Exhibit 4.1


 


EXECUTION VERSION


 





 



  


 


 






 


IGI Laboratories, Inc.


 


(Company)


 


Wilmington
Trust, National Association


 


(Trustee)


 


3.75%
Convertible Senior Notes due 2019


 


INDENTURE


 


 Dated
as of December 16, 2014 


 


 


 






 






    	 



    	 



    

  





	ARTICLE 1. DEFINITIONS
    AND OTHER PROVISIONS OF GENERAL APPLICATION	1
	 	 	 
	Section 1.01	Definitions and References.	1
	Section 1.02	References to Interest.	14
	Section 1.03	Acts of Holders.	14
	 	 	 
	ARTICLE 2. The
    Notes 	16
	 	 	 
	Section 2.01	Title and Terms; Payments.	16
	Section 2.02	Ranking.	17
	Section 2.03	Denominations.	17
	Section 2.04	Execution, Authentication, Delivery and Dating.	17
	Section 2.05	Temporary Notes.	18
	Section 2.06	Registration; Registration of Transfer and Exchange.	18
	Section 2.07	Transfer Restrictions.	20
	Section 2.08	Expiration of Restrictions.	22
	Section 2.09	Mutilated, Destroyed, Lost and Stolen Notes.	23
	Section 2.10	Persons Deemed Owners.	24
	Section 2.11	Transfer and Exchange.	24
	Section 2.12	Purchase of Notes; Cancellation.	27
	Section 2.13	CUSIP Numbers.	28
	Section 2.14	Payment and Computation of Interest.	28
	 	 
	ARTICLE 3. REPURCHASE
    AT THE OPTION OF THE HOLDERS	29
	 	 	 
	Section 3.01	Purchase at Option of Holders upon a Fundamental Change.	29
	Section 3.02	Fundamental Change Company Notice.	29
	Section 3.03	Repurchase Procedures.	31
	Section 3.04	Effect of Fundamental Change Purchase Notice.	31
	Section 3.05	Withdrawal of Fundamental Change Purchase Notice.	32
	Section 3.06	Deposit of Fundamental Change Purchase Price.	32
	Section 3.07	Notes Purchased in Whole or in Part.	32
	Section 3.08	Covenant To Comply with Applicable Laws upon Purchase of Notes.	33
	Section 3.09	Repayment to the Company.	33
	 	 	 
	ARTICLE 4. CONVERSION	33
	 	 
	Section 4.01	Right To Convert.	33
	Section 4.02	Conversion Procedures.	36
	Section 4.03	Settlement Upon Conversion.	38
	Section 4.04	Adjustment of Conversion Rate.	42
	Section 4.05	Discretionary and Voluntary Adjustments.	52
	Section 4.06	Adjustment to Conversion Rate Upon Conversion in Connection with
    a Make-Whole Fundamental Change or a Redemption Notice.	52
	Section 4.07	Effect of Recapitalization, Reclassification, Consolidation,
    Merger or Sale.	54




 




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	Section 4.08	Certain Covenants.	56
	Section 4.09	Responsibility of Trustee.	56
	Section 4.10	Notice of Adjustment.	57
	Section 4.11	Notice to Holders.	57
	 	 	 
	ARTICLE 5. COVENANTS	58
	 	 	 
	Section 5.01	Payment of Principal and Interest, the Fundamental Change Purchase Price and Redemption Price.	58
	Section 5.02	Maintenance of Office or Agency.	58
	Section 5.03	Provisions as to Paying Agent.	59
	Section 5.04	Reports.	60
	Section 5.05	Statements as to Defaults.	61
	Section 5.06	Additional Interest Notice.	62
	Section 5.07	Compliance Certificate and Opinions of Counsel.	62
	Section 5.08	Additional Interest.	63
	Section 5.09	Corporate Existence.	64
	Section 5.10	Restriction on Resales.	64
	Section 5.11	Further Instruments and Acts.	64
	Section 5.12	Par Value Limitation.	64
	Section 5.13	Company to Furnish Trustee Names and Addresses of Holders.	64
	 	 	 
