers with respect
to the Notes, which CUSIP and ISIN numbers (i) for Notes that are Transfer-Restricted Securities, will be restricted numbers; and
(ii) for Notes that are not Transfer-Restricted Securities, will be unrestricted numbers. Whenever the Company uses CUSIP and ISIN
numbers, the Trustee will also use CUSIP and ISIN numbers in each notice it delivers to the Holders; provided, however,
that neither the Company nor the Trustee will be responsible for any defect in any CUSIP or ISIN number that appears on any Note,
check, advice of payment or notice. The Company will promptly notify the Trustee in writing in the event of any change in the CUSIP
or ISIN numbers.


 


(b)          In
addition, if, when any shares of Common Stock are issued upon conversion of a Note, CUSIP and ISIN numbers are generally in use,
the Company will use CUSIP and ISIN numbers with respect to such shares of Common Stock, which CUSIP and ISIN numbers (i) for shares
of Common Stock to which the restrictions on transfer set forth in the Restricted Stock Legend apply, will be restricted numbers;
and (ii) for shares of Common Stock to which the restrictions on transfer set forth in the Restricted Stock Legend do not apply,
will be unrestricted numbers.


 


(c)          Whenever
any of the CUSIP or ISIN numbers with respect to the Notes or the shares of Common Stock issuable upon conversion of the Notes
change, cease to be used, or begin to be used, the Company will deliver prompt written notice of such change, cessation, or beginning
to each of the Trustee and the Holders.


 




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Article
3




REPURCHASE AT THE OPTION OF THE HOLDER


 


Section
3.01         Fundamental Change Permits Holders to Require the Company to Repurchase
the Notes.


 


(a)          General.
If a Fundamental Change occurs at any time prior to the Maturity Date, each Holder will have the right, at its option, to require
the Company to repurchase all of the Holder’s Notes, or any portion thereof in an Authorized Denomination, on the Fundamental
Change Repurchase Date for such Fundamental Change for an amount of cash equal to the Fundamental Change Repurchase Price for such
Fundamental Change Repurchase Date and such Notes.


 


(b)          Fundamental
Change Repurchase Price. The “Fundamental Change Repurchase Price” means, for any Notes to be repurchased
on any Fundamental Change Repurchase Date, a price equal to 100% of the principal amount of such Notes, plus accrued and unpaid
interest, if any, on such Notes to, but excluding, such Fundamental Change Repurchase Date; provided, however, that
if such Fundamental Change Repurchase Date occurs after a Regular Record Date, but on or prior to the Interest Payment Date corresponding
to such Regular Record Date, the Fundamental Change Repurchase Price for such Notes will be 100% of the principal amount of such
Notes, and accrued and unpaid interest, if any, on such Notes to, but excluding, such Interest Payment Date (assuming, solely for
these purposes, that such Notes remained outstanding through such Interest Payment Date) will be payable, on such Fundamental Change
Repurchase Date, to the Holder of such Notes as of the Close of Business on such Regular Record Date.


 


(c)          Fundamental
Change Repurchase Date. The “Fundamental Change Repurchase Date” means, for any Fundamental Change, the
date specified by the Company in the Fundamental Change Notice for such Fundamental Change, which date will be not less than twenty
(20) Business Days, nor more than thirty five (35) Business Days, immediately following the Fundamental Change Notice Date for
such Fundamental Change.


 


Section
3.02         Fundamental Change Notice.


 


(a)          General.
On or before the Business Day immediately following the effective date of a Fundamental Change, the Company will deliver to each
Holder (and to any beneficial owners of a Global Note, as required by applicable law), the Trustee, the Conversion Agent and the
Paying Agent (in compliance with the Applicable Procedures, if applicable) written notice of such Fundamental Change and of the
resulting repurchase right (the “Fundamental Change Notice,” and the date of such delivery, the “Fundamental
Change Notice Date”). Simultaneously with delivering any Fundamental Change Notice to the Holders, the Trustee, the Conversion
Agent and the Paying Agent, the Company will publish a notice containing the same information as the Fundamental Change Notice
in a newspaper of general circulation in The City of New York and on its website or through such other public medium as the Company
may use at such time.


 




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The Fundamental Change
Notice for each Fundamental Change will specify, as applicable:


 


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


 


(B)         the
effective date of such Fundamental Change;


 


(C)         the
last date on which a Holder may exercise its right to require the Company to repurchase its Notes as a result of such Fundamental
Change under this Article 3;


 


(D)         the
procedures that a Holder must follow to require the Company to repurchase a Note;


 


(E)         the
Fundamental Change Repurchase Price for each $1,000 principal amount of Notes for such Fundamental Change;


 


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


 


(G)         that
the Fundamental Change Repurchase Price for any Note for which a Fundamental Change Repurchase Notice has been duly tendered and
not validly withdrawn will be paid promptly following the later of the Fundamental Change Repurchase Date and the time such Note
is surrendered for repurchase;


 


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


 


(I)         the
Conversion Rate in effect on the Fundamental Change Notice Date for such Fundamental Change and the Last Reported Sale Price of
the Common Stock on the Trading Day immediately preceding the Fundamental Change Notice Date;


 


(J)         if
applicable, any adjustments that will be made to the Conversion Rate as a result of such Fundamental Change, including any Additional
Shares by which the Conversion Rate will be increased pursuant to Section 10.07 hereof for a Holder that converts a Note “in
connection with” such Fundamental Change;


 


(K)         that
any Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if
such Holder withdraws such Fundamental Change Repurchase Notice in accordance with the terms of this Indenture or to the extent
any portion of such Notes are not subject to such Fundamental Change Repurchase Notice;


 


(L)         the
procedures for withdrawing a Fundamental Change Repurchase Notice;


 


(M)         that
if a Note or portion of a Note is subject to a validly delivered Fundamental Change Repurchase Notice, unless the Company defaults
in paying the Fundamental Change Repurchase Price for such Note or portion of a Note, interest, if any, on such Note or portion
of a Note will cease to accrue on and after the Fundamental Change Repurchase Date; and


 




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(N)         the
CUSIP and ISIN number(s) of the Notes.


 


(b)          Failure
or Defect. Notwithstanding anything provided elsewhere in this Indenture, neither the failure of the Company to deliver a Fundamental
Change Notice nor a defect in a Fundamental Change Notice delivered by the Company will limit the repurchase rights of any Holder
under this Article 3 or impair or otherwise affect the validity of any proceedings relating to the repurchase of any Note pursuant
to this Article 3.


 


Section
3.03         Fundamental Change Repurchase Notice.


 


(a)          General.
To exercise its repurchase rights under Section 3.01(a) hereof with respect to any Notes pursuant to a Fundamental Change, the
Holder thereof must:


 


(i)          in
the case of Physical Notes, deliver to the Paying Agent, by the Close of Business on the second (2nd) Business Day immediately
preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable law, a duly completed “Fundamental
Change Repurchase Notice,” substantially in the form set forth in Exhibit A hereto (a “Fundamental Change
Repurchase Notice”) setting forth that such Holder is tendering such Notes for repurchase;


 


(ii)         in
the case of Global Notes, exercise such rights in accordance with the Applicable Procedures by the Close of Business on the second
(2nd) Business Day immediately preceding the Fundamental Change Repurchase Date, subject to extension to comply with applicable
law; and


 


(iii)        deliver
such Notes to the Paying Agent (A) by book-entry transfer, if such Notes are Global Notes; or (B) by physical delivery, if such
Notes are Physical Notes, in each case, together with any endorsements or other documents reasonably requested by the Paying Agent,
the Trustee or the Company.


 


(b)          Contents
of Fundamental Change Repurchase Notice. The Fundamental Change Repurchase Notice for any Note must state:


 


(i)          if
such Note is to be repurchased in part, the portion of the principal amount of such Note to be repurchased, which principal amount
must equal an Authorized Denomination;


 


(ii)         that
such Note will be repurchased by the Company pursuant to the provisions of this Article 3; and


 


(iii)        if
such Note is a Physical Note, the certificate number of such Note.


 




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If the Notes to be
repurchased are Global Notes, the Fundamental Change Repurchase Notice for such Notes must comply with the Applicable Procedures.


 


(c)          Notice
to Company. If any Holder validly delivers to the Paying Agent a Fundamental Change Repurchase Notice with respect to a Note
or any portion of a Note, the Paying Agent will promptly deliver to the Company a copy of such Fundamental Change Repurchase Notice.


 


(d)          Effect
of Improper Notice. Unless and until the Paying Agent receives a validly endorsed and delivered Fundamental Change Repurchase
Notice with respect to a Note, together with such Note, in a form that conforms in all material aspects with the description contained
in such Fundamental Change Repurchase Notice, the Holder submitting the Notes will not be entitled to receive the Fundamental Change
Repurchase Price for such Note.


 


Section
3.04         Withdrawal of Fundamental Change Repurchase Notice(a)          .


 


(a)          General.
After a Holder delivers a Fundamental Change Repurchase Notice with respect to a Note, such Holder may withdraw such Fundamental
Change Repurchase Notice (in whole or in part) with respect to such Note or any portion of such Note in principal amount equal
to an Authorized Denomination by delivering to the Paying Agent a written notice of withdrawal prior to the Close of Business on
the second (2nd) Business Day immediately preceding the Fundamental Change Repurchase Date to the Paying Agent. Any such withdrawal
notice must state:


 


(A)         the
principal amount of the Notes with respect to which such notice of withdrawal pertains, which must equal an Authorized Denomination;


 


(B)         the
principal amount of the Notes, if any, that remains subject to the Fundamental Change Repurchase Notice, which principal amount
must equal an Authorized Denomination; and


 


(C)         if
the Notes subject to such Fundamental Change Repurchase Notice are Physical Notes, the certificate numbers of the Notes to be withdrawn.


 


If the Notes to be
withdrawn are Global Notes, a Holder must deliver its notice of withdrawal in compliance with the Applicable Procedures.


 


(b)          Return
of Note. Upon receipt of a validly delivered withdrawal notice, the Paying Agent will promptly (i) if such notice pertains
to a Physical Note or a portion of a Physical Note, return such Note or portion of a Note to such Holder, in the amount specified
in such withdrawal notice; and, (ii) if such notice pertains to a beneficial interest in a Global Note, in compliance with the
Applicable Procedures, deem to be cancelled any instructions for book-entry transfer of such beneficial interest, in the amount
specified in such withdrawal notice.


 


(c)          Notice
to Company. If any Holder validly delivers to the Paying Agent a notice of withdrawal with respect to a Note or any portion
of a Note, the Paying Agent will promptly deliver to the Company a copy of such notice of withdrawal.


 




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Section
3.05         Effect of Fundamental Change Repurchase Notice(d)          .


 


(a)          General.
If a Holder validly delivers to the Paying Agent a Fundamental Change Repurchase Notice (together with all necessary endorsements)
with respect to a Note, such Holder may no longer convert such Note unless and until such Holder validly withdraws such Fundamental
Change Repurchase Notice in accordance with Section 3.04 hereof.


 


(b)          Timing
of Payment. Upon the Paying Agent’s receipt of (i) a valid Fundamental Change Repurchase Notice (together with all necessary
endorsements); and (ii) the Notes to which such Fundamental Change Repurchase Notice pertains, the Holder of the Notes to which
such Fundamental Change Repurchase Notice pertains will be entitled, except to the extent such Holder has validly withdrawn such
Fundamental Change Repurchase Notice in accordance with Section 3.04 hereof, to receive the Fundamental Change Repurchase Price
with respect to such Notes on the later of the following (subject to extension to comply with applicable law): (x) the Fundamental
Change Repurchase Date; and (y)(A) if such Notes are Physical Notes, the date of delivery of such Notes to the Paying Agent, duly
endorsed; or (B) if such Notes are Global Notes, the date of book-entry transfer of such Notes to the Paying Agent, or, if such
later date is not a Business Day, the Business Day immediately following such later date.


 


(c)          Effect
of Deposit. If, as of 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date for any Fundamental Change,
the Company, in accordance with Section 3.08 hereof, has deposited with the Paying Agent money sufficient to pay the Fundamental
Change Repurchase Price for every Note subject to a Fundamental Change Repurchase Notice validly delivered in accordance with Section
3.03 hereof and not validly withdrawn in accordance with Section 3.04 hereof, at the Close of Business on the Fundamental Change
Repurchase Date:


 


(A)         the
Notes to be repurchased will cease to be outstanding and interest (except Default Interest) will cease to accrue on such Notes
(whether or not book-entry transfer of such Notes is made or whether or not such Notes are delivered to the Paying Agent), except
to the extent provided in the proviso to Section 3.01(b); and


 


(B)         all
other rights of the Holders of such Notes with respect to such Notes (other than the right to receive payment of the Fundamental
Change Repurchase Price upon delivery or transfer of such Notes and any Defaulted Amounts or Default Interest with respect to the
Notes, and other than as provided in the proviso to Section 3.01(b)) will terminate.


 


Section
3.06         Notes Repurchased in Part. If any Physical Note is to be repurchased
only in part, the Holder must surrender such Note at the office of the Paying Agent, whereupon the Company, in accordance with
Section 2.05 hereof, will promptly execute, and the Trustee, in accordance with Section 2.05 hereof, will promptly authenticate
and deliver, to the surrendering Holder, a new Note or Notes of any authorized denomination or denominations equal to the portion
of the principal amount of the Note so surrendered which is not repurchased. If any Global Note is repurchased in part, the Company
will instruct the Trustee to decrease the principal amount of such Global Note by the principal amount repurchased. Any Notes that
are repurchased or owned by the Company, whether or not in connection with a Fundamental Change, will be submitted to the Trustee
for cancellation and will be duly retired by the Company.


 




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Section
3.07         Covenant to Comply With Securities Laws Upon Repurchase of Notes.
In connection with any repurchase offer pursuant to a Fundamental Change Repurchase Notice under this Article 3, the Company will,
to the extent applicable, (i) comply with Rule 13e-4 and any other tender offer rules under the Exchange Act that may be applicable
at the time of the offer to repurchase the Notes; (ii) file the related Schedule TO (or any successor schedule, form or report)
or any other required schedule under the Exchange Act; and (iii) otherwise comply with any applicable United States federal and
state securities laws so as to permit Holders to exercise their rights and obligations under Section 3.01 hereof in the time and
in the manner specified in Sections 3.01 and 3.03 hereof.


 


Section
3.08         Deposit of Fundamental Change Repurchase Price. Prior to 11:00
a.m., New York City time, on the Fundamental Change Repurchase Date, the Company will deposit with the Trustee or with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, will segregate and hold
in trust as provided in Section 2.07 hereof) an amount of immediately available funds sufficient to pay the Fundamental Change
Repurchase Price of all the Notes or portions thereof that the Company is required to repurchase on such Fundamental Change Repurchase
Date.


 


Section
3.09         Covenant Not to Repurchase Notes Upon Certain Events of Default.


 


(a)          General.
Notwithstanding anything to the contrary in this Article 3, the Company will not purchase any Notes under this Article 3 if, as
of the Fundamental Change Repurchase Date, the principal amount of the Notes has been accelerated, such acceleration has not been
rescinded and such acceleration did not result from a Default that would be cured by the Company’s payment of the Fundamental
Change Repurchase Price.


 


(b)          Deemed
Withdrawals. If, on any Fundamental Change Repurchase Date, (i) a Fundamental Change Repurchase Notice for a Note has been
validly tendered in accordance with Section 3.03 hereof and has not been validly withdrawn in accordance with Section 3.04 hereof;
and (ii) pursuant to this Section 3.09, the Company is not permitted to purchase Notes, the Paying Agent, upon receipt of written
notice from the Company stating that the Company, pursuant to this Section 3.09, is not permitted to purchase Notes, will deem
such Fundamental Change Repurchase Notice withdrawn.


 


(c)          Return
of Notes. If a Holder tenders a Note for purchase pursuant to this Article 3 and, on the Fundamental Change Repurchase Date,
pursuant to this Section 3.09, the Company is not permitted to purchase such Note, the Paying Agent will (i) if such Note is a
Physical Note, return such Note to such Holder; and (ii) if such Note is held in book-entry form, in compliance with the Applicable
Procedures, deem to be cancelled any instructions for book-entry transfer of such Note.