	ARTICLE 6. REMEDIES	64
	 	 	 
	Section 6.01	Events of Default.	64
	Section 6.02	Acceleration; Rescission and Annulment.	66
	Section 6.03	Additional Interest.	67
	Section 6.04	Waiver of Past Defaults.	68
	Section 6.05	Control by Majority.	68
	Section 6.06	Limitation on Suits.	69
	Section 6.07	Rights of Holders to Receive Payment and to Convert.	69
	Section 6.08	Collection of Indebtedness; Suit for Enforcement by Trustee.	69
	Section 6.09	Trustee May Enforce Claims Without Possession of Notes.	70
	Section 6.10	Trustee May File Proofs of Claim.	70
	Section 6.11	Restoration of Rights and Remedies.	70
	Section 6.12	Rights and Remedies Cumulative.	71
	Section 6.13	Delay or Omission Not a Waiver.	71
	Section 6.14	Priorities.	71
	Section 6.15	Undertaking for Costs.	71
	Section 6.16	Waiver of Stay, Extension and Usury Laws.	72
	Section 6.17	Notices from the Trustee.	72
	 	 	 
	ARTICLE 7. SATISFACTION AND DISCHARGE	72
	 	 	 
	Section 7.01	Discharge of Liability on Notes.	72
	Section 7.02	Deposited Monies to Be Held in Trust by Trustee.	73
	Section 7.03	Paying Agent to Repay Monies Held.	73




 




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	Section 7.04	Return of Unclaimed Monies.	73
	Section 7.05	Reinstatement.	74
	 	 	 
	ARTICLE 8. SUPPLEMENTAL INDENTURES	74
	 	 	 
	Section 8.01	Supplemental Indentures Without Consent of Holders.	74
	Section 8.02	Supplemental Indentures With Consent of Holders.	75
	Section 8.03	Notice of Amendment or Supplement.	76
	Section 8.04	Trustee to Sign Amendments, Etc.	76
	 	 	 
	ARTICLE 9. SUCCESSOR COMPANY	76
	 	 	 
	Section 9.01	Company May Consolidate, Etc. on Certain Terms.	76
	Section 9.02	Successor Corporation to Be Substituted.	77
	Section 9.03	Officer’s Certificate and Opinion of Counsel to Be Given to Trustee.	78
	 	 	 
	ARTICLE 10. Optional REDEMPTION	78
	 	 	 
	Section 10.01	Redemption.	78
	Section 10.02	Notice of Optional Redemption.	78
	Section 10.03	Restrictions on Redemption.	79
	Section 10.04	Payment of Notes Called for Redemption.	80
	 	 	 
	ARTICLE 11. THE TRUSTEE	80
	 	 
	Section 11.01	Duties and Responsibilities of Trustee.	80
	Section 11.02	Rights of the Trustee.	82
	Section 11.03	Trustee’s Disclaimer.	83
	Section 11.04	Trustee or Agents May Own Notes.	83
	Section 11.05	Monies to be Held in Trust.	84
	Section 11.06	Compensation and Expenses of Trustee.	84
	Section 11.07	Officer’s Certificate as Evidence.	85
	Section 11.08	Conflicting Interests of Trustee.	85
	Section 11.09	Eligibility of Trustee.	85
	Section 11.10	Resignation or Removal of Trustee.	85
	Section 11.11	Acceptance by Successor Trustee.	87
	Section 11.12	Succession by Merger, Etc.	87
	Section 11.13	Preferential Collection of Claims.	88
	Section 11.14	Trustee’s Application for Instructions from the Company.	88
	 	 	 
	ARTICLE 12. MISCELLANEOUS	88
	 	 	 
	Section 12.01	Effect on Successors and Assigns.	88
	Section 12.02	Governing Law.	88
	Section 12.03	No Note Interest Created.	88
	Section 12.04	Trust Indenture Act.	88
	Section 12.05	Benefits of Indenture.	89
	Section 12.06	Calculations.	89




 




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	Section 12.07	Execution in Counterparts.	89
	Section 12.08	Notices.	90
	Section 12.09	No Recourse Against Others.	91
	Section 12.10	Tax Withholding.	91
	Section 12.11	Waiver of Jury Trial.	91
	Section 12.12	U.S.A. Patriot Act.	91
	Section 12.13	Force Majeure.	91
	Section 12.14	Submission to Jurisdiction.	92




 




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INDENTURE, dated as of December 16, 2014,
between IGI Laboratories, Inc., a Delaware corporation, as issuer (the “Company”), and Wilmington Trust, National
Association, initially as trustee, conversion agent, registrar, bid solicitation agent and paying agent (in such capacities, and
subject to the provisions herein for replacements or successors for such parties, the “Trustee”, “Conversion
Agent”, “Registrar”, “Bid Solicitation Agent” and “Paying Agent”,
respectively).


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company has duly authorized
the creation of an issue of the Company’s 3.75% Convertible Senior Notes due 2019 (the “Notes”), having
the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, has duly authorized the execution
and delivery of this Indenture; and


 


WHEREAS, all things necessary to make the
Notes, when duly executed by the Company and authenticated and delivered hereunder and duly issued by the Company, the legal, valid
and binding obligations of the Company, in accordance with the terms of the Notes and this Indenture, have been done and performed,
and the execution of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized;


 


NOW, THEREFORE, THIS INDENTURE WITNESSETH,
for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the
benefit of each other and the equal and proportionate benefit of all Holders (as hereinafter defined), as follows:


 


ARTICLE
1.

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


Section
1.01         Definitions and References.


 


The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein”,
“hereof”, “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other Subdivision. The word “or” is not exclusive and the word “including” means including
without limitation. The terms defined in this Article include the plural as well as the singular. References to any Article, Section,
Schedule or Exhibit are to this Indenture except as herein otherwise expressly provided.


 


“Act” has the meaning specified
in Section 1.03.


 


“Additional Interest” means
all amounts, if any, payable by the Company pursuant to Section 5.08 or Section 6.03, as applicable.


 


“Additional Notes” means
any Notes (other than the Initial Notes) issued under this Indenture in accordance with Section 2.01, with the same terms as the
Initial Notes except to the extent permitted otherwise under Section 2.01.


 




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“Additional Shares” has
the meaning specified in Section 4.06(a).


 


“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 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.


 


“Agent Members” has the
meaning specified in Section 2.06(b).


 


“Agent” means any Paying
Agent, Registrar, Conversion Agent or any other agent appointed pursuant to this Indenture.


 


“Aggregate Available Share Cap”
has the meaning specified in the definition of “Stockholders Approvals” under this Section 1.01.


 


“Aggregate NYSE Share Cap”
has the meaning specified in the definition of “Stockholders Approvals” under this Section 1.01.


 


“Applicable Procedures”
means, with respect to any matter at any time, the policies and procedures of a Depositary, if any, that are applicable to such
matter at such time.


 


“Authenticating Agent”
means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Notes.


 


“Bid Solicitation Agent”
means, initially, the Trustee, or any agent the Company may appoint in the future (which may be the Company) to solicit market
bid quotations for the Notes as may be required pursuant to Section 4.01(b)(ii).


 


“Board of Directors” means
either the board of directors of the Company or any duly authorized committee of that board.


 


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


 


“Business Day” means any
day other than (x) a Saturday, (y) a Sunday or (z) a day on which state or federally chartered banking institutions in New York,
New York are authorized or required by law, regulation or executive order to close.


 


“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.


 


“Cash Settlement” has the
meaning specified in Section 4.03(a).


 




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“Change in Control” means
an event that will be deemed to have occurred at the time, after the first date of original issuance for the Initial Notes, any
of the following occurs:


 


(1)         any
“person” or “group” (within the meaning of Section 13(d) of the Exchange Act) is or becomes the direct
or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity
representing 50% or more of the total voting power of the Company’s Common Equity, or has the power, directly or indirectly,
to elect a majority of the members of the Company’s Board of Directors;


 


(2)         the
Company consolidates with, enters into a binding share exchange, merger or similar transaction with or into another person or the
Company sells, assigns, conveys, transfers, leases or otherwise disposes of all or substantially all of the consolidated assets
of the Company, or any Person consolidates with, or merges with or into, the Company; provided, that any merger, binding
share exchange, consolidation or similar transaction pursuant to which the Persons that “beneficially owned,” (as defined
in Rule 13d-3 under the Exchange Act) directly or indirectly, the Company’s Common Equity immediately prior to such transaction
“beneficially own,” (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, the Common Equity representing
at least a majority of the total voting power of all outstanding classes of the Common Equity of the surviving or transferee Person
and such holders’ proportional voting power immediately after such transaction vis-à-vis each other with respect to
the securities they receive in such transaction will be in substantially the same proportions as their respective voting power
vis-à-vis each other immediately prior to such transaction will not constitute a “Change in Control”; or


 


(3)         the
holders of the Company’s Capital Stock approve any plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with this Indenture).