 




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Article
4




COVENANTS


 


Section
4.01         Payment of Notes. The Company will pay or cause to be paid the
principal of, Fundamental Change Repurchase Price for, and any accrued and unpaid interest (including, for the avoidance of doubt,
any Additional Interest or Special Interest) on, the Notes on the dates and in the manner required under this Indenture. Any principal
of, Fundamental Change Repurchase Price for, or interest on, a Note will be considered paid on the date due if the Paying Agent,
if other than the Company or a Subsidiary thereof, holds, as of 11:00 a.m. New York City time on the due date, money deposited
by the Company in immediately available funds and designated for, and sufficient to pay, such principal, Fundamental Change Repurchase
Price or interest then due. To the extent lawful, the Company will also pay Default Interest on any Defaulted Amounts in accordance
with Section 2.04 hereof.


 


Section
4.02         144A Information Whenever the Company is not subject to Section
13 or Section 15(d) of the Exchange Act, if any Notes or shares of Common Stock, if any, issuable upon the conversion of the Notes
constitute “restricted securities” within the meaning of Rule 144, the Company will, upon the request of a Holder or
beneficial owner of the Notes, or a holder or beneficial owner of the Common Stock, if any, issuable upon the conversion of the
Notes, promptly furnish or cause to be furnished to the applicable Holder, beneficial owner, or any prospective purchaser designated
by the applicable Holder or beneficial owner, of the Notes, or any holder, beneficial owner, or any prospective purchaser designated
by the applicable holder or beneficial owner, of the Common Stock, as applicable, all of the information that a prospective purchaser
of the Notes or the Common Stock, as applicable, is required to receive under Rule 144A(d)(4) of the Securities Act for the Notes
or shares of Common Stock, as applicable, to be resold to such prospective purchaser pursuant the exemption from registration provided
by Rule 144A.


 


Section
4.03         Reports. The Company will deliver to Holders, with a copy to the
Trustee, copies of all quarterly and annual reports that the Company is required to deliver to the SEC on Forms 10-Q and 10-K,
respectively, and any other documents, information or other reports that the Company is required to file with the SEC under Sections
13 or 15(d) of the Exchange Act no later than the date that the Company is required to file such quarterly and annual reports,
other documents, information or other reports with the SEC (after giving effect to any grace period provided by Rule 12b-25 under
the Exchange Act). Any document filed by the Company with the SEC via the EDGAR system (or any successor thereto) will be deemed
to be delivered to Holders and the Trustee at the time such document is filed via the EDGAR system (or such successor); provided,
however, that the Trustee will have no responsibility whatsoever to determine whether the Company has made any filing via
the EDGAR system (or any successor thereto). Notwithstanding anything to the contrary in the foregoing, nothing in this paragraph
shall require the Company to deliver to any Holder or the Trustee any material for which the Company has sought and received, or
is seeking and has not been denied, confidential treatment by the SEC. The Company will also comply with TIA § 314(a).


 


Delivery under this
Section 4.03 of reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt
thereof will not constitute constructive notice of any information contained therein or determinable from such information, including
the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates).


 




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Section
4.04         Additional Interest.


 


(a)          General.
Additional Interest will accrue on the Notes to the extent provided in the Registration Rights Agreement, and the Company’s
obligation to pay any such Additional Interest will be deemed to be obligations under this Indenture and the Notes with the same
force and effect as if the relevant provisions of the Registration Rights Agreement were reproduced in this Indenture and the Notes.


 


(b)          Notice
to Trustee. If the Company is required to pay Additional Interest on any Note, then, no later than five (5) Business Days before
the date on which such Additional Interest is scheduled to be paid, the Company will provide to the Trustee (and if the Trustee
is not the Paying Agent, to the Paying Agent) an Officers’ Certificate stating (i) that the Company is obligated to pay Additional
Interest; (ii) the amount of such Additional Interest that the Company is required to and will pay; (iii) the scheduled date on
which such Additional Interest will be paid to Holders; and (v) a direction that the Trustee (or, if the Trustee is not the Paying
Agent, the Paying Agent) pay such Additional Interest, to the extent it receives funds from the Company to do so, on the scheduled
payment date for such Additional Interest. The Trustee will not have any duty or responsibility to any Holder to determine whether
any Additional Interest is payable or, if any Additional Interest is payable, the amount of such Additional Interest that is payable.


 


Section
4.05         Compliance Certificate.


 


(a)          Annual
Compliance Certificate. Within 90 days after the end of each fiscal year of the Company, beginning with the fiscal year ending
on December 31, 2015, the Company will deliver to the Trustee an Officers’ Certificate, which Officers’ Certificate
will state (i) that the Officers signing such Officers’ Certificate have supervised a review of the activities of the Company
and the Subsidiaries with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture during the preceding fiscal year; and (ii) to the best knowledge of each of the Officers signing such Officers’
Certificate, (A) whether the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture
and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided under this Indenture) or, if one or more Defaults or Events of
Default have occurred, what events triggered such Defaults or Events of Default and what actions the Company is taking or proposes
to take with respect to such Defaults or Events of Default; and (B) whether any event has occurred and remains in existence by
reason of which any payment of the principal of, the Fundamental Change Repurchase Price for, or interest on, or any delivery of
any of the consideration due upon conversion of, a Note is prohibited, and, if any such event has occurred and remains in existence,
a description, in reasonable detail, of such event or events and what actions the Company is taking or proposes to take with respect
to such event or events.


 




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(b)          Certificate
of Default or Event of Default. Within five (5) Business Days after a Default or Event of Default occurs, the Company will
deliver to the Trustee an Officers’ Certificate describing such Default or Event of Default, its status and a description,
in reasonable detail, of what action the Company is taking or proposes to take with respect to such Default or Event of Default.


 


Section
4.06         Restriction on
Purchases by the Company and by Affiliates of the Company. Neither the Company nor any Subsidiary will purchase or otherwise acquire
any Notes without immediately retiring and canceling such Notes. In addition, the Company will use commercially reasonable efforts
to prevent any Affiliate of the Company from acquiring any Notes.


 


Section
4.07         Corporate Existence. Subject to Article 5 hereof, the Company
will do or cause to be done all things necessary to preserve and keep in full force and effect:


 


(a)          its
corporate existence, and the corporate, partnership or other existence of each of the Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and


 


(b)          the
rights (charter and statutory), licenses and franchises of the Company and the Subsidiaries;


 


provided, however,
that the Company will not be required to preserve or keep in full force and effect any such right, license or franchise, or the
corporate, partnership or other existence of any of the Subsidiaries, if the Board of Directors determines that the preservation
thereof is no longer desirable in the conduct of the business of the Company and the Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.


 


Section
4.08         Par Value Limitation.


 


The Company will not
take any action that, after giving effect to any adjustment pursuant to Section 10.05 or 10.07, would result in the Conversion
Price becoming less than the par value of one share of Common Stock. In addition, the Company will not engage in any transaction
that would require an adjustment to the Conversion Rate pursuant to Section 10.06 that would cause the Conversion Price to be less
than the par value of one share of Common Stock.


 


Section
4.09         Stay, Extension and Usury Laws. The Company covenants that, to
the extent that it may lawfully do so, 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 enacted, now or at any time hereafter in force, that may affect
the covenants or the performance of this Indenture; and the Company, to the extent that it may lawfully do so, hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will instead suffer and permit the execution of every such power
as though no such law has been enacted.


 




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


 


Article
5




CONSOLIDATION, MERGER AND SALE OF ASSETS


 


Section
5.01         Company May Consolidate, Merge or Sell Its Assets Only on Certain
Terms. The Company will not (1) consolidate with or merge with or into; or (2) sell, lease or otherwise transfer all or substantially
all of the consolidated assets of the Company and its Subsidiaries to, another Person (any such transaction, a “Reorganization
Event”), unless:


 


(a)          either:


 


(i)          the
Company is the surviving corporation; or


 


(ii)         the
resulting, surviving or transferee Person (if other than the Company) of such Reorganization Event (the “Reorganization
Successor Corporation”):


 


(I)         is
a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District
of Columbia; and


 


(II)        expressly
assumes, by executing and delivering a supplemental indenture to the Trustee in accordance with Section 9.01 and subject to Section
9.04 hereof, all of the obligations of the Company under the Notes and this Indenture;


 


(b)          immediately
after giving effect to such Reorganization Event, no Default will have occurred and be continuing; and


 


(c)          prior
to the effective date of such Reorganization Event, the Company delivers to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that:


 


(i)          such
Reorganization Event and such supplemental indenture comply with Section 5.01(a) hereof;


 


(ii)         all
conditions precedent to such Reorganization Event provided in this Indenture have been satisfied; and


 


(iii)        such
supplemental indenture, if any, constitutes the legal, valid and binding obligation of the Reorganization Successor Corporation
(subject to customary limitations);


 


Section
5.02         Successor Substituted. If any Reorganization Event occurs that
complies with Sections 5.01(a)(ii) and 5.01(b) hereof, and the Company has complied with Section 5.01(c) hereof:


 




    	- 37 -



    	 



    

(a)          from
and after the date of such Reorganization Event, the Reorganization Successor Corporation for such Reorganization Event will succeed
to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as
if such Reorganization Successor Corporation had been named as the Company herein; and


 


(b)          except
in the case of a Reorganization Event that is a conveyance, transfer or lease of all or substantially all of the Company’s
assets, the Person named as the “Company” in the first paragraph of this Indenture or any successor (other than such
Reorganization Successor Corporation that will thereafter have become such in the manner prescribed in this Article 5) will be
discharged from its obligations under the Notes and this Indenture and may be dissolved, wound up and liquidated at any time.


 


Article
6




DEFAULTS AND REMEDIES


 


Section
6.01         Events of Default.


 


(a)          General.
Each of the following events will be an “Event of Default”:


 


(i)          the
Company fails to pay the principal of the Notes (including any Fundamental Change Repurchase Price) when due at maturity or upon
repurchase upon a Fundamental Change or declaration of acceleration or otherwise;


 


(ii)         the
Company fails to pay any interest on the Notes when due and such failure continues for a period of thirty (30) days after the applicable
due date;


 


(iii)        the
Company fails to give any Fundamental Change Notice or notice of a Make-Whole Fundamental Change, in each case, when due;


 


(iv)        the
Company fails to comply with its obligation to convert a Note in accordance with Article 10 hereof upon a Holder’s exercise
of its conversion rights with respect to such Note;


 


(v)         the
Company fails to comply with its obligations under Article 5 hereof;


 


(vi)        the
Company fails to perform or observe any of its covenants or warranties in this Indenture or in the Notes (other than a covenant
or agreement specifically addressed in clauses (i) through (v) above) and such failure continues for a period of sixty (60) days
after days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the outstanding Notes;


 


(vii)       the
default by the Company or any Subsidiary with respect to any mortgage, agreement or other instrument under which there may be outstanding,
or by which there may be secured or evidenced, any indebtedness for money borrowed by the Company and/or any Subsidiary in excess
of one million dollars ($1,000,000) in the aggregate, whether such indebtedness exists as of the Issue Date or is later created,
if that default:


 




    	- 38 -



    	 



    

(A)         results
in such indebtedness becoming or being declared due and payable (prior to its express maturity); or


 


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


 


and, such acceleration
shall not have been rescinded or annulled or such failure to pay shall not have been cured, as the case may be, within thirty (30)
days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the outstanding Notes;


 


(viii)      a
final judgment for the payment of in excess of one million dollars ($1,000,000) (excluding any amounts covered by insurance) is
rendered against the Company or any Subsidiary, and such judgment is not discharged or stayed within sixty (60) days after (i)
the date on which all rights to appeal such judgment have expired if no appeal has commenced; or (ii) the date on which all rights
to appeal have been extinguished;


 


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


 


(A)         commences
a voluntary case;


 


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


 


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


 


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


 


(E)         takes
any comparable action under any foreign laws relating to insolvency; or


 


(F)         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:


 


(A)         is
for relief against Company or any Significant Subsidiary in an involuntary case or proceeding;


 




    	- 39 -



    	 



    

(B)         appoints
a Custodian of the Company or any Significant Subsidiary, or for any substantial part of the property of the Company or any Significant
Subsidiary;


 


(C)         orders
the winding up or liquidation of the Company or any Significant Subsidiary; or


 


(D)         grants
any similar relief under any foreign laws,


 


and, in each
such case, the order or decree remains unstayed and in effect for sixty (60) days.


 


(b)          Cause
Irrelevant. Each of the events enumerated in Section 6.01(a) hereof will constitute an Event of Default whatever the cause
and regardless of 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
6.02         Acceleration.


 


(a)          Automatic
Acceleration in Certain Circumstances. If an Event of Default specified in Sections 6.01(a)(ix) or 6.01(a)(x) hereof occurs
with respect to the Company, the principal amount of, and all accrued and unpaid interest, if any, on, all of the then outstanding
Notes will immediately become due and payable without any further action or notice by any party.


 


(b)          Optional
Acceleration. If any Event of Default other than an Event of Default specified in Section 6.01(a)(ix) or 6.01(a)(x) occurs
and is continuing, the Trustee, by delivering a written notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, by delivering a written notice to the Company with a copy to the Trustee, may declare the
principal amount of, and all accrued and unpaid interest, if any, on all then outstanding Notes immediately due and payable, and
upon such declaration, the principal amount of, and all accrued and unpaid interest, if any, on all then outstanding Notes will
immediately become due and payable.


 


(c)          Rescission
of Acceleration. Notwithstanding anything to the contrary in this Indenture, the Holders of a majority of the aggregate principal
amount of the then outstanding Notes may, on behalf of the Holders of all of the then outstanding Notes, rescind any acceleration
of the Notes and its consequences hereunder by delivering written notice to the Trustee 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 (other than the nonpayment
of the principal of, interest, if any, on, or the Fundamental Change Repurchase Price for, the Notes that has become due solely
as a result of acceleration) have been cured or waived. No such rescission will affect any subsequent Default or impair any right
consequent thereto.


 


Section
6.03         Other Remedies. If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy to collect the payment of principal, accrued and unpaid interest, if any, or payment
of the Fundamental Change Repurchase Price for, the Notes or to enforce the performance of any provision of the Notes or this Indenture
regarding any other matter.


 




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The Trustee may maintain
a proceeding even if it does not possess any of the Notes or does not produce any of the Notes in the proceeding. A delay or omission
by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default will not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies
are cumulative.


 


Section
6.04         Sole Remedy for Failure to Report.


 


(a)          General.
Notwithstanding anything to the contrary in the Notes or in this Indenture, the Company may elect that the sole remedy for any
Event of Default specified in Section 6.01(a)(vi) hereof relating to the Company’s failure to comply with Section 4.03 hereof
(a “Reporting Event of Default”) will, for the period beginning on the date on which such Reporting Event of
Default first occurred and ending on the earlier of (A) the date on which such Reporting Event of Default (i) is cured; or (ii)
is validly waived in accordance with Section 6.05 hereof; and (B) the sixtieth (60th) calendar day immediately following the date
on which such Reporting Event of Default first occurred, consist exclusively of the right to receive additional interest (the “Special
Interest”) on the Notes at a rate equal to 0.50% per annum on the principal amount of the outstanding Notes. Any Special
Interest will be payable in the same manner and on the same dates as the stated interest payable on the Notes and will accrue in
addition to any Additional Interest that the Company is obligated to pay. The Trustee will not have any duty or responsibility
to any Holder to determine whether the Special Interest is payable, or, if the Special Interest is payable, the amount of such
Special Interest that is payable.