 


provided that, notwithstanding the
foregoing, a “Change in Control” will not be deemed to have occurred if at least 90% of the consideration paid for
the Common Stock in a transaction or transactions described under clause (2) of this definition of “Change in Control”
above (excluding cash payments for any fractional shares and cash payments made pursuant to dissenters’ appraisal rights)
consists of shares of common stock traded on a Permitted Exchange, or will be so traded immediately following such transaction,
and as a result therefrom, such consideration becomes the Reference Property for the Notes.


 


If any transaction in which the Common Stock
is replaced by the Reference Property comprised of securities of another entity occurs, following completion of any related Make-Whole
Fundamental Change Period and any related Fundamental Change Purchase Date, references to the Company in this definition of “Change
in Control” will apply to such other entity instead.


 


“Clause A Distribution”
has the meaning specified in Section 4.04(c).


 


“Clause B Distribution”
has the meaning specified in Section 4.04(c).


 




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“Clause C Distribution”
has the meaning specified in Section 4.04(c).


 


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


 


“Closing Sale Price” of
the Common Stock for any day, as determined by the Company, means the closing sale price per share (or, if no closing sale 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) at 4:00 p.m. New York City time on that day as reported in composite transactions for the
Exchange, or if the Common Stock is not listed on the Exchange, the principal U.S. national or regional securities exchange on
which the Common Stock is listed for trading or, if the Common Stock is not listed on a U.S. national or regional securities exchange,
as reported by OTC Markets Group Inc. at 4:00 p.m. New York City time on such date (or in either case the then-standard closing
time for regular trading on the relevant exchange or trading system). If the closing sale price of the Common Stock is not so reported,
the “Closing Sale Price” will be the average of the mid-point of the last bid and last ask prices for the Common Stock
on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company
for this purpose.


 


“Combination Settlement”
has the meaning specified in Section 4.03(a).


 


“Commission” means the
U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after
the execution of this indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.


 


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


 


“Common Stock” means the
shares of common stock, par value $0.01 per share, of the Company authorized at the date of this instrument as originally executed
or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided,
however, that if at any time there shall be more than one such resulting class, the shares so issuable on conversion of
Notes shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.


 


“common stock” includes
any stock of any class of Capital Stock which has no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the issuer thereof and which is not subject to redemption by
the issuer thereof.


 


“Company” has the meaning
specified in the first paragraph of this Indenture, and subject to the provisions of Article 9, shall include its successors
and assigns.


 




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“Company Order” means a
written request or order signed in the name of the Company by one of its Officers, and delivered to the Trustee.


 


“Conversion Agent” has
the meaning specified in Section 5.02.


 


“Conversion Date” has the
meaning specified in Section 4.02(b).


 


“Conversion Notice” has
the meaning specified in Section 4.02(b).


 


“Conversion Period” means,
with respect to any Note surrendered for conversion, (i) if the relevant Conversion Date occurs prior to the 45th Scheduled
Trading Day immediately preceding the Maturity Date, the 40 consecutive VWAP Trading Day period beginning on, and including, the
third VWAP Trading Day immediately following such Conversion Date; and (ii) if the relevant Conversion Date occurs on or after
the 45th Scheduled Trading Day immediately preceding the Maturity Date, the 40 consecutive VWAP Trading Day period beginning on,
and including, the 42nd Scheduled Trading Day immediately preceding the Maturity Date.


 


“Conversion Price” means,
in respect of each Note, as of any date, $1,000 divided by the Conversion Rate in effect on such date.


 


“Conversion Rate” means
initially 88.5716 shares of Common Stock per $1,000 principal amount of Notes, subject to adjustment as set forth herein.


 


“Corporate Trust Office”
means, with respect to the office of the Trustee, the designated corporate trust office of the Trustee, at which at any particular
time this Indenture shall be principally administered, which office at the date hereof is located at 1100 North Market Street,
Wilmington, Delaware 19890, Attn: IGI Laboratories, Inc. 2019 Notes Administrator, or such other address in the continental United
States as the Trustee may designate from time to time by notice to the Holders and the Company, or the corporate trust office of
any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders
and the Company).


 


“corporation” means a corporation,
association, joint stock company, limited liability company or business trust.


 


“Custodian” means the Trustee,
as custodian for the Depositary with respect to the Notes (so long as the Notes constitute Global Notes), or any successor entity.


 


“Daily Conversion Value”
means, for each VWAP Trading Day during any Conversion Period, one-fortieth (1/40th) of the product of (i) the Conversion
Rate in effect on such VWAP Trading Day and (ii) the Daily VWAP on such VWAP Trading Day.


 


“Daily Measurement Value”
means, for any conversion of Notes, the applicable Specified Dollar Amount divided by 40.


 




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“Daily Net Share Number”
means, for each $1,000 principal amount of Notes surrendered for conversion, for each of the 40 consecutive VWAP Trading Days during
the Conversion Period, a number of shares of Common Stock equal to (A) the greater of (x) the difference between the Daily Conversion
Value for such VWAP Trading Day and the Daily Measurement Value and (y) zero, divided by (B) the Daily VWAP for such VWAP Trading
Day


 


“Daily Settlement Amount”
for each $1,000 principal amount of Notes surrendered for conversion, for each of the 40 consecutive VWAP Trading Days during the
Conversion Period, will consist of: (i) if the Daily Conversion Value for such VWAP Trading Day exceeds the Daily Measurement Value,
(x) a cash payment of the Daily Measurement Value; and (y) a number of shares of Common Stock equal to the Daily Net
Share Number for such VWAP Trading Day; or (ii) if the Daily Conversion Value for such VWAP Trading Day is less than or equal to
the Daily Measurement Value, a cash payment equal to the Daily Conversion Value.


 


“Daily VWAP” for the Common
Stock (or any security that is part of the Reference Property), in respect of any VWAP Trading Day, means the per share volume-weighted
average price of the Common Stock (or other security) as displayed under the heading “Bloomberg VWAP” on Bloomberg
Page “IG Equity AQR” (or its equivalent successor if such page is not available, or the Bloomberg Page for any security
that is part of the Reference Property, if applicable) in respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such VWAP Trading Day or, if such volume-weighted average price is unavailable
(or the Reference Property is not a security), the market value of one share of the Common Stock (or other Reference Property)
on such VWAP Trading Day as determined in good faith by the Board of Directors or a duly authorized committee thereof in a commercially
reasonable manner, using a volume-weighted average price method (unless the Reference Property is not a security). The “Daily
VWAP” will be determined without regard to after-hours trading or any other trading outside the regular trading session.


 


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


 


“Depositary” means, with
respect to the Notes issuable or issued in the form of a Global Note, the Person designated as Depositary by the Company until
a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder. The Company has appointed The Depository Trust Company as
the initial Depositary for the Notes.


 


“Dollar” or “$”
means a dollar or other equivalent unit in such coin or currency of the U.S. that is legal tender for the payment of public and
private debts at the time of payment.


 


“Effective Date” means
(i) with respect to a Fundamental Change or a Make-Whole Fundamental Change, as applicable, the date such Fundamental Change or
Make-Whole Fundamental Change occurs or becomes effective and (ii) with respect to a Redemption Notice, the Redemption Notice Date
of such Redemption Notice.


 


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


 




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“Ex-Dividend Date” means,
except to the extent otherwise provided under Section 4.04(c), the first date on which the shares of Common Stock trade on
the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution
in question, from the Company or, if applicable, from the seller of the Common Stock on such exchange or market (in the form of
due bills or otherwise) as determined by such exchange or market.


 


“Exchange” means The NYSE
MKT or its successor.


 


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


 


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


 


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


 


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


 


“Free Trade Date” means
the date that is one year after the Last Original Issuance Date.