 


(b)          Limitation
on Remedy. If (i) a Reporting Event of Default occurs and the Company elects that the sole remedy with respect to such Reporting
Event of Default will be the Special Interest; and (ii) on the sixty first (61st) day immediately following, and including, the
date on which such Reporting Event of Default first occurred, such Reporting Event of Default has not been cured or validly waived
in accordance with Section 6.05 hereof, then the Notes will become subject to acceleration under Section 6.02(a) hereof on account
of such Reporting Event of Default. For the avoidance of doubt, Special Interest will cease to accrue from such sixty first (61st)
day, without limiting the generality of this Section 6.04 as it may apply to any subsequent Reporting Event of Default.


 


(c)          Company
Election Notice. To elect to pay the Special Interest as the sole remedy for a Reporting Event of Default, the Company must
deliver written notice of such election to the Holders, the Paying Agent and the Trustee prior to the date on which such Reporting
Event of Default first occurs. Any such notice must include a brief description of the report that the Company failed, or will
fail, to file, a statement that the Company is electing to pay the Special Interest and the date on which such Reporting Event
of Default will occur.


 


If a Reporting Event
of Default occurs and the Company fails to timely deliver such notice for such Reporting Event of Default or fails to pay the Special
Interest, the Notes will be subject to acceleration under Section 6.02(a) hereof on account of such Reporting Event of Default.


 




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(d)          Other
Events of Default. Notwithstanding anything to the contrary herein, if the Company elects to pay Special Interest with respect
to any Reporting Event of Default, the Company’s election will not affect the rights of any Holder with respect to any other
Event of Default, including with respect to any other Reporting Event of Default; provided, that, for the avoidance of doubt,
in no event will the Company be obligated to pay Special Interest at a rate greater than 0.50% per annum on the principal amount
of then outstanding Notes.


 


Section
6.05         Waiver of Past Defaults. If an Event of Default described in Sections
6.01(a)(i), 6.01(a)(ii), 6.01(a)(iv) or 6.01(a)(vi) (which, in the case of Section 6.01(a)(vi) only, relates to a covenant that
cannot be amended without the consent of each affected Holder) or a Default that would lead to such an Event of Default occurs
and is continuing, such Event of Default or Default may be waived only with the consent of each affected Holder. Every other Event
of Default or Default may be waived by the Holders of a majority of the aggregate principal amount of then outstanding Notes (including
consents obtained in connection with a repurchase of, or tender offer or exchange offer for, Notes). Whenever any Event of Default
is so waived, it will cease to exist, and whenever any Default is so waived, it will be deemed 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 consequent right. This Section 6.05 will apply in lieu of TIA § 316(a)(1)(B), which, as permitted by TIA §
316(a)(1), is hereby expressly excluded from this Indenture.


 


Section
6.06         Control by Majority. At any time, the Holders of a majority of
the aggregate principal amount of then outstanding Notes may direct the time, method and place of conducting any proceedings for
any remedy available to the Trustee or for exercising any trust or power conferred on the Trustee. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or, subject to Section 7.01 hereof, that the Trustee determines
to be unduly prejudicial to the rights of a Holder or to the Trustee, or that would potentially involve the Trustee in personal
liability unless the Trustee is offered indemnity or security satisfactory to it against any loss, liability or expense to the
Trustee that may result from the Trustee’s instituting such proceeding as the Trustee. Prior to taking any action hereunder,
the Trustee will be entitled to indemnification satisfactory to it against all losses and expenses caused by taking or not taking
such action. This Section 6.06 will apply in lieu of TIA § 316(a)(1)(A), which, as permitted by TIA § 316(a)(1), is hereby
expressly excluded from this Indenture.


 


Section
6.07         Limitation on Suits. Except to enforce (i) its rights to receive
the principal of, the Fundamental Change Repurchase Price for, or interest, if any, on, a Note; or (ii) the failure of the Company
to comply with its obligations under Article 10 to convert any Note, no Holder may pursue a remedy with respect to this Indenture
or the Notes unless:


 


(a)          such
Holder has previously delivered to the Trustee written notice that an Event of Default has occurred and is continuing;


 


(b)          the
Holders of at least 25% of the aggregate principal amount of then-outstanding Notes deliver to the Trustee a written request that
the Trustee pursue a remedy with respect to such Event of Default;


 




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(c)          such
Holder or Holders have offered and provided to the Trustee security or indemnity satisfactory to the Trustee against any loss,
liability or other expense of compliance with such written request;


 


(d)          the
Trustee has not complied with such written request within sixty (60) days after receipt of such written request and offer of security
or indemnity; and


 


(e)          during
such sixty (60) day period, the Holders of a majority of the aggregate principal amount of then outstanding Notes did not deliver
to the Trustee a direction inconsistent with such written request.


 


A Holder may not use
this Indenture to prejudice the rights of any other Holder or to obtain a preference or priority over any other Holder, it being
understood that the Trustee does not have any affirmative duty to ascertain whether any usage of this Indenture by a Holder is
unduly prejudicial to such other Holders.


 


Section
6.08         Rights of Holders To Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder to receive payment of the principal of, the Fundamental Change Repurchase
Price for, accrued and unpaid interest, if any, on, and any consideration due under Article 10 upon conversion of, its Note, on
or after the respective due dates therefor as provided herein, or to bring suit for the enforcement of any such payment and/or
delivery on or after such respective due dates, will not be impaired or affected without the consent of such Holder and will not
be subject to the requirements of Section 6.07 hereof.


 


Section
6.09         Collection Suit by Trustee. If an Event of Default specified in
Sections 6.01(a)(i), 6.01(a)(ii) or 6.01(a)(iv) hereof occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Company for the whole amount of principal of, the Fundamental Change
Repurchase Price for, interest, if any, on, and the Conversion Consideration, if any, due upon conversion of, the Notes, and, to
the extent lawful, any Default Interest on any Defaulted Amounts, and such further amount as is sufficient to cover the costs and
expenses of collection provided for under Section 7.07 hereof.


 


Section
6.10         Trustee May File Proofs of Claim. The Trustee is authorized to
file such proofs of claim and other papers or documents as may be necessary or advisable to have the claims of the Trustee and
the Holders allowed in any judicial proceedings relative to the Company, its creditors or its property and, unless prohibited by
law or applicable regulations, will be entitled to collect, receive and distribute any money or other property payable or deliverable
on any such claims, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee consents to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section
7.07 hereof out of the estate in any such proceeding, will be 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 herein contained will be deemed to authorize the Trustee to authorize or consent to, or to accept or to 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.


 




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Section
6.11         Priorities. If the Trustee collects any money or property pursuant
to this Article 6, it will pay out the money or property in the following order:


 


FIRST: to the Trustee,
its agents and attorneys for amounts due under Section 7.07 hereof, 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 the Holders,
for any amounts due and unpaid on the principal of, the Fundamental Change Repurchase Price for, accrued and unpaid interest on,
and any Conversion Consideration due upon the conversion of, any Note, without preference or priority of any kind, according to
such amounts due and payable on all of the Notes; and


 


THIRD: the balance,
if any, to the Company or to such other party as a court of competent jurisdiction directs.


 


The Trustee may fix
a record date and payment date for any payment to the Holders pursuant to this Section 6.11. If the Trustee so fixes a record date
and a payment date, at least 15 days prior to such record date, the Company will deliver to each Holder and the Trustee a written
notice, which notice will state such record date, such payment date and the amount of such payment.


 


Section
6.12         Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.08 hereof or a suit by Holders of
more than 10% in aggregate principal amount of the then outstanding Notes.


 


Article
7




TRUSTEE


 


Section
7.01         Duties of Trustee.


 


(a)          If
an Event of Default has occurred and is continuing, the Trustee will exercise the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise as a prudent Person would exercise or use under the circumstances in
the conduct of such Person’s own affairs.


 




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


 


(i)          the
Trustee undertakes to perform such duties, and only such duties, as are specifically set forth in this Indenture, and no implied
covenants or obligations will be read into this Indenture against the Trustee; and


 


(ii)         in
the absence of bad faith on its part, the Trustee may conclusively rely upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture.


 


(c)          The
Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(i)          this
paragraph does not limit the effect of Section 7.01(b) hereof;


 


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


 


(iii)        the
Trustee will not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received
by it pursuant to Sections 6.06, 12.04 or 12.05 hereof.


 


(d)          Whether
herein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to this Section
7.01.


 


(e)          The
Trustee will not be liable for interest on any money received by it or risk or expend any of its own funds.


 


(f)          Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.


 


(g)          No
provision of this Indenture will require the Trustee to expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the exercise of any of its rights or powers.


 


(h)          Every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee will
be subject to the provisions of this Article 7, and the provisions of this Article 7 will apply to the Trustee, Registrar, Paying
Agent and Conversion Agent.


 


(i)          The
Trustee will not be deemed to have notice of a Default or an Event of Default unless (i) a Trust Officer of the Trustee has received
written notice at its Corporate Trust Office thereof from the Company or any Holder; or (ii) a Trust Officer has actual knowledge
thereof.


 


Section
7.02         Rights of Trustee.


 




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(a)          The
Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the document. The Trustee may, however, in its discretion
make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee determines to make
such further inquiry or investigation, it will be entitled to examine the books, records and premises of the Company, personally
or by agent or attorney and at the expense of the Company, and will incur no liability of any kind by reason of such inquiry or
investigation.


 


(b)          Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel or both. The
Trustee will not be liable for any action it takes or omits to take in good faith in reliance on the Officers’ Certificate
or Opinion of Counsel.


 


(c)          The
Trustee may act through agents, attorneys or custodians and will not be responsible for the misconduct or negligence of any agent,
attorney or custodian appointed with due care.


 


(d)          So
long as the Trustee’s conduct does not constitute willful misconduct or negligence, the Trustee will not be liable for any
action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon
it by this Indenture.


 


(e)          The
Trustee may consult with counsel of its own selection, and the advice or Opinion of Counsel with respect to legal matters relating
to this Indenture and the Notes will be full and complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in reliance upon the advice or opinion of such counsel.


 


(f)          The
permissive rights of the Trustee to do things enumerated in this Indenture will not be construed as a duty unless so specified
herein.


 


(g)          The
Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.


 


(h)          The
Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder.


 


(i)          The
rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended
to, and will be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder, including the Registrar, Paying Agent and Conversion Agent.


 


(j)          The
Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may
be signed by any Person authorized to sign an Officers’ Certificate, including any Person specified as so authorized in
any such certificate previously delivered and not superseded.


 




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(k)          In
no event will the Trustee be responsible or liable for any special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.


 


Section
7.03         Individual Rights of Trustee. The Trustee in its individual or
any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. However, if the Trustee acquires any conflicting interest (within the meaning
of TIA § 310) it must eliminate the conflict within 90 days or resign. Any Paying Agent, Registrar, Conversion Agent or co-registrar
may do the same with like rights. However, the Trustee must comply with Section 7.10 hereof.


 


Section
7.04         Trustee’s Disclaimer. The Trustee will not be responsible
for and makes no representation as to the validity, priority or adequacy of this Indenture or the Notes, it will not be accountable
for the Company’s use of the proceeds from the Notes, and it will not be responsible for any statement of the Company in
this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s
certificate of authentication.


 


Section
7.05         Notice of Defaults. If a Default occurs and is continuing and
is actually known to a Trust Officer, the Trustee will send to each Holder notice of the Default within ninety (90) days after
such Default first occurs, or, if it is not known to the Trustee at such time, promptly (and in any event within ten (10) Business
Days) after it is known to a Trust Officer; provided, however, that except in the case of a Default that is, or
would lead to, an Event of Default described in Section 6.01(a)(i), Section 6.01(a)(ii) or Section 6.01(a)(iv), the Trustee may
withhold the notice if and so long as it determines in good faith that withholding the notice is in the interests of Holders.


 


Section
7.06         Reports by Trustee to the Holders. If required by TIA §
313(a), the Trustee will, within sixty (60) days after each June 30 following the Issue Date, mail to each Holder (and each other
Person specified in TIA § 313(c)), and file as required by TIA §313(d), a brief report dated as of such June 30 that
complies with TIA § 313(a). The Trustee will also comply with TIA § 313(b). The Trustee will simultaneously send a copy
of each such report to the Company. The Company will promptly notify the Trustee of the listing or delisting of the Notes on or
from any stock exchange.


 


Section
7.07         Compensation and Indemnity.


 




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(a)          The
Company will pay to the Trustee, from time to time, such compensation as will be agreed upon, from time to time, in writing for
its services. The Trustee’s compensation will not be limited by any law on compensation of a trustee of an express trust.
The Company will reimburse the Trustee upon request for all reasonable fees and expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services. Such expenses will include the reasonable compensation, fees
and out-of-pocket expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. The Company
will fully indemnify the Trustee and hold it harmless against any and all loss, liability, claims (including those between the
parties to this Indenture), damages or expenses (including reasonable attorneys’ fees and expenses) incurred by it in connection
with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses
of defending itself against any claim (whether asserted by or against the Company, any Holder or any other Person). The Trustee
will notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company
of any claim for which it may seek indemnity of which a Trust Officer has actually received written notice will not relieve the
Company of its obligations hereunder except to the extent such failure is adjudicated by a court of competent jurisdiction to
have materially prejudiced the Company. Except for claims involving the Company, the Company will defend the claim and the Trustee
will cooperate in the defense. The Trustee may have one separate counsel, and the Company will pay the fees and expenses of such
counsel. The Company will pay the reasonable fees and expenses of counsel to the Trustee incurred in evaluating whether such defense
and/or conflict exists. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred
by the Trustee through the Trustee’s own willful misconduct or gross negligence. The Company need not pay for any settlement
made by the Trustee without the Company’s consent, such consent not to be unreasonably withheld. All indemnifications and
releases from liability granted hereunder to the Trustee will extend to its officers, directors, employees, agents, attorneys,
custodians, successors and assigns. In no event shall the Company have the right, without the related Trustee’s written
consent, to settle any such claim if such settlement (i) arises from or is part of any criminal action, suit or proceeding; (ii)
contains a stipulation to, confession of judgment with respect to, or admission or acknowledgement of, any liability or wrongdoing
on the part of such the Trustee; (iii) provides for injunctive relief or specific performance on the part of the Trustee or any
other relief other than monetary damages payable in full by the Company; or (iv) does not contain an unconditional release of
the Trustee from all liability on all claims that are the subject matter of the related dispute or proceeding.


 


(b)          To
secure the Company’s payment obligations under this Section 7.07, the Trustee will have a lien prior to the Notes on all
money or property held or collected by the Trustee, other than money or property held in trust to pay the principal, accrued and
unpaid interest, if any, or payment of the Fundamental Change Repurchase Price for any Notes.


 


(c)          The
Company’s payment obligations pursuant to this Section 7.07 will survive the resignation or removal of the Trustee and the
discharge of this Indenture. If the Trustee incurs expenses after the occurrence of a Default specified in Sections 6.01(a)(ix)
or 6.01(a)(x) hereof with respect to the Company, the expenses are intended to constitute expenses of administration under the
Bankruptcy Law.


 


Section
7.08         Replacement of Trustee.


 


(a)          Subject
to this Section 7.08, the Trustee may resign at any time by notifying the Company, in writing. The Holders of a majority in aggregate
principal amount of then outstanding Notes may remove the Trustee by notifying the Trustee, in writing. The Company may remove
the Trustee if:


 




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(i)          the
Trustee fails to comply with Section 7.10 hereof;


 


(ii)         the
Trustee is adjudged bankrupt or insolvent;


 


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


 


(iv)        the
Trustee otherwise becomes incapable of acting.


 


(b)          If
the Trustee resigns, is removed by the Company or by the Holders of a majority in aggregate principal amount of the Notes then
outstanding, or if a vacancy exists in the office of Trustee for any reason (the Trustee in such event being referred to herein
as the retiring Trustee), the Company will promptly appoint a successor Trustee.


 


(c)          A
successor Trustee will deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon,
the resignation or removal of the retiring Trustee will become effective, and the successor Trustee will have all the rights,
powers and duties of the Trustee under this Indenture. The successor Trustee will send a notice of its succession to Holders.
The retiring Trustee will, upon payment of all of its costs and the costs of its agents and counsel, promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07 hereof.


 


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


 


(e)          If
the Trustee, after written request by any Holder, fails to comply with Section 7.10 hereof, such Holder may petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.


 


(f)          Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue
for the benefit of the retiring Trustee.


 


Section
7.09         Successor Trustee by Merger.


 


(a)          If
the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or
assets to, another corporation or banking association, the resulting, surviving or transferee corporation or banking association
without any further act will be the successor Trustee.


 


(b)          In
case at the time such successor or successors by merger, conversion or consolidation to the Trustee succeeds to the trusts created
by this Indenture, any of the Notes have been authenticated, but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Notes so authenticated; and, in case at that time any
of the Notes have not been authenticated, any such successor to the Trustee may authenticate such Notes, either in the name of
any predecessor Trustee hereunder or in the name of the successor to the Trustee.


 




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Section
7.10         Eligibility; Disqualification. The
Trustee will have (or, in the case of a corporation included in a bank holding company system, the related bank holding company
will have) a combined capital and surplus of at least $100,000,000, as set forth in its (or its related bank holding company’s)
most recent published annual report of condition. The Trustee will also comply with TIA § 310(b). Nothing in this Indenture
will prevent the Trustee from filing with the SEC any application referred to in the penultimate paragraph of TIA § 310(b).


 


Section
7.11         Trustee’s Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action will be taken or such omission will be effective. The Trustee will not be liable to the Company
for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the
date specified in such application (which date will not be less than three Business Days after the date the Company is deemed
to have received such application pursuant to Section 12.02 hereof, unless any such Officer has consented in writing to any earlier
date), unless prior to taking any such action (or the effective date in the case of any omission), the Trustee has received written
instructions in response to such application specifying the action to be taken or omitted.


 


Section
7.12         Preferential Collection of Claims Against the Company. The
Trustee will comply with TIA § 311(a), excluding any creditor relationship set forth in TIA § 311(b). A Trustee who
has resigned or been removed will be subject to TIA § 311(a) to the extent set forth therein.


 


Article
8

SATISFACTION AND DISCHARGE


 


Section
8.01         Discharge of Liability on Notes. When (a)(i) the Company delivers
to the Trustee all outstanding Notes (other than Notes replaced pursuant to Section 2.11 hereof) for cancellation; or (ii) all
outstanding Notes have become due and payable, and the Company irrevocably deposits with the Trustee or delivers to the Holders,
as applicable, cash (or, solely to satisfy amounts due and owing as a result of conversions of the Notes, Conversion Consideration),
sufficient to pay all amounts due and owing on all outstanding Notes (other than Notes replaced pursuant to Section 2.11 hereof);
(b) the Company pays all other sums payable by it under this Indenture; and (c) the Company delivers to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all of the applicable conditions precedent to the discharge of this Indenture
described in this section have been satisfied, then, subject to Section 7.07 hereof, this Indenture will cease to be of further
effect with respect to the Notes and the Holders and the Trustee will acknowledge the satisfaction and discharge of this Indenture
with respect to the Notes.


 


Notwithstanding the satisfaction
and discharge of this Indenture, (i) any obligation of the Company to any Holder under Article 10 hereof with respect to the conversion
of any Note or to the Trustee under Article 7 hereof with respect to compensation or indemnity; and (ii) any obligation of the
Trustee with respect to money deposited with the Trustee under this Article 8 and Section 12.02 hereof will survive.


 




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Section
8.02         Repayment to the Company. Subject
to any applicable unclaimed property law, the Trustee and the Paying Agent, upon receiving a written request from the Company,
will promptly turn over to the Company any cash, Conversion Consideration or other property held for payment on the Notes that
remains unclaimed two years after the date on which such payment was due. After the Trustee and the Paying Agent return such cash,
Conversion Consideration or other property to the Company, the Trustee and the Paying Agent will have no further liability to
any Holder with respect to such cash, Conversion Consideration or other property, and any Holder entitled to the payment of such
cash, Conversion Consideration or other property under the Notes or this Indenture must look to the Company for payment as a general
creditor of the Company.


 


Article
9

AMENDMENTS, SUPPLEMENTS AND WAIVERS


 


Section
9.01         Without Consent of Holders. The
Company and the Trustee may amend or supplement this Indenture or the Notes without the consent of any Holder to:


 


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


 


(b)          secure
the Notes;


 


(c)          provide
for the assumption of the Company’s obligations under this Indenture and under the Notes by a Reorganization Successor Corporation
as set forth in Article 5 hereof;


 


(d)          provide
for the assumption of the Company’s obligations under this Indenture and under the Notes by a Successor Person as set forth
in Section 10.08 hereof or to modify the conversion rights of the Holders in accordance with Section 10.08 hereof upon the occurrence
of a Common Stock Change Event;


 


(e)          surrender
any right or power conferred upon the Company under this Indenture;


 


(f)          add
to the Company’s covenants or Events of Default for the benefit of the Holders;


 


(g)          cure
any ambiguity or correct any inconsistency or defect in this Indenture or in the Notes;


 


(h)          make
or change any provisions with respect to questions arising under this Indenture, provided that such action, individually
or in the aggregate with all other such actions, shall not adversely affect the rights and interests of the Holders in any material
respect, as determined in good faith by the Board of Directors and evidenced by resolutions of the Board of Directors;


 




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(i)          make
any amendment to the provisions of this Indenture relating to the transfer and legending of the Notes as permitted by this Indenture,
including to facilitate the issuance and administration of Notes; provided, however, that (i) compliance with this Indenture
as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law;
and (ii) such amendment, individually or in the aggregate with all other such amendments, does not adversely affect the rights
and interests of the Holders to transfer Notes in any material respect;


 


(j)          provide
for or confirm the issuance of additional Notes in accordance with this Indenture;


 


(k)          enter
into supplemental indentures hereto in connection with a Common Stock Change Event pursuant to Section 10.08(a);


 


(l)          comply
with any requirement of the SEC in connection with any qualification of this Indenture or any supplemental indenture under the
TIA as then in effect;


 


(m)          evidence
the acceptance of appointment by a successor Trustee with respect to this Indenture;


 


(n)          comply
with the rules of any applicable Depositary;


 


(o)          conform
the provisions of this Indenture and the form or terms of the Notes to the “Description of Notes” section of the Preliminary
Offering Memorandum, as supplemented by the Pricing Term Sheet; or


 


(p)          to
make any other change to this Indenture and the form or terms of the Notes; provided that no such change individually,
or in the aggregate with all other such changes, shall adversely affect the rights and interests of the Holders in any material
respect.


 


Section
9.02         With Consent of Holders. With
the written consent of the Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (including
consents obtained in connection with a repurchase of, or tender offer or exchange offer for, Notes), by Act of such Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board Resolution, may amend or supplement this Indenture or
the Notes or waive compliance with any provision of this Indenture or the Notes; provided, however, that, without the consent
of each affected Holder, no amendment or supplement to this Indenture or the Notes, or waiver of any provision of this Indenture
or the Notes, may:


 


(a)          reduce
the principal amount of, or change the Maturity Date of, any Note;


 


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


 


(c)          reduce
the Fundamental Change Repurchase Price of any Note or change the time at which, or the circumstances under which, the Notes may,
or will be, repurchased;


 


(d)          impair
the right of any Holder to institute suit for any payment on any Note, including with respect to any consideration due upon conversion
of a Note;


 




    	- 52 -



    	 



    

 


(e)          make
any Note payable in a currency other than that stated in the Note;


 


(f)          make
any change that impairs or adversely affects the conversion rights of any Holder under Article 10 hereof or otherwise reduces
the number of shares of Common Stock, the amount of cash or any other property receivable by a Holder upon conversion;


 


(g)          change
the ranking of the Notes;


 


(h)          make
any change to any amendment, modification or waiver provision of this Indenture that requires the consent of each affected Holder;
or


 


(i)          reduce
the percentage of the aggregate principal amount of then outstanding Notes whose Holders must consent to an amendment or modification
of this Indenture or a waiver of a past Default.


 


It will not be necessary
for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or modification,
but it will be sufficient if such consent approves the substance of such proposed amendment or modification.


 


Section
9.03         Compliance with TIA. Each amendment,
waiver or supplement to this Indenture or the Note will comply with the TIA as then in effect.


 


Section
9.04         Execution of Supplemental Indentures. Upon
the written request of the Company and subject to Section 9.09 hereof, the Trustee will sign any supplemental indenture authorized
pursuant to this Article 9 if the amendment contained therein does not affect the rights, duties, liabilities or immunities of
the Trustee under this Indenture. If the supplemental indenture adversely affects the Trustee’s rights, duties, liabilities
or immunities under this Indenture, then the Trustee may, but need not, sign such supplemental indenture.


 


Section
9.05         Notices of Supplemental Indentures. After
an amendment or supplement to this Indenture or the Notes pursuant to Sections 9.01 or 9.02 hereof becomes effective, the Company
will promptly deliver notice (or the Trustee, at the direction and expense of the Company, will promptly deliver notice prepared
by the Company) to each Holder of such amendment or supplement, which notice will briefly describe the substance of such amendment
or supplement to this Indenture in reasonable detail and state the effective date of such amendment or supplement. The failure
to deliver such notice to each Holder or the Trustee, or any defect in such notice, will not impair or otherwise affect the validity
of such amendment or supplement to this Indenture.


 


Section
9.06         Effect of Supplemental Indentures. 
Upon the execution of any supplemental indenture under this Article 9:


 


(a)          this
Indenture will be modified in accordance therewith;


 


(b)          such
supplemental indenture will form a part of this Indenture for all purposes; and


 




    	- 53 -



    	 



    

 


(c)          every
Holder of Notes theretofore, or thereafter, authenticated and delivered hereunder will be bound thereby.


 


Section
9.07         Revocation and Effect of Consents, Waivers and Actions.


 


(a)          Revocation.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder,
and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note,
even if notation of the consent is not made on any Note. However, any such Holder, or subsequent Holder, may revoke the consent
as to its Note or portion of a Note if a Trust Officer receives the notice of revocation before the date the amendment, supplement
or waiver becomes effective.


 


(b)          Special
Record Dates. The Company may, but is not obligated to, fix a record date for the purpose of determining the Holders entitled
to give their consent or take any other action described above or required, or permitted, to be taken pursuant to this Indenture.
If a record date is fixed, then those Persons who were Holders at such record date (or their duly designated proxies), and only
those Persons, 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. No such consent will be valid or effective for more than
120 days after such record date.


 


(c)          Binding
Effect. After an amendment, supplement or waiver becomes effective, it will bind every applicable Holder. Any amendment or
supplement will become effective in accordance with the terms of the supplemental indenture relating thereto, which will become
effective upon the execution thereof by the Trustee.


 


Section
9.08         Notation on, or Exchange of, Notes. If
any amendment, supplement or waiver changes the terms of a Note, the Trustee or the Company may require the Holder of such Note
to deliver such Note to the Trustee. The Trustee may place an appropriate notation prepared by the Company on such Note about
the changed terms and return it to the Holder. Alternatively, if the Company so determines, the Company, in exchange for the Note,
will issue and the Trustee will authenticate, in accordance with Section 2.05, a new Note that reflects the changed terms.


 


Section
9.09         Trustee to Sign Amendments. The
Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article 9 if the amendment or supplement
does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive, and (subject to Section 7.01 and Section 7.02) will be fully protected in
conclusively relying upon, in addition to the documents required by Section 12.04 hereof, an Officers’ Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture
and is valid, binding and enforceable against the Company in accordance with its terms.


 




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Article
10

CONVERSIONS


 


Section
10.01         Right To Convert.


 


(a)          In
General. Subject to, and upon compliance with, the provisions of this Article 10, at any time prior to the Close of Business
on the second (2nd) Business Day immediately preceding the Maturity Date, a Holder may, at its option, convert any Note (or any
portion thereof in an Authorized Denomination) into Conversion Consideration, as provided in this Article 10. Notes may not be
converted after the Close of Business on the second (2nd) Business Day immediately preceding the Maturity Date.


 


(b)          Closed
Periods. Notwithstanding anything to the contrary in this Indenture, if a Holder tenders a Repurchase Notice with respect
to any Note in accordance with Article 3 hereof, such Note may not be converted except to the extent (i) such Note is not subject
to such Repurchase Notice; (ii) such Repurchase Notice is withdrawn in accordance with Article 3 hereof; or (iii) the Company
fails to pay the Fundamental Change Repurchase Price for such Note in accordance with Section 3.08 hereof.


 


Section
10.02         Conversion Procedures.


 


(a)          General.
To exercise its conversion right with respect to a beneficial interest in a Global Note, the owner of such beneficial interest
must (i) comply with the Applicable Procedures for converting such beneficial interest; and (ii) pay any amounts due pursuant
to Section 10.02(d) or Section 10.02(e).


 


To exercise its conversion
right with respect to a Physical Note, the Holder of such Note must (i) complete and manually sign the conversion notice on the
back of the Note, or a facsimile of such conversion notice (such notice, or such facsimile, the “Conversion Notice”);
(ii) deliver such signed and completed Conversion Notice, which shall be irrevocable, and such Note to the Conversion Agent at
its office; (iii) furnish any endorsements and transfer documents that the Company, Conversion Agent, Trustee or Transfer Agent
may require; and (iv) pay any amounts due pursuant to Section 10.02(d) or Section 10.02(e).


 


The first Business Day
on which a Holder satisfies the foregoing requirements with respect to a Note and on which conversion of such Note is not otherwise
prohibited under this Indenture will be the “Conversion Date” for such Note. If a Holder has delivered a Fundamental
Change Repurchase Notice with respect to a Note, the Holder may not surrender that Note for conversion until the Holder has withdrawn
such Fundamental Change Repurchase Notice in accordance with Section 3.04.


 


The conversion of any
Note will be deemed to occur at the Close of Business on the Conversion Date for such Note, and any converted Note or portion
thereof will cease to be outstanding upon conversion.


 




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(b)          Holder
of Record. If a Holder surrenders the entire principal amount of a Note for conversion, such Person will no longer be the
Holder of such Note as of the Close of Business on the Conversion Date for such Note.


 


The person in whose name
any shares of Common Stock are issuable upon conversion of any Note will become the holder of record of such shares as of the
Close of Business on the Conversion Date for such conversion.


 


(c)          Conversions
in Part. If a Holder surrenders only a portion of the principal amount of a Physical Note for conversion, promptly after the
Conversion Date for such portion, the Company will, in accordance with Section 2.05 hereof, execute and deliver to the Trustee,
and the Trustee will, upon receipt of a Company Order, in accordance with Section 2.05 hereof, authenticate and deliver to such
Holder a new Physical Note in an Authorized Denomination, having a principal amount equal to the aggregate principal amount of
the unconverted portion of the Physical Note surrendered for conversion and bearing each legend, if any, required by Section 2.09
hereof.


 


Upon the conversion of
any beneficial interest in a Global Note, the Conversion Agent will promptly request that the Trustee make a notation on the “Schedule
of Increases and Decreases of Global Note” of such Global Note to reduce the principal amount represented by such Global
Note by the principal amount of the converted beneficial interest. If all of the beneficial interests in a Global Note are so
converted, such Global Note will be deemed surrendered to the Trustee for cancellation, and the Trustee will cause such Global
Note to be cancelled in accordance with the Applicable Procedures.


 


(d)          Reimbursement
of Interest upon Conversion. If a Holder converts a Note after the Close of Business on a Regular Record Date, but prior to
the Open of Business on the Interest Payment Date corresponding to such Regular Record Date, then (x) the Holder of such Note
at the Close of Business on such Regular Record Date shall be entitled, notwithstanding such conversion, to receive, on the date
the Company delivers (or is required to deliver) the Conversion Consideration due in respect of such conversion, 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 (y) the Holder of such Note must, upon surrender of such
Note for conversion, accompany such Note with an amount of cash equal to the amount of such interest referred to in clause (x)
above; provided, however, that a Holder need not make such payment (A) for conversions following the Regular Record
Date immediately preceding the Maturity Date; (B) if the Company has specified a Fundamental Change Repurchase Date that is after
such Regular Record Date and on or prior to the Business Day immediately following such Interest Payment Date; or (C) to the extent
of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note. For the avoidance
of doubt, a Holder of a Note at the Close of Business on the Regular Record Date immediately preceding the Maturity Date will
be entitled to receive interest that accrues (or would have accrued) on such Note to, but excluding, the Maturity Date notwithstanding
any conversion of such Note.