 


“Free Transferability Certificate”
means a certificate substantially in the form attached hereto as Exhibit B.


 


“Freely Tradable” means,
with respect to any Notes, that such Notes are eligible to be sold by a Person who is not an affiliate of the Company (within the
meaning of Rule 144) and has not been an affiliate of the Company (within the meaning of Rule 144) during the immediately preceding
90 days without any volume or manner of sale restrictions under the Securities Act.


 


“Fundamental Change” means
the occurrence of a Change in Control or a Termination of Trading.


 


“Fundamental Change Company Notice”
has the meaning specified in Section 3.02(a).


 


“Fundamental Change Expiration Time”
has the meaning specified in Section 3.03(a)(i).


 


“Fundamental Change Purchase Date”
has the meaning specified in Section 3.01.


 


“Fundamental Change Purchase Notice”
has the meaning specified in Section 3.03(a)(i).


 




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“Fundamental Change Purchase Price”
has the meaning specified in Section 3.01.


 


“Global Note” means a Note
evidencing all or part of a series of Notes, issued to the Depositary for such series or its nominee, and registered in the name
of such Depositary or nominee.


 


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


 


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


 


“Initial Notes” has the
meaning specified in Section 2.01.


 


“Initial Purchasers” means
the Persons listed in Schedule I to the Purchase Agreement.


 


“Interest Payment Date”
means, with respect to the payment of interest on the Notes, each June 15 and December 15 of each year, beginning on, in the case
of the Initial Notes, June 15, 2015.


 


“Issue Date” means, with
respect to any Notes, the date the Notes are originally issued as set forth on the face of the Notes under this Indenture.


 


“Last Original Issuance Date”
means the last date of original issuance of the Initial Notes.


 


“Make-Whole Fundamental Change”
means (i) any Change in Control (determined after giving effect to any exceptions or exclusions from the definition of “Change
in Control” but without giving effect to the proviso in clause (2) of the definition thereof) and (ii) any Termination of
Trading.


 


“Make-Whole Fundamental Change Period”
has the meaning specified in Section 4.06(a).


 


“Market Disruption Event”
means, if the Common Stock is listed for trading on the Exchange or listed on another U.S. national or regional securities exchange,
the occurrence or existence during the one-half hour period ending on the scheduled close of trading on any Scheduled Trading Day
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.


 


“Maturity Date” means December
15, 2019.


 


“Merger Event” has the
meaning specified in Section 4.07(a).


 


“Non-Affiliate Legend”
has the meaning specified in the Form of Note attached hereto as Exhibit A.


 




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“Note” or “Notes”
has the meaning specified in the first paragraph of the Recitals of this Indenture.


 


“Offer Expiration Date”
has the meaning specified in Section 4.04(e).


 


“Officer” or “officer”
shall mean, the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, a
Vice President (whether or not designated by a number or word or words added before or after the title “Vice President”)
or any Director of the Company.


 


“Officer’s Certificate”
means a certificate signed by an Officer of the Company and delivered to the Trustee.


 


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


 


“Opinion of Counsel” means
a written opinion of counsel, who may be an employee of, or counsel for, the Company or an Affiliate of the Company, who is reasonably
satisfactory to the Trustee.


 


“Optional Redemption” has
the meaning specified in Section 10.01.


 


“Outstanding” means, with
respect to the Notes, any Notes authenticated by the Trustee except (i) Notes cancelled by it, (ii) Notes delivered to
it for cancellation and (iii)(A) Notes replaced pursuant to Section 2.09 hereof, on and after the time such Note is replaced
(unless the Trustee and the Company receive proof satisfactory to them that such Note is held by a protected purchaser), (B) Notes
converted pursuant to Article 4 hereof, on and after their Conversion Date, (C) any and all Notes, the principal of which
has become due and payable as of the Maturity Date, on a Fundamental Change Purchase Date, Redemption Date or otherwise and in
respect of which the Paying Agent is holding, in accordance with this Indenture, money sufficient to pay, repurchase or redeem
all of the Notes then to be paid, repurchased or redeemed and (D) any and all Notes owned by the Company or any other obligor
upon the Notes or any Affiliate of the Company or of such other obligor. In determining whether the Holders of the required principal
amount of Notes have concurred in any request, demand, authorization, direction, notice, consent or waiver, Notes owned by the
Company or any other obligor upon the Notes or any Affiliate of the Company will be considered as though not Outstanding, except
that in determining whether the Trustee shall be protected in relying upon any request, demand, authorization, direction, notice,
consent or waiver, only such Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be disregarded.