 




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(e)          Taxes
and Duties. If a Holder converts a Note, the Company will pay any documentary, stamp or similar issue or transfer tax due
on the issue of any shares of the Common Stock upon the conversion; provided, however, that if any tax is due because
the converting Holder requested that shares of Common Stock be issued in a name other than its own, such Holder will pay such
tax and the Company, until having received a sum sufficient to pay such tax, may refuse to deliver any certificates representing
the shares of Common Stock being issued in a name other than that of such Holder.


 


(f)          Notices.
Whenever a Conversion Date occurs with respect to a Note, the Conversion Agent will, as promptly as possible, and in no event
later than the Business Day immediately following such Conversion Date, deliver to the Company and the Trustee notice that a Conversion
Date has occurred, which notice will state such Conversion Date, the principal amount of Notes converted on such Conversion Date
and the names of the Holders that converted Notes on such Conversion Date.


 


(g)          Restrictions
on Conversion. Notwithstanding anything to the contrary in this Indenture or the Notes, no Note will be convertible by the
Holder thereof, and the Company will not effect any conversion of any Note, in each case to the extent (and only to the extent)
that such convertibility or conversion would result in such Holder or any of its Affiliates beneficially owning in excess of 9.99%
of the then-outstanding shares of Common Stock. For these purposes, beneficial ownership and all determinations and calculations
(including with respect to calculations of percentage ownership) will be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. For the avoidance of doubt, Notes whose convertibility is restricted
pursuant to this Section 10.02(g) will continue to be outstanding, and their convertibility will be reinstated if and when the
convertibility and conversion will not violate the limitations set forth in this Section 10.02(g).


 


Section
10.03         Settlement Upon Conversion.


 


(a)          Conversion
Obligation.


 


(i)          Conversion
Consideration. Subject to the terms hereof, upon conversion of any Note, the consideration (the “Conversion Consideration”)
due in respect of each $1,000 principal amount of a Note to be converted will consist of (I) a whole number of shares of Common
Stock equal to the Conversion Rate in effect on the Conversion Date for such conversion (which, if not a whole number, will be
rounded down to the nearest whole number); and (II) if such Conversion Rate is not a whole number, cash in lieu of the related
fractional share in an amount equal to the product of (x) the Last Reported Sale Price per share of Common Stock on such Conversion
Date (or, if such Conversion Date is not a Trading Day, the immediately preceding Trading Day) and (y) the fractional portion
of such Conversion Rate.


 


(ii)         Delivery
of Conversion Consideration. Except as set forth in Section 10.05, the Company will pay or deliver, as the case may be, the
Conversion Consideration due upon the conversion of any Note to the Holder thereof on the third (3rd) Business Day immediately
following the Conversion Date for such conversion.


 




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(iii)        Conversion
of Multiple Notes by a Single Holder. If a Holder converts more than one Note on a single Conversion Date, the Conversion
Consideration due in respect of such conversion will be computed based on the total principal amount of Notes converted on such
Conversion Date by such Holder.


 


(b)          Settlement
of Accrued Interest and Deemed Payment of Principal. If a Holder converts a Note, the Company will not adjust the Conversion
Rate to account for any accrued and unpaid interest on the Note, and, except as provided in Section 10.02(d), the Company’s
delivery of the Conversion Consideration due upon such conversion will be deemed to satisfy and discharge in full the Company’s
obligation to pay the principal of such Note and accrued and unpaid interest, if any, on, such Note to, but excluding the Conversion
Date. As a result, except as provided in Section 10.02(d), any accrued and unpaid interest with respect to a converted Note will
be deemed to be paid in full rather than cancelled, extinguished or forfeited.


 


Section
10.04         Common Stock Issued Upon Conversion.


 


(a)          The
Company will reserve out of its authorized but unissued shares of Common Stock, and keep available to satisfy conversions of the
Notes, a number of shares of Common Stock sufficient to permit the conversion of all then-outstanding Notes, after giving effect
to the largest number of Additional Shares that may from time to time be added to the Conversion Rate as provided in Section 10.07.


 


(b)          Any
shares of Common Stock delivered upon the conversion of the Notes will be newly issued shares or treasury shares, duly and validly
issued, fully paid, nonassessable, 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 or other Person to whom such shares of Common Stock
will be delivered). In addition, the Company will endeavor to comply promptly with all federal and state securities laws regulating
the offer and delivery of any shares of Common Stock issuable upon conversion of the Notes. The Company will also use its best
efforts to cause any shares of Common Stock issuable upon conversion of a Note to be listed on whatever stock exchange(s) the
Common Stock is listed on the date the converting Holder becomes a record holder of such Common Stock.


 


Section
10.05         Adjustment of Conversion Rate. The
Company will adjust the Conversion Rate from time to time as described in this Section 10.05, except that the Company will not
make an adjustment to the Conversion Rate if each Holder participates (other than in a share split or share combination), at the
same time and upon the same terms as holders of the Common Stock, and solely as a result of holding the Notes, in the relevant
transaction described in this Section 10.05 without having to convert its Notes and as if it held a number of shares of the Common
Stock equal to the product of (i) the Conversion Rate in effect on the applicable record date, Effective Date or expiration date;
and (ii) the aggregate principal amount of Notes held by such Holder (expressed in thousands) on such date.


 


(a)          Stock
Dividends and Share Splits. If the Company exclusively issues to all or substantially all holders of the Common Stock shares
of Common Stock as a dividend or distribution on shares of the outstanding Common Stock, or if the Company effects a share split
of the Common Stock or a share combination of the Common Stock (excluding an issuance solely pursuant to a Common Stock Change
Event, as to which the provisions set forth in Section 10.08(a) hereof will apply), the Conversion Rate will be adjusted based
on the following formula:


 




    	- 58 -



    	 



    

 


 


 


where:


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open
    of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the
    Effective Date of such share split or share combination, as applicable;
	 	 	 
	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 prior to the
    Open of Business on such Ex-Dividend Date or Effective Date, as applicable; and
	 	 	 
	OS1	=	the number of shares of Common Stock outstanding immediately after giving
    effect to such dividend, distribution, share split or share combination, as applicable.


 


Such adjustment shall become
effective immediately after the Open of Business on such Ex-Dividend Date or Effective Date, as applicable. If any dividend, distribution,
share split or share combination of the type described in this Section 10.05(a) is declared, but not so paid or made, the Conversion
Rate will be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution
or to effect such share split or share combination, to the Conversion Rate that would then be in effect if such dividend, distribution,
share split or share combination had not been declared or announced.


 


(b)          Rights,
Options and Warrants. If the Company issues, to all or substantially all holders of its outstanding Common Stock, rights,
options or warrants entitling such holders, for a period of not more than sixty (60) calendar days after the record date of such
issuance, to subscribe for, or purchase, shares of Common Stock, at a price per share less than the average of the Last Reported
Sale Prices per share of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of such issuance, then, subject to the provisions described below with respect
to rights issued pursuant to a stockholder rights plan, the Conversion Rate will be increased based on the following formula:


 




    	- 59 -



    	 



    

 


 


 


where:


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open
    of Business on the Ex-Dividend Date for such issuance;
	 	 	 
	CR1	=	the Conversion Rate in effect immediately after the Open of Business on
    such Ex-Dividend Date;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to the
    Open of Business on such Ex-Dividend Date;
	 	 	 
	X	=	the total number of shares of Common Stock issuable pursuant to such rights,
    options or warrants; and
	 	 	 
	Y	=	the number of shares of Common Stock equal to the quotient of (i) the aggregate
    price payable to exercise such rights, options or warrants, over (ii) the average of the Last Reported Sale Prices per share
    of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
    the date of announcement of the issuance of such rights, options or warrants.


 


Such adjustment shall become
effective immediately after the Open of Business on such Ex-Dividend Date. To the extent that shares of Common Stock are not delivered
after the expiration of such rights, options or warrants, including because the issued rights, options or warrants were not exercised,
the Conversion Rate will be readjusted to the Conversion Rate that would then be in effect had the increase with respect to the
issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually
delivered. If such rights, options or warrants are not so issued, the Conversion Rate will be readjusted to the Conversion Rate
that would then be in effect if the Ex-Dividend Date for such issuance had not occurred.


 


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


 


(c)          Spin-Offs
and Other Distributed Property.


 


(i)          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:


 




    	- 60 -



    	 



    

 


(A)         dividends,
distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 10.05(a) hereof or Section
10.05(b) hereof, as applicable;


 


(B)         dividends
or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 10.05(d) hereof;


 


(C)         Spin-Offs
for which the provisions described in Section 10.05(c)(ii) hereof will apply; and


 


(D)         an
issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 10.08(a) hereof will
apply,


 


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


 


 


 


where:


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open
    of Business on the Ex-Dividend Date for such distribution;
	 	 	 
	CR1	=	the Conversion Rate in effect immediately after the Open of Business on
    such Ex-Dividend Date;
	 	 	 
	SP0	=	the average of the Last Reported Sale Prices per share of the Common Stock
    over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend
    Date for such distribution; and
	 	 	 
	FMV	=	the fair market value (as determined by the Company’s Board of Directors)
    of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with
    respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution.


 


Such adjustment
shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV”
(as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase,
each Holder will receive, for each $1,000 principal amount of Notes held on the record date for the distribution, at the same
time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness,
assets or property, rights, options or warrants or other securities that such Holder would have received if such Holder had owned
a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution.


 




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If any distribution
of the type described in this Section 10.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised
before their expiration date, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if
such distribution had not been declared.


  


(ii)         With
respect to an adjustment pursuant to this Section 10.05(c) where there has been a payment of a dividend or other distribution
on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate,
a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or
will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable
non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event
as to which the provisions described in Section 10.08(a) hereof apply, the Conversion Rate will be increased based on the following
formula:


  


 


 


where:


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open
    of Business on the Ex-Dividend Date for such Spin-Off;
	 	 	 
	CR1	=	the Conversion Rate in effect immediately after the Open of Business on
    such Ex-Dividend Date;
	 	 	 
	FMV0	=	the average of the Last Reported Sale Prices of the Capital Stock or similar
    equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes
    of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over
    the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation
    Period”); and
	 	 	 
	MP0	=	the average of the Last Reported Sale Prices per share of the Common Stock
    over the Valuation Period.


 


Such adjustment
shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate
under this Section 10.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period
but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Notwithstanding
anything to the contrary herein or in the Notes, if necessary, the Company shall delay the settlement of any conversion of Notes
where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation
Period. If any distribution of the type described in this Section 10.05(c)(ii) is declared but not so made, the Conversion Rate
shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to
the Conversion Rate that would then be in effect if such distribution had not been declared.


  



    	- 62 -



    	 



    

 


(d)          Cash
Dividends or Distributions. If any cash dividend or distribution (other than a distribution as to which an adjustment to the
Conversion Rate was effected pursuant to Section 10.05(e) hereof) is made to all or substantially all holders of the Common Stock,
the Conversion Rate will be increased based on the following formula:


 


 


 


where:


 


	CR0	=	the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	CR1	=	the Conversion Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	SP0	=	the Last Reported Sale Price per share of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
	 	 	 
	C	=	the amount in cash per share the Company distributes to holders of Common Stock.




 


Such adjustment shall become
effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “C” (as
defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase,
each Holder will receive, for each $1,000 principal amount of Notes held on the record date for such cash dividend or distribution,
at the same time and upon the same terms as holders of the Common Stock, the amount of cash that such Holder would have received
if such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on such record date. If any
dividend or distribution of the type described in this Section 10.05(d) is declared but not so paid or made, the Conversion Rate
will be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.


 


(e)          Tender
Offers or Exchange Offers. If the Company or any Subsidiary makes a payment in respect of a tender offer or exchange offer
for the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common
Stock exceeds the Last Reported Sale Price per share of the Common Stock on the Trading Day next succeeding the last date (the
“Expiration Date”) on which tenders or exchanges may be made pursuant to such tender offer or exchange offer
(as it may be amended), the Conversion Rate will be increased based on the following formula:


 




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where:


 


	CR0	=	the Conversion Rate in effect immediately prior to the Expiration
    Time (as defined below);
	 	 	 
	CR1	=	the Conversion Rate in effect immediately after the Expiration Time;
	 	 	 
	AC	=	the aggregate value of all cash and any other consideration (as determined
    by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to the
    time (the “Expiration Time”) on the date such tender or exchange offer expires (prior to giving effect
    to the purchase of all shares 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 (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer);
    and
	 	 	 
	SP1	=	the average of the Last Reported Sale Prices per share of the Common Stock
    over the 10 consecutive Trading Day period (the “Averaging Period”) commencing on the Trading Day next
    succeeding the Expiration Date.


 


The adjustment to the Conversion
Rate pursuant to this Section 10.05(e) will be calculated as of the Close of Business on the last Trading Day of the Averaging
Period but will be given effect as of immediately after the Expiration Time. Notwithstanding anything to the contrary herein or
in the Notes, if necessary, the Company shall delay the settlement of any conversion of Notes where the Conversion Date occurs
during the Averaging Period until the third (3rd) Business Day after the last day of the Averaging Period.


 


(f)          Successive
Adjustments. After an adjustment to the Conversion Rate under this Article 10, any subsequent event requiring an adjustment
under this Article 10 will cause an adjustment to the Conversion Rate as so adjusted, without duplication.


 


(g)          Limitations
Imposed by Stock Market Listing Standards. The Company will not enter into any transaction, or take any other voluntary action,
that would result in an adjustment to the Conversion Rate that would violate the listing standards of any securities exchange
on which any securities of the Company may be then listed, without complying, if applicable, with the requirements of such listing
standards.


 


(h)          Special
Settlement Provisions. Notwithstanding anything to the contrary herein, if:


 




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(i)          a
Note is to be converted and, as of the Conversion Date for such conversion, any transaction or other event that requires an adjustment
to the Conversion Rate pursuant to Sections 10.05(a) through (e) has occurred but has not yet resulted in an adjustment to the
Conversion Rate;


 


(ii)         the
consideration due upon such conversion consists of any shares of Common Stock; and


 


(iii)        such
shares of Common Stock are not entitled to participate in such transaction or event because they were not held on the related
record date or otherwise,


 


then, solely for purpose
of such conversion, the Company shall, without duplication, give effect to such adjustment on such Conversion Date.


 


In addition, notwithstanding
anything to the contrary herein, if:


 


(i)          a
Conversion Rate adjustment for any transaction or other event becomes effective on any Ex-Dividend Date pursuant to Sections 10.05(a)
through (e);


 


(ii)         a
Note is to be converted;


 


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


 


(iv)        the
consideration due upon such conversion includes any whole shares of Common Stock; and


 


(v)         the
Holder of such Note would be treated, on such record date, as the record holder of such shares of Common Stock based on a Conversion
Rate that is adjusted for such event,


 


then such Conversion Rate
adjustment shall not be given effect for such conversion. Instead, such Holder will be treated as if such Holder were, as of such
record date, the record holder of such shares of Common Stock on an unadjusted basis and will participate in such transaction
or event.


 


(i)          Shareholder
Rights Plans. If the Company has a rights plan in effect when a Holder converts a Note, the Company will deliver to such Holder,
to the extent such Holder receives any shares of Common Stock upon such conversion of such Note, any rights that, under the rights
plan, would be applicable to a share of Common Stock, unless prior to the Conversion Date for such Note, the rights have separated
from the Common Stock, in which case, and only in such case, the Conversion Rate will be adjusted pursuant to Section 10.05(c)(i)
as if, at the time of such separation, the Company had distributed to all holders of the Common Stock shares of its Capital Stock,
evidences of its indebtedness, other assets or property of the Company or rights, options or warrants to acquire its Capital Stock
or other securities, subject to readjustment in the event of the expiration, termination or redemption of such rights.


 




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(j)          Other
Adjustments. Whenever any provision of this Indenture requires the calculation of the Last Reported Sale Price or a function
thereof over a period of multiple days (including the Stock Price for purposes of a Make-Whole Fundamental Change), the Company
will make appropriate adjustments to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring
an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or expiration date of the event occurs, at any
time during such period.


 


(k)          Restrictions
on Adjustments. Except as a result of a reverse share split or a share combination subject to Section 10.05(a), and except
for readjustments pursuant to the last paragraph of Section 10.05(a), readjustments pursuant to the penultimate paragraph of Section
10.05(b), readjustments pursuant to the last paragraph of Section 10.05(c)(i), readjustments pursuant to the penultimate paragraph
of Section 10.05(c)(ii) and readjustments pursuant to Section 10.05(d), in no event will the Conversion Rate be adjusted downward
pursuant to Sections 10.05(a), (b), (c), (d) or (e) hereof.


 


In addition, notwithstanding
anything to the contrary elsewhere in this Indenture, the Conversion Rate will not be adjusted:


 


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


 


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


 


(iii)        upon
the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible
security not described in the preceding clause and outstanding as of the date of the Issue Date;


 


(iv)        upon
the repurchase of any shares of Common Stock pursuant to an open-market share repurchase program or other buy-back transaction
that is not a tender offer or exchange offer subject to Section 10.05(e);


 


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


 


(vi)        for
accrued and unpaid interest.


 


(l)          Miscellaneous.


 


(i)          Certain
Definitions.


 


(II)        For
purposes of this Section 10.05, (1) the number of shares outstanding at any time will include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock; but, (2) so long as the Company does not pay any dividend
or make any distribution on shares of Common Stock held in the treasury of the Company, will not include shares of Common Stock
held in the treasury of the Company.


 




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(III)       For
purposes of this Section 10.05, the term “Effective Date” will mean the first date on which the Common Stock
trades on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination,
as applicable.


 


(IV)        For
purposes of this Article 10, the term “Ex-Dividend Date” will mean the first date on which the shares of the
Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance,
dividend or distribution in question.


 


(ii)         Notices.
Whenever the Company adjusts (or is required to adjust) the Conversion Rate pursuant to this Section 10.05, the Company will promptly
deliver to each Holder a written notice, which notice will include (i) a brief description of the event requiring adjustment to
the Conversion Rate pursuant to this Section 10.05; (ii) the effective time of such adjustment; (iii) the Conversion Rate in effect
immediately after such adjustment is made; and (iv) a schedule explaining, in reasonable detail, how the Company calculated such
adjustment. On the same day the Company delivers such notice to each Holder, the Company will deliver to the Trustee, the Paying
Agent and the Conversion Agent an Officers’ Certificate that includes all of the information contained in such notice, which
Officers’ Certificate each of the Trustee, the Paying Agent and the Conversion Agent may treat as conclusive evidence that
the adjustment specified in such Officers’ Certificate is correct and will be in effect as of the effective time specified
in such Officers’ Certificate. The failure to deliver such notice will not affect the legality or validity of any such adjustment.


 


(iii)        All
calculations and other determinations in respect of the Conversion Rate will be made by the Company to the nearest 1/10,000th
of a share, with 5/100,000ths rounded upward.


 


Section
10.06         Voluntary Adjustments.


 


(a)          Best
Interest Increases. The Company may, from time to time, to the extent permitted by law and the applicable rules of any exchange
on which the Common Stock is listed, increase the Conversion Rate by any amount if (i) the Board of Directors determines that
such increase is in the best interest of the Company; (ii) such increase is in effect for a period of at least 20 Business Days;
and (iii) during such period, such increase is irrevocable.


 


(b)          Tax-Related
Increases. To the extent permitted by law and the applicable rules of any exchange on which the Common Stock is listed, the
Company may (but is not required to) increase the Conversion Rate if the Board of Directors determines that such increase is advisable
to avoid, or diminish, any income tax imposed on holders of the Common Stock or rights to purchase the Common Stock as a result
of any dividend or distribution of shares (or rights to acquire shares) or similar event treated as such for U.S. federal income
tax purposes.


 




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(c)          Notices.
Whenever the Board of Directors determines that the Company will increase the Conversion Rate pursuant to this Section 10.06,
the Company will deliver to the Trustee, the Conversion Agent and each Holder (in compliance with the Applicable Procedures, if
applicable) notice of such increase at least fifteen (15) Business Days before such increase will take effect, which notice will
state the increase to be made and the period during which such increase will be in effect.


 


Section
10.07         Adjustments Upon Certain Fundamental Changes.


 


(a)          General.
If a Fundamental Change (determined after giving effect to the penultimate paragraph of the definition thereof, but without regard
to the exclusion in clause (b)(ii) of the definition thereof) occurs (a “Make-Whole Fundamental Change”), and
a Holder converts its Notes “in connection with” such Make-Whole Fundamental Change, the Company will, in the circumstances
described in this Section 10.07, increase the Conversion Rate for such Notes by the number of additional shares of Common Stock
(the “Additional Shares”) set forth in this Section 10.07. For purposes of this Section 10.07, a conversion
of Notes will be deemed to be “in connection with” a Make-Whole Fundamental Change if the applicable Conversion Date
occurs during the period from, and including, the effective date of the Make-Whole Fundamental Change up to, and including, the
Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental
Change that would have been a Fundamental Change but for the exclusion in clause (b)(ii) of the definition thereof, the thirty
fifth (35th) Trading Day immediately following the effective date of such Make-Whole Fundamental Change).:


 


As promptly as practicable,
but in no event later than the Business Day after the effective date of a Make-Whole Fundamental Change, the Company will notify
the Holders, the Trustee and the Conversion Agent of such effective date and issue a press release announcing such effective date.


 


(b)          Determination
of Additional Shares. The number of Additional Shares, if any, by which the Conversion Rate will be increased if a Holder
converts a Note in connection with a Make-Whole Fundamental Change will be determined by reference to the table below, and will
be based on the Make-Whole Fundamental Change Effective Date and the Stock Price for such Make-Whole Fundamental Change. For any
Make-Whole Fundamental Change, the “Make-Whole Fundamental Change Effective Date” will mean the date on which
such Make-Whole Fundamental Change occurs or becomes effective.


 


(c)          Adjustment
of Stock Prices and Additional Shares. The Stock Prices set forth in the first row (i.e., the column headers) of the
table below will be adjusted on each date on which the Conversion Rate must be adjusted pursuant to Section 10.05. The adjusted
Stock Prices will equal the Stock Prices in effect immediately prior to such adjustment, multiplied by a fraction, (i) the numerator
of which is the Conversion Rate in effect immediately prior to the adjustment giving rise to the share price adjustment; and (ii)
the denominator of which is the Conversion Rate in effect immediately after the adjustment. The numbers of Additional Shares set
forth in the table below will be adjusted in the same manner, at the same time and for the same events for which the Conversion
Rate is adjusted pursuant to Section 10.05 hereof.


 




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(d)          Additional
Shares Table. The following table sets forth hypothetical Make-Whole Fundamental Change Effective Dates, Stock Prices and
the number of Additional Shares by which the Conversion Rate will be increased per $1,000 principal amount of Notes for a Holder
that converts a Note in connection with a Make-Whole Fundamental Change having such Make-Whole Fundamental Change Effective Date
and Stock Price.


 


	 	 	Stock Price
	 
	Effective Date
	 	$3.17	 	 	$3.50	 	 	$3.88	 	 	$5.00	 	 	$6.00	 	 	$8.00	 	 	$12.00	 	 	$16.00	 	 	$24.00	 	 	$30.00	 
	July 30, 2015	 	 	57.9401	 	 	 	50.7543	 	 	 	44.2036	 	 	 	31.3500	 	 	 	24.3350	 	 	 	15.9788	 	 	 	8.1033	 	 	 	4.4119	 	 	 	1.0613	 	 	 	0.0000	 
	July 15, 2016	 	 	57.9401	 	 	 	48.5743	 	 	 	42.0258	 	 	 	29.4560	 	 	 	22.7667	 	 	 	14.9413	 	 	 	7.6433	 	 	 	4.1981	 	 	 	1.0217	 	 	 	0.0000	 
	July 15, 2017	 	 	57.9401	 	 	 	46.1857	 	 	 	39.4871	 	 	 	27.0720	 	 	 	20.7383	 	 	 	13.5750	 	 	 	7.0533	 	 	 	3.9606	 	 	 	1.0129	 	 	 	0.0000	 
	July 15, 2018	 	 	57.9401	 	 	 	43.5600	 	 	 	36.4381	 	 	 	23.9400	 	 	 	18.0050	 	 	 	11.6775	 	 	 	6.1950	 	 	 	3.6238	 	 	 	1.0975	 	 	 	0.0000	 
	July 15, 2019	 	 	57.9401	 	 	 	40.4714	 	 	 	32.4124	 	 	 	19.4720	 	 	 	14.0833	 	 	 	8.9475	 	 	 	4.8458	 	 	 	2.9538	 	 	 	1.0896	 	 	 	0.0000	 
	July 15, 2020	 	 	57.9401	 	 	 	36.3086	 	 	 	26.1057	 	 	 	12.4080	 	 	 	8.2217	 	 	 	5.0950	 	 	 	2.8525	 	 	 	1.8056	 	 	 	0.7650	 	 	 	0.0000	 
	July 15, 2021	 	 	57.9401	 	 	 	28.1971	 	 	 	0.2165	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 



 


(e)          Use
of Additional Shares Table. If the Stock Price and/or Make-Whole Fundamental Change Effective Date for a Make-Whole Fundamental
Change are not set forth in the table above, then:


 


(A)         if
the Stock Price is between two Stock Prices in the table or the Make-Whole Fundamental Change Effective Date is between two Make-Whole
Fundamental Change Effective Dates in the table, the number of Additional Shares by which the Conversion Rate will be increased
for a Holder that converts a Note in connection with such Make-Whole Fundamental Change will be determined by a straight-line
interpolation between the numbers of Additional Shares set forth for the higher and lower Stock Prices listed in the table and
the earlier and later Make-Whole Fundamental Change Effective Dates listed in the table, as applicable, based on a 365- or 366-day
year, as applicable;


 


(B)         if
the Stock Price is greater than $30.00, subject to adjustment in the same manner as the Stock Prices set forth in the column headings
of the table, no Additional Shares will be added to the Conversion Rate; and


 


(C)         if
the Stock Price is less than $3.17 per share, subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table, no Additional Shares will be added to the Conversion Rate.


 


Notwithstanding the foregoing,
in no event will the Conversion Rate be increased as a result of this Section 10.07 to exceed 315.4564 shares of Common Stock
per $1,000 principal amount of Notes, subject to adjustment in the same manner, at the same time and for the same events for which
the Conversion Rate must be adjusted as set forth in Section 10.05 hereof.


 


(f)          Settlement
or Conversion. If a Holder converts a Note in connection with a Make-Whole Fundamental Change, the Company will settle such
conversion by delivering Conversion Consideration in accordance with Section 10.03 hereof; provided, however, that
notwithstanding anything to the contrary in Section 10.03 hereof, if a Holder converts a Note in connection with a Make-Whole
Fundamental Change described in clause (b)(ii) of the definition of Fundamental Change in which the holders of the Common Stock
receive only cash in consideration for their shares of Common Stock, the Company will settle such conversion by delivering to
such Holder, on the third (3rd) Business Day immediately following the Conversion Date for such Note, an amount of cash, for each
$1,000 principal amount of such Note converted, equal to the product of (i) the Conversion Rate on the Conversion Date applicable
to such Note (including any Additional Shares added to such Conversion Rate pursuant to this Section 10.07) and (ii) the Stock
Price for such Make-Whole Fundamental Change.


 




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Section
10.08         Effect of Recapitalization, Reclassification, Consolidation,
Merger or Sale.


 


(a)          General.
If any of the following events occur:


 


(1)         any
recapitalization, reclassification or change of Common Stock (other than (x) a change only in par value, from par value to no
par value or no par value to par value; or (y) changes resulting from a stock split or combination not involving the issuance
of any other class or series of securities);


 


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


 


(3)         any
sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and its Subsidiaries
substantially as an entirety; or


 


(4)         any
statutory share exchange,


 


and, in each case, as a
result of which the Common Stock would be converted into, or exchanged for, or represent solely the right to receive, stock (including
one or more series of the Common Stock), other securities, other property or assets (including cash or any combination thereof)
(any such event, a “Common Stock Change Event” and such stock, other securities, other property or assets,
the “Reference Property,” and the amount and kind of Reference Property that a holder of one share of Common
Stock would be entitled to receive on account of such Common Stock Change Event, a “Reference Property Unit”),
then, notwithstanding anything to the contrary, at the effective time of such transaction, the consideration due upon conversions
of any Notes will be determined in the same manner as if each reference to any number of shares of Common Stock in this Article
10 were instead a reference to the same number of Reference Property Units. For these purposes, the Last Reported Sale Price of
any Reference Property Unit or portion thereof that does not consist of a class of securities will be the fair value of such Reference
Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated
in U.S. dollars, the face amount thereof).


 


If the Reference Property
consists of more than a single type of consideration (determined based in part upon any form of stockholder election), then the
composition of the Reference Property Unit shall be deemed to be (a) the weighted average, per share of Common Stock, of the types
and amounts of consideration received by the holders of Common Stock that affirmatively make such an election; or (b) if no holders
of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received, per share of
Common Stock, by the holders of the Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other
than the Trustee) of such weighted average (if applicable) as soon as practicable after such determination is made.


 




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At or before the effective
date 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 giving effect to the above. Such supplemental indenture shall provide (i) to the extent the Reference Property is comprised,
in whole or in part, of common equity securities, for anti-dilution and other adjustments that are as nearly equivalent as possible
to the adjustments provided for in this Article 10 and (ii) with respect to any Reference Property other than common equity securities
and cash, such anti-dilution adjustments (if any) that the Company reasonably considers appropriate in its good faith determination.
If the Reference Property in respect of any Common Stock Change Event includes shares of stock, securities or other property or
assets of a Person other than the Company or the Successor Person, as the case may be, in such Common Stock Change Event, then
such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect
the interests of the Holders of the Notes, including the right of Holders to require the Company to repurchase their Notes upon
a Fundamental Change pursuant to Article 3, as the Company shall reasonably consider necessary by reason of the foregoing.


 


None of the foregoing
provisions will affect the right of a Holder to convert its Notes as set forth in Section 10.01 and Section 10.02 prior to the
effective date of such Common Stock Change Event.


 


(b)          Notices.


 


(i)          As
soon as practicable upon learning of the anticipated or actual effective date of any Common Stock Change Event, the Company will
deliver written notice of such Common Stock Change Event to each Holder, the Trustee and the Conversion Agent. Such Notice will
include:


 


(A)         a
brief description of such Common Stock Change Event;


 


(B)         the
Conversion Rate in effect on the date the Company delivers such notice;


 


(C)         the
anticipated effective date for the Common Stock Change Event;


 


(D)         that,
on and after the effective date for the Common Stock Change Event, the Notes will be convertible into Reference Property Units
and cash in lieu of fractional Reference Property Units; and


 


(E)         the
composition of the Reference Property Unit for such Common Stock Change Event.


 


(ii)         In
connection with executing a supplemental indenture in accordance with Section 10.08(a) hereof, the Company will:


 




    	- 71 -



    	 



    

 


(A)         file
with the Trustee an Officers’ Certificate briefly describing the Common Stock Change Event, the composition of the Reference
Property Unit for such Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent
under this Indenture to such Common Stock Change Event have been complied with; provided, that the failure to deliver such
Officers’ Certificate shall not affect the validity or legality of such supplemental indenture; and


 


(B)         cause
to be sent to each Holder a notice of the execution of such supplemental indenture and the composition of the Reference Property
Unit for such Common Stock Change Event; provided, that the failure to deliver such notice to any Holder will not affect
the validity or legality of such supplemental indenture.