 


“Paying Agent” means, initially,
the Trustee or any Person authorized by the Company in the future to pay the principal amount of, any premium on, interest on,
the Fundamental Change Purchase Price or Redemption Price of any Notes on behalf of the Company.


 


“Permitted Exchange” has
the meaning specified in the definition of “Termination of Trading” under this Section 1.01.


 




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“Person” means any individual,
corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.


 


“Physical Notes” means
permanent, non-global certificated Notes in definitive, fully registered form issued in minimum denominations of $1,000 principal
amount and integral multiples of $1,000 in excess thereof.


 


“Physical Settlement” has
the meaning specified in Section 4.03(a).


 


“Preliminary Offering Memorandum”
means the Preliminary Offering Memorandum dated December 9, 2014 related to the offering of the Initial Notes.


 


“Purchase Agreement” means
that certain Purchase Agreement, dated December 10, 2014, among the Company and the Initial Purchasers.


 


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


 


“Redemption Date” has the
meaning specified in Section 10.02(a).


 


“Redemption Notice” has
the meaning specified in Section 10.02(a).


 


“Redemption Notice Date”
has the meaning specified in Section 10.02(a).


 


“Redemption Price” has
the meaning specified in Section 10.01.


 


“Reference Property” has
the meaning specified in Section 4.07(a).


 


“Register” and “Registrar”
have the respective meanings specified in Section 2.06.


 


“Regular Record Date” means,
with respect to any Interest Payment Date, June 1 (whether or not a Business Day) or December 1 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date.


 


“Relevant Distribution”
has the meaning specified in Section 4.04(c).


 


“Reporting Event of Default”
has the meaning specified in Section 6.03.


 


“Resale Restriction Termination Date”
has the meaning specified in Section 2.08(b)(ii).


 




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“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate trust department (or any other successor group of
the Trustee) customarily performing functions similar to those performed by any of the above designated officers who at the time
shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject and who in each case shall have direct responsibility for the administration of this Indenture.


 


“Restricted Global Note”
has the meaning specified in Section 2.08(b)(i).


 


“Restricted Note” has the
meaning specified in Section 2.07(a)(i).


 


“Restricted Notes Legend”
has the meaning specified in the Form of Note attached hereto as Exhibit A.


 


“Restricted Stock” has
the meaning specified in Section 2.07(b)(i).


 


“Restricted Stock Legend”
means a legend substantially in the form set forth in Exhibit C hereto.


 


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


 


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


 


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


 


“Settlement Amount” has
the meaning specified in Section 4.03(a)(iii).


 


“Settlement Election” has
the meaning specified in Section 4.03(a)(i).


 


“Settlement Election Notice”
has the meaning specified in Section 4.03(a)(i).


 


“Settlement Method” means,
with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed
to be elected) by the Company in accordance with Section 4.03(a)(i).


 


“Settlement Method Election Date”
has the meaning specified in Section 4.03(a)(i).


 


“Significant Subsidiary”
means, with respect to any Person at any given time, a Subsidiary of such person that would constitute a “significant subsidiary”
as such term is defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as in effect on
the Issue Date.


 




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“Specified Dollar Amount”
means, for any conversion of Notes, the maximum cash amount per $1,000 principal amount of Notes to be received by the Holder upon
conversion as specified in the Company’s Specified Dollar Amount Election Notice (which may be part of the Settlement Election
Notice) or otherwise deemed to be elected by the Company in respect of such conversion as provided herein.


 


“Specified Dollar Amount Election”
has the meaning specified in Section 4.03(a)(i).


 


“Specified Dollar Amount Election
Notice” has the meaning specified in Section 4.03(a)(i).


 


“Spin-Off” has the meaning
specified in Section 4.04(c).


 


“Stock Price” has the meaning
specified in Section 4.06(b).