 


(c)          Successive
Common Stock Change Events. If more than one Common Stock Change Event occurs, this Section 10.08 will apply successively
to each Common Stock Change Event.


 


(d)          Compliance
Covenant. The Company will not become a party to any Common Stock Change Event unless its terms are consistent with this Section
10.08.


 


Section
10.09         No Responsibility of Trustee or Conversion Agent. The
Trustee and the Conversion Agent will not have any duty or responsibility to any Holder to determine whether any facts exist
that require an adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such
adjustment when made, or with respect to the method employed in making the same. Neither the Trustee nor the Conversion Agent
will be responsible for any failure of the Company to deliver the Conversion Consideration due upon the surrender of any
Notes for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article 10. Without limiting the generality of the foregoing, neither the Trustee nor the Conversion Agent
will be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 10.08 hereof, including with respect to the calculation of the amount of Conversion
Consideration receivable by Holders upon the conversion of their Notes after any Common Stock Change Event, and each, subject
to the provisions of Article 7, may accept as conclusive evidence of the correctness of any such provisions, and will be
protected in relying upon, the Officers’ Certificate (which the Company will be obligated to file with the Trustee
promptly following the execution of any such supplemental indenture) with respect thereto. The Conversion Agent (if other
than the Company or an Affiliate of the Company) shall have the same protection under this Section 10.09 as the Trustee.


 


Article
11

NO RIGHT OF REDEMPTION AT THE OPTION OF THE COMPANY


 


The Notes will not be
redeemable prior to the Maturity Date at the Company’s election, and no sinking fund will be provided for the Notes.


 




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Article
12

MISCELLANEOUS


 


Section
12.01         TIA Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision that is required to be included in this Indenture by the
TIA, then the required provision of the TIA will control.


 


Section
12.02         Notices. Any request, demand,
authorization, notice, waiver, consent or communication will be in writing and delivered in Person or mailed by first-class mail,
postage prepaid, addressed as follows or transmitted by electronic transmission or other similar means of unsecured electronic
methods to the following:


 


if to the Company:


 


Bacterin International
Holdings, Inc.


600 Cruiser Lane


Belgrade, MT
59714


Facsimile: (406) 388-9724


Attn: General Counsel


 


If to the Trustee
(including in its capacity as Registrar, Paying Agent or Conversion Agent):


 


Wilmington Trust,
National Association


Global Corporate
Capital Markets


50 South Sixth
Street, Suite 1290


Minneapolis, MN
55402


Facsimile: (612) 217-5651


Attention: Bacterin International
Holdings, Inc. Administrator


 


The Company or the Trustee,
by notice given to the other in the manner provided above, may designate additional or different addresses for subsequent notices
or communications. Any notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if it is in writing and actually received by the Trustee, addressed as provided above or sent
electronically in PDF format.


 


Any notice or communication
given to a Holder will be mailed to the Holder, by first class mail, postage prepaid, at the Holder’s address as it appears
on the registration books of the Registrar and will be deemed given on the date of such mailing or electronic delivery, as applicable;
provided, however, that with respect to any Global Note, such notice or communication will be sent to the Holder
thereof pursuant to the Applicable Procedures.


 


Failure to mail or send
a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed or sent in the manner provided above, it is duly given, whether or not received by the addressee.


 




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If the Company mails or
sends a notice or communication to the Holders, it will, at the same time, send a copy to the Trustee and each of the Registrar,
Paying Agent and Conversion Agent.


 


If the Company is required
under this Indenture to give a notice to the Holders, in lieu of delivering such notice to the Holders, the Company may deliver
such notice to the Trustee and direct the Trustee, at the Company’s expense, to have delivered such notice to the Holders
on or prior to the date on which the Company would otherwise have been required to deliver such notice to the Holders. In such
a case, the Company will also direct the Trustee, at the Company’s expense, to send a copy of the notice to each of the
Registrar, Paying Agent and Conversion Agent at the same time it sends the notice to the Holders.


 


Section
12.03         Communications by Holders with Other Holders. Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this Indenture, the Notes
or the Registration Rights Agreement. The Company, the Trustee, the Registrar and all other Persons thereby permitted will have
the protection of TIA § 312(c).


 


Section
12.04         Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action under this Indenture other than the authentication
of the initial Global Note and any Physical Note on the Issue Date, the Company will furnish to the Trustee:


 


(a)          an
Officers’ Certificate stating that, in the judgment or opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with; and


 


(b)          an
Opinion of Counsel stating that, in the judgment or opinion of such counsel, all such conditions precedent relating to the proposed
action (to the extent of legal conclusions and subject to reasonable assumptions and exclusions) have been complied with.


 


Section
12.05          Statements Required in Certificate or Opinion. Each
Officers’ Certificate or Opinion of Counsel with respect to compliance with a covenant or condition (except for such Officers’
Certificate required to be delivered pursuant to Section 4.05 hereof) provided for in this Indenture will include:


 


(a)          a
statement that each Person making such Officers’ Certificate or Opinion of Counsel 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, judgments or opinions
contained in such Officers’ Certificate or Opinion of Counsel are based;


 


(c)          a
statement that, in the judgment or opinion of each such Person, such Person has made such examination or investigation as is necessary
to enable such Person to express an informed judgment or opinion to whether or not such covenant or condition has been complied
with; and


 




    	- 74 -



    	 



    

 


(d)          a
statement that, in the judgment or opinion of such Person, such covenant or condition has been complied with.


 


Section
12.06         Separability Clause. In case
any provision in this Indenture or in the Notes will be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions will not in any way be affected or impaired thereby.


 


Section
12.07         Rules by Trustee. The Trustee
may make reasonable rules for action by, or a meeting of, Holders.


 


Section
12.08         Governing Law and Waiver of Jury Trial. THE
INDENTURE AND EACH NOTE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE
COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section
12.09         No Recourse Against Others. A
director, officer, employee or stockholder, as such, of the Company will not have any liability for any obligations of the Company
under the Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
By accepting a Note, each Holder will waive and release all such liability. The waiver and release will be part of the consideration
for the issuance of the Notes.


 


Section
12.10         Calculations. Except
as otherwise provided in this Indenture, the Company will be responsible for making all calculations called for under the Notes
and this Indenture. These calculations include, but are not limited to, determinations of the Last Reported Sale Price of the
Common Stock or any other security, accrued interest (including, for the avoidance of doubt, any Additional Interest, Default
Interest or Special Interest) payable on the Notes and the Conversion Rate in effect on any Conversion Date. In no event will
the Trustee be under any obligation to make any calculations called for under the Notes or this 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 each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion
Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification.
If any Holder requests in writing from the Trustee a copy of such schedule, the Trustee will promptly forward a copy of such schedule
to such Holder.


 


All calculations will
be made to the nearest cent or to the nearest 1/10,000th of a share, as the case may be, with 5/100,000ths rounded upward.


 


Section
12.11         Successors. All agreements
of the Company, the Trustee, the Registrar, the Paying Agent and the Conversion Agent in this Indenture and the Notes will bind
their respective successors.


 




    	- 75 -



    	 



    

 


Section
12.12         Multiple Originals. The parties
may sign any number of copies of this Indenture. Each signed copy will be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages
by facsimile or PDF transmission will constitute effective execution and delivery of this Indenture as to the parties hereto and
may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF
will be deemed to be their original signatures for all purposes.


 


Section
12.13         Table of Contents; Headings. The
table of contents and headings of the articles and sections of this Indenture have been inserted for convenience of reference
only, are not intended to be considered a part hereof, and will not modify or restrict any of the terms or provisions hereof.


 


Section
12.14         Force Majeure. The Trustee,
Registrar, Paying Agent and Conversion Agent will not incur any liability for not performing any act or fulfilling any duty, obligation
or responsibility hereunder by reason of any occurrence beyond the control of such Person (including, but not limited to, any
act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local
or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile
or other wire or communication facility).


 


Section
12.15         Submission to Jurisdiction. The
Company: (a) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes,
as the case may be, may be instituted in any U.S. federal court with applicable subject matter jurisdiction sitting in The City
of New York; (b) waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding, and any claim that any suit, action or proceeding in such a court
has been brought in an inconvenient forum; and (c) submits to the nonexclusive jurisdiction of such courts in any suit, action
or proceeding.


 


Section
12.16         Legal Holidays. If the Maturity
Date or any Interest Payment Date or Fundamental Change Repurchase Date is not a Business Day (which, solely for the purposes
of any payment required to be made on the Notes on any such date will be deemed not to include any day on which the office where
the place of payment is authorized or required by law to close), then any action to be taken on such date need not be taken on
such date, but may be taken on the immediately following Business Day, and no interest on such payment will accrue as a result
of such delay.


 


Section
12.17         No Security Interest Created. Except
as provided in Section 7.07 or 9.01(b) hereof, nothing in this Indenture or in the Notes, expressed or implied, will be construed
to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction.


 


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


 




    	- 76 -



    	 



    

 


Section
12.19         Withholding Taxes. Each Holder
of any Note agrees, and each beneficial owner of an interest in any 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 applicable, as a result of an adjustment to the Conversion Rate, then the Company or other applicable
withholding agent, as applicable, may, at its option, set off such payments against payments of cash and shares of Common Stock
on such Note.


 


Section
12.20         U.S.A. Patriot Act. The parties
hereto acknowledge 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 parties to this
Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the U.S.A. Patriot Act.


 


Section
12.21         Change of Company’s Legal Name. The
Company intends to change its legal name from “Bacterin International Holdings, Inc.” to “Xtant Medical Holdings,
Inc.” following the execution and delivery of this Indenture. For the avoidance of doubt, immediately following such change,
each reference herein to “Bacterin International Holdings, Inc.” will be deemed to be a reference “Xtant Medical
Holdings, Inc.” The Company will provide the Trustee with prompt written notice of such change.


 


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


 




    	- 77 -



    	 



    

 


IN WITNESS WHEREOF, the
undersigned have executed this Indenture as of the day and year first written above.


 


	 	Bacterin International
    Holdings, Inc.
	 	 	 
	 	By:	/s/ John P. Gandolfo
	 	 	Name: John P. Gandolfo
	 	 	Title: CFO
	 	 	 
	 	Wilmington
    Trust, National Association, as Trustee
	 	 	 
	 	By:	/s/ Lynn M. Steiner
	 	 	Name:	Lynn M. Steiner
	 	 	Title:	Vice President


 


[Signature Page to Indenture]


 




    	 



    	 



    

 


EXHIBIT A


 


FORM OF NOTE


 


[FORM OF FACE OF NOTE]


 


[Include the
following legend for Global Notes only (the “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 OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.


 


UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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 THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.


 


[Include the
following legend on all Notes that are Transfer-Restricted Securities (the “Restricted Note Legend”):]


 


THE SALE OF THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, THIS
NOTE (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:


 


(A)         TO
THE COMPANY OR ANY SUBSIDIARY THEREOF;


 


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


 


(C)         TO
A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT; OR


 




    	A-1



    	 



    

 


(D)         UNDER
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).


 


PRIOR TO ANY TRANSFER PURSUANT
TO THE FOREGOING CLAUSE (D), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
SECURITIES LAWS OF ANY OTHER JURISDICTION. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 


[Include the
following legend for all Notes (the “Non-Affiliate Legend”):]


 


NO AFFILIATE (AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT) OF BACTERIN INTERNATIONAL HOLDINGS, INC. MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE OR
ANY BENEFICIAL INTEREST HEREIN.


 




    	A-2



    	 



    

 


	No.:	[                ]	 
	CUSIP:	[                ]	 
	ISIN:	[                ]	 


 


Principal Amount $[__________]

[as revised by the Schedule of Increases

and Decreases of Global Note attached hereto]1


 


Bacterin International
Holdings, Inc.


6.00% Convertible Senior
Notes due 2021


 


Bacterin International
Holdings, Inc., a Delaware corporation, promises to pay to [ ],2
or registered assigns, the principal amount of $[ ] [(as revised by the Schedule of Increases
and Decreases of Global Note attached hereto)]3
on July 15, 2021.


 


Interest Payment Dates:
[[___] and, thereafter,] January 15 and July 15 of each year[, beginning on [___]].


 


Regular Record Dates:
January 1 or July 1 of each year [(or [___], in the case of the interest payment due on [___])].


 


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


 





 






 


1
Include for Global Notes only.


2
Insert Cede & Co. (or any other applicable Depositary or nominee thereof) for Global Notes.


3
Include for Global Notes only.


 




    	A-3



    	 



    

 


	 	Bacterin International
    Holdings, Inc.
	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 	Dated:


 




    	A-4



    	 



    

 


TRUSTEE’S CERTIFICATE
OF AUTHENTICATION


 


Wilmington
Trust, National Association, as Trustee, certifies that this is one of the Notes referred to in the within-mentioned Indenture.


 


	By:	 	 
	 	Authorized Signatory	 
	 	Dated:	 


 




    	A-5



    	 



    

 


[FORM OF REVERSE OF
NOTE]


 


Bacterin International
Holdings, Inc.


6.00% Convertible Senior
Notes due 2021


 


This Note is one of a
duly authorized issue of notes of Bacterin International Holdings, Inc. (the “Company”), designated as its
6.00% Convertible Senior Notes due 2021 (the “Notes”), all issued or to be issued under and pursuant to an
indenture dated as of the Issue Date (the “Indenture”), between the Company and Wilmington Trust, National
Association, as trustee (the “Trustee”), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee,
the Company and the Holders. Capitalized terms used herein and not defined herein have the meanings ascribed to them in the Indenture,
and the terms of the Notes include those stated in the Indenture and those incorporated into the Indenture. Notwithstanding anything
herein to the contrary, to the extent that any provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture will govern and control.


 


1.          Interest.


 


This Note will bear interest
at a rate equal to 6.00% per annum. Interest on this Note will accrue from, and including, the most recent date to which interest
has been paid or provided for, or, if no interest has been paid or provided for, [the Issue Date]. Interest will be payable [in
arrears on [__] and, thereafter,] semi-annually [in arrears] on January 15 and July 15 of each year[, beginning on [__]]. Each
payment of cash interest on this Note will include interest accrued for the period commencing on and including the immediately
preceding Interest Payment Date (or, if none, [the Issue Date]) through, and including, the day before the applicable Interest
Payment Date.


 


Pursuant to Section 4.04
of the Indenture and the Registration Rights Agreement, in certain circumstances, the Company will pay Additional Interest on
this Note.


 


Pursuant to Section 6.04
of the Indenture, in certain circumstances, the Company will pay Special Interest on this Note.


 


Pursuant to Section 2.04
of the Indenture, in certain circumstances, the Company will pay Default Interest on Defaulted Amounts with respect to this Note.


 




    	A-6



    	 



    

 


2.          Method
of Payment.


 


The Company will promptly
make all payments on this Note on the dates and in the manner provided herein and in the Indenture. The Company will pay, or cause
the Paying Agent to pay, the principal of and the Fundamental Change Repurchase Price for any Physical Note by check or wire transfer,
in the manner set forth below, to the applicable Holder of such Note at the office of the Paying Agent on the relevant payment
date upon surrender thereof to the Paying Agent and, if applicable, satisfaction of any other requirements therefor set forth
in Article 3 of the Indenture. The Company will pay, or cause the Paying Agent to pay, interest due, on an Interest Payment Date,
on (and, subject to the immediately preceding sentence, the principal of or the Fundamental Change Repurchase Price for) any Physical
Note to the applicable Holder of such Note (i) by check mailed to such Holder’s registered address; or (ii) if such Holder
delivers, not later than the Regular Record Date relating to such Interest Payment Date (or, with respect to the payment of the
principal of or the Fundamental Change Repurchase Price for such Note, the date that is fifteen (15) days immediately preceding
the Maturity Date or related Fundamental Change Repurchase Date, as applicable), a written request to the Registrar that the Company
make such payments by wire transfer to an account of such Holder within the United States, by wire transfer of immediately available
funds to such account, which request shall remain in effect until such Holder notifies the Registrar, in writing, to the contrary.


 


3.          Paying
Agent, Conversion Agent and Registrar.


 


Initially, Wilmington
Trust, National Association will act as the Trustee, Paying Agent, Conversion Agent and Registrar. The Company may appoint and
change any Paying Agent, Conversion Agent or Registrar; provided, that the Company will maintain at least one Paying Agent,
Conversion Agent and Registrar in the continental United States. The Company or any of its Subsidiaries or any of their Affiliates
may act as Paying Agent, Conversion Agent or Registrar.


 


4.          Repurchase
By the Company at the Option of the Holder upon a Fundamental Change.


 


At the option of the Holder,
and subject to the terms and conditions of the Indenture, upon the occurrence of a Fundamental Change, each Holder will have the
right, at its option, to require the Company to repurchase for cash all of its Notes, or any portion of its Notes having a principal
amount equal to $1,000 or an integral multiple of $1,000 in excess thereof, at a Fundamental Change Repurchase Price equal to
100% of the principal amount of Notes to be purchased plus accrued and unpaid interest, if any, to but excluding, the Fundamental
Change Repurchase Date, unless the Fundamental Change Repurchase Date occurs after a Regular Record Date and on or prior to the
Interest Payment Date corresponding to such Regular Record Date, in which case the Fundamental Change Repurchase Price for such
Notes will be 100% of the principal amount of such Notes, and accrued and unpaid interest, if any, on such Notes to, but excluding,
such Interest Payment Date (assuming, solely for these purposes, that such Notes remained outstanding through such Interest Payment
Date) will be payable, on such Fundamental Change Repurchase Date, to the Holder of such Notes as of the Close of Business on
such Regular Record Date.


 


5.          No
Right of Redemption; No Sinking Fund.


 


The Notes will not be
redeemable prior to the Maturity Date at the Company’s election, and no sinking fund will be provided for the Notes.


 


6.          Conversion.


 


Subject to, and upon compliance
with, the provisions of Article 10 of the Indenture, a Holder may, at its option, convert all of its Notes (or any portion thereof
in an Authorized Denomination) into Conversion Consideration, as provided in Article 10 of the Indenture. Notes may not be converted
after the Close of Business on the second (2nd) Business Day immediately preceding the Maturity Date.


 




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7.          Registration
Rights.


 


The Holders are entitled
to registration rights as set forth in the Registration Rights Agreement and will be entitled to receive Additional Interest pursuant
thereto in certain circumstances.


 


8.          Denominations;
Transfer; Exchange.


 


The Notes are in fully
registered form, without coupons, in minimum denominations of $1,000 of principal amount and in integral multiples of $1,000 in
excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or exchange any Notes in respect of which a Fundamental Change Repurchase
Notice has been given and not withdrawn (except, in the case of a Note to be repurchased in part, the portion of the Note not
to be repurchased) or in respect of which a Conversion Notice has been given (except, in the case of a Note to be converted in
part, the portion of the Note not to be converted).


 


9.          Amendment,
Supplement and Waiver.


 


Subject to certain exceptions,
the Indenture permits the Indenture and the Notes to be amended or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes. In certain circumstances, the Company and the Trustee
may also amend or supplement the Indenture or the Notes without the consent of any Holder. Subject to certain exceptions, the
Indenture permits the waiver of certain Events of Default or the noncompliance with certain provisions of the Indenture and of
the Notes with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding
Notes.


 


10.         Defaults
and Remedies.


 


Subject to the immediately
following paragraph, if an Event of Default specified in the Indenture occurs and is continuing, the Trustee, by delivering a
written notice to the Company, or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by
delivering a written notice to the Company and the Trustee, may declare all the Notes to be due and payable immediately. In addition,
certain specified Events of Default will cause the Notes to become immediately due and payable without the Trustee or Holders
taking any action.


 


If the Company so elects,
the sole remedy for an Event of Default relating to the Company’s failure to comply with the reporting obligations under
Section 4.03 of the Indenture will, for the first sixty (60) days after the occurrence of such Event of Default, consist exclusively
of the right to receive Special Interest on the principal amount of the Notes then outstanding.


 




    	A-8



    	 



    

 


Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless
it receives indemnity or security satisfactory to it. Holders of a majority of the principal amount of the then outstanding Notes
may direct the Trustee in its exercise of any trust or power, subject to certain limitations set forth in the Indenture. Subject
to certain exceptions, the Trustee may withhold from Holders notice of any continuing Event of Default or Default if it determines
that withholding notice is in their interest.


 


11.         Persons
Deemed Owners.


 


The Holder of this Note
will be treated as the owner of this Note for all purposes.


 


12.         Unclaimed
Money or Notes.


 


The Trustee and the Paying
Agent will return to the Company upon written request any money or securities held by them for the payment of any amount with
respect to the Notes that remain unclaimed for two years, subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment as general creditors, unless an applicable abandoned
property law designates another Person.


 


13.         Trustee
Dealings with the Company.


 


The Trustee, in its individual
or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have
if it were not the Trustee.


 


14.         Calculations
in Respect of Notes.


 


Except as otherwise provided
in the Indenture, the Company will be responsible for making all calculations called for under the Notes and the Indenture. These
calculations include, but are not limited to, determinations of the Last Reported Sale Price of the Common Stock or any other
security, accrued interest (including, for the avoidance of doubt, Additional Interest, Default Interest and Special Interest)
payable on the Notes and the Conversion Rate in effect on any Conversion Date.


 


The Company will make
all these calculations in good faith and, absent manifest error, its calculations will be final and binding on all Holders.


 


15.         No
Recourse Against Others.


 


A director, officer, employee
or stockholder, as such, of the Company will not have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each
Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.


 


16.         Authentication.


 


This Note will not be
valid until an authorized signatory of the Trustee manually signs the Trustee’s certificate of authentication on the other
side of this Note.


 




    	A-9



    	 



    

 


17.         Abbreviations.


 


Customary abbreviations
may be used in the name of a Holder or an 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).


 


18.         GOVERNING
LAW.


 


THE INDENTURE AND THE
NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


19.         CUSIP
Numbers.


 


Pursuant to a recommendation
promulgated by the Committee on Uniform Note Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes and the Trustee may use CUSIP numbers in any notices as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any notice, and reliance may be placed only on the
other identification numbers placed thereon.


 


The Company will furnish
to any Holder, upon written request and without charge, a copy of the Indenture which has in it the text of this Note. Requests
may be made to:


 


Bacterin International Holdings,
Inc.


600 Cruiser Lane


Belgrade, MT 59714


Attn: General Counsel


 




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CONVERSION NOTICE


 


BACTERIN INTERNATIONAL HOLDINGS,
INC.


6.00% CONVERTIBLE SENIOR
NOTES DUE 2021


 


To convert this Note, check
the box  ̈


 


To convert the entire principal
amount of this Note, check the box  ̈


 


To convert only a portion
of the principal amount of this Note, check the box  ̈ and here specify the principal
amount to be converted, which principal amount must equal $1,000 or an integral multiple of $1,000 in excess thereof:


 


	$	 	 



 


	Signature Guaranteed	 
	 	 
	 	 
	Participant in a Recognized Signature	 
	Guarantee Medallion Program	 
	 	 
	By:	 	 
	 	Authorized Signatory	 


 




    	A-11



    	 



    

 


FUNDAMENTAL CHANGE REPURCHASE
NOTICE


 


Wilmington Trust, National
Association


Global Corporate Capital
Markets


50 South Sixth Street, Suite
1290


Minneapolis, MN 55402


Attention: Bacterin International
Holdings, Inc. Account Manager


 


Bacterin International Holdings,
Inc.


600 Cruiser Lane


Belgrade, MT 59714


Attention: General Counsel


 


The undersigned registered
owner of this Note hereby acknowledges receipt of a notice from Bacterin International Holdings, Inc. (the “Company”)
as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date
and requests and instructs the Company to pay to the Holder hereof in accordance with the applicable provisions of the Indenture
referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is equal to $1,000 principal
amount or an integral multiple of $1,000 in excess thereof) below designated; and (2) if such Fundamental Change Repurchase Date
does not occur during the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued
and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date.


 


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


 


	Signature Guaranteed	 
	 	 
	 	 
	Participant in a Recognized Signature	 
	 	 
	Guarantee Medallion Program	 
	 	 
	By:	 	 
	Authorized Signatory	 


 




    	A-12



    	 



    

 


[Include for Global
Note]


 


SCHEDULE OF INCREASES
AND DECREASES OF GLOBAL NOTE


 


Initial Principal Amount
of Global Note: $[              ]


	Date	Amount
    of Increase 

    in Principal 

    Amount of Global 

    Note	Amount
    of 

    Decrease in 

    Principal Amount 

    of Global Note	Principal
    Amount 

    of Global Note 

    After Increase or 

    Decrease	Notation
    by 

    Registrar or Note 

    Custodian
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 


 




    	A-13



    	 



    

 


EXHIBIT B


 


[FORM OF RESTRICTED STOCK
LEGEND]


 


THE SALE OF THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED,
EXCEPT:


 


		(A)	TO THE COMPANY OR ANY SUBSIDIARY THEREOF;



 


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



 


		(C)	TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED
INSTITUTIONAL BUYER AND IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR



 


		(D)	UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).



 


PRIOR TO ANY TRANSFER PURSUANT
TO THE FOREGOING CLAUSE (D), THE COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE
SECURITIES LAWS OF ANY OTHER JURISDICTION. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.


 




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EXHIBIT C


 


FORM OF CERTIFICATE
OF TRANSFER


 


Bacterin International Holdings,
Inc.


600 Cruiser Lane


Belgrade, MT 59714


Attention: General Counsel


 


Wilmington Trust, National
Association


50 South Sixth Street


Suite 1290


Minneapolis, MN 55402


Attention: Bacterin International
Holdings, Inc. Account Manager


 


Re:      6.00% Convertible
Senior Notes due 2021


 


Reference is hereby made
to that certain Indenture (the “Indenture”), dated as of July 31, 2015, between Bacterin International Holdings,
Inc., a Delaware corporation (“Company”), and Wilmington Trust, National Association, a national banking association,
as trustee. Capitalized terms used but not defined herein have the respective meanings given to them in the Indenture.


 


The undersigned (the “Transferor”)
owns and proposes to transfer (the “Transfer”) the following principal amount of the Transferor’s [beneficial
interests in the Global Note][Physical Note] identified in Annex A hereto:


 


	$	 	 


 


to:


 


________________________________________(the “Transferee”),
as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:


 


	1.	 ̈	Such Transfer is being made to the Company or a Subsidiary of the Company.
	 	 	 
	2.	 ̈	Such Transfer is being made pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of the Transfer.
	 	 	 
	3.	 ̈	Such Transfer is being made pursuant to, and in accordance with, Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that such beneficial interest is being transferred to a Person that the Transferor reasonably believes is purchasing such beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A.




 




    	C-1



    	 



    

 


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




 


	Dated:	 	 
	 	 
	 	 
	Name of Transferor	 


 


	By:	 	 
	 	Name:	 
	 	Title:	 


 


Signature Guaranteed


 


	 	 
	Participant in a Recognized Signature	 


 


Guarantee Medallion Program


 


	By:	 	 
	 	Authorized Signatory	 


 




    	C-2



    	 



    

 


ANNEX A TO CERTIFICATE OF
TRANSFER


 


		1.	The Transferor owns and proposes to transfer the following
(check one):



 


	a.	 ̈	a beneficial interest in a Rule 144A Global
    Note (CUSIP #                      );
    or
	 	 	 
	b.	 ̈	a Rule 144A Physical Note (CUSIP #               );
    or
	 	 	 
	c.	 ̈	a beneficial interest in an Institutional Accredited
    Investor Global Note (CUSIP #               );
    or
	 	 	 
	d.	 ̈	an Institutional Accredited Investor Physical Note
    (CUSIP #                      ).


 


		2.	After the Transfer, the Transferee will hold: the following:



 


	a.	 ̈	a beneficial interest in a Rule 144A Global
    Note (CUSIP #                      );
    or
	 	 	 
	b.	 ̈	a Rule 144A Physical Note (CUSIP #                      );
    or
	 	 	 
	c.	 ̈	a beneficial interest in an Institutional Accredited
    Investor Global Note (CUSIP #                      );
    or
	 	 	 
	d.	 ̈	an Institutional Accredited Investor Physical Note
    (CUSIP #                      );
    or
	 	 	 
	e.	 ̈	a beneficial interest in an “unrestricted”
    Global Note (CUSIP #                      ).
	 	 	 
	f.	 ̈	an “unrestricted” Physical Note (CUSIP
    #                      ).


 




    	C-3



    	 



    

 


EXHIBIT D


 


FORM OF CERTIFICATE
FROM TRANSFEREE


 


Bacterin International Holdings,
Inc.


600 Cruiser Lane


Belgrade, MT 59714


Attention: General Counsel


 


Wilmington Trust, National
Association


50 South Sixth Street


Suite 1290


Minneapolis, MN 55402


Attention: Bacterin International
Holdings, Inc. Account Manager


 


Re:      6.00% Convertible
Senior Notes due 2021


 


Reference is hereby made
to that certain Indenture (the “Indenture”), dated as of July 31, 2015, between Bacterin International Holdings,
Inc., a Delaware corporation (“Company”), and Wilmington Trust, National Association, a national banking association,
as trustee. Capitalized terms used but not defined herein have the respective meanings given to them in the Indenture.


 


The undersigned (the “Transferee”)
hereby certifies, in connection with its proposed acquisition of:


 


$______________________________________________ aggregate principal
amount of Notes hereby certifies as follows:


 


		1.	The Transferee is acquiring the notes for the Transferee’s
own account or for an account with respect to which the Transferee exercises sole investment discretion, and the Transferee and
such account are: (check one)



 


	a.	 ̈	a “qualified institutional buyer” (as defined under Rule 144A under the Securities Act); or
	 	 	 
	b.	 ̈	an institutional “accredited investor” (as defined under Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act).




 


		2.	The Transferee acknowledges that the offer and sale of
such Notes (and any shares of Common Stock issuable upon conversion thereof) have not been registered under the Securities Act
or the securities laws of any other jurisdiction and that such Notes (and any such shares) may not be offered, sold, pledged or
otherwise transferred except as set forth below.



 




    	D-1



    	 



    

 


		3.	The Transferee will not resell or otherwise transfer any
of such Notes (or any shares of Common Stock issuable upon conversion of such Notes), except:



 


		a.	to the Company or one of its Subsidiaries;



 


		b.	under, and in accordance with, a registration statement
that is effective under the Securities Act at the time of such transfer;



 


		c.	to a Person that the Transferee reasonably believes to
be a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act (if available); or



 


		d.	under any other available exemption from the registration
requirements of the Securities Act (including, if available, the exemption provided by Rule 144 under the Securities Act).



 


		4.	With respect to any transfer made pursuant to paragraph
3(d) above, the Transferee will deliver to the Company and the Trustee (with respect to a transfer of such Notes) or the transfer
agent (with respect to a transfer of any shares of Common Stock issued upon the conversion of such Notes) such certificates, legal
opinions and other information as the Company or they may reasonably require and may rely upon to confirm that the transfer by
the Transferee complies with the foregoing restrictions. The Transferee will, and each subsequent holder is required to, notify
anyone who purchases such Notes or any such shares from it of the above resale restrictions.



 


		5.	The Transferee is not an “affiliate” (within
the meaning of Rule 144 under the Securities Act) of Bacterin International Holdings, Inc. and the Transferee understands that
such Notes will bear a legend substantially to the following effect:



 


			NO AFFILIATE (AS DEFINED IN RULE 144
                                         UNDER THE SECURITIES ACT) OF THE COMPANY MAY PURCHASE OR OTHERWISE ACQUIRE THIS NOTE
                                         OR ANY BENEFICIAL INTEREST HEREIN.



 


	Dated:	 	 
	 	 
	 	 
	Name of Transferee	 
	 	 
	By:	 	 
	 	Name:	 
	 	Title:	 


 




    	D-2