 


“Stockholders Approvals”
means the requisite approvals from the Company’s stockholders to (i) amend its restated certificate of incorporation to sufficiently
increase the aggregate number of authorized but unissued shares of Common Stock and treasury shares of Common Stock available to
the Company for the purpose of satisfying the conversion of the Initial Notes which number is, as of the date of this Indenture,
2,583,059 shares (the “Aggregate Available Share Cap”), to permit the conversion and settlement of all the Initial
Notes into shares of Common Stock pursuant to Physical Settlement (including, for the avoidance of doubt, any applicable Additional
Shares) and (ii) issue more than 10,558,675 shares of Common Stock in accordance with the continued listing standards of The NYSE
MKT (the “Aggregate NYSE Share Cap”).


 


“Subsidiary” of any Person
means (a) any corporation, association or other business entity of which more than 50% of the outstanding total voting power
ordinarily entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees
or other voting members of the governing body thereof is at the time owned or controlled, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries or (b) any partnership the sole
general partner or the managing general partner of which is the Company or a Subsidiary of the Company or the only general partners
of which are the Company or of one or more Subsidiaries of the Company (or any combination thereof).


 


“Successor Company” has
the meaning specified in Section 9.01(a).


 


“Termination of Trading”
means that the Common Stock (or other Reference Property into which the Notes are then convertible pursuant to the terms of
this Indenture) are not listed for trading on any of the Exchange, The New York Stock Exchange, The NASDAQ Global Select Market
or The NASDAQ Global Market (or any of their respective successors) (such exchanges or any of their respective successors, a “Permitted
Exchange”).


 


“Trading Day” means a day
on which (i) the Exchange or, if the Common Stock is not listed on the Exchange, the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed is open for trading or, if the Common Stock is not so listed, any
Business Day and (ii) a Closing Sale Price for the Common Stock is available on such securities exchange or market. A “Trading
Day” only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing
time for regular trading on the relevant exchange or trading system.


 




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“Trading Price” means,
on any date of determination, the average of the secondary market bid quotations per $1,000 principal amount of Notes obtained
by the Bid Solicitation Agent (or, if the Company is acting as the Bid Solicitation Agent, the Company) for $5,000,000 principal
amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally
recognized securities dealers selected by the Company; provided that, if three such bids cannot reasonably be obtained by
the Company or the Bid Solicitation Agent, as applicable, but two such bids are obtained, then the average of the two bids shall
be used, and if only one such bid can reasonably be obtained by the Company or the Bid Solicitation Agent, as applicable, that
one bid shall be used. If on any date of determination, (i) the Company or the Bid Solicitation Agent, as applicable, cannot reasonably
obtain at least one bid for $5,000,000 principal amount of the Notes from an independent nationally recognized securities dealer,
(ii) the Company fails to request the Bid Solicitation Agent to obtain bids when required or (iii) the Company requests that the
Bid Solicitation Agent obtain bids and the Bid Solicitation Agent fails to make such determination (or, if the Company is the Bid
Solicitation Agent, the Company fails to make such determination), then, in each case, the Trading Price per $1,000 principal amount
of Notes on such date of determination or on each Trading Day of such failure (as the case may be) will be deemed to be less than
98% of the product of (i) the Closing Sale Price of the Common Stock on such date and (ii) the applicable Conversion
Rate.


 


“Trigger Event” has the
meaning specified in Section 4.04(c).


 


“Trustee” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant
to Section 11.11, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder.


 


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


 


“Unit of Reference Property”
has the meaning specified in Section 4.07(a).


 


“U.S.” means the United
States of America.


 


“Valuation Period” has
the meaning specified in Section 4.04(c).


 


“Vice President,” when
used with respect to the Company or the Trustee, as applicable, means any vice president, whether or not designated by a number
or a word or words added before or after the title “vice president”.


 


“VWAP Market Disruption Event”
means (i) a failure by the primary exchange or quotation system on which the Common Stock trades or is quoted to open for trading
during its regular trading session or (ii) the occurrence or existence for more than one half-hour period in the aggregate on any
Scheduled Trading Day for the Common Stock of any suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the Exchange or otherwise) in the Common Stock or in any options, contracts or future contracts relating
to the Common Stock, and such suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such
day.


 




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“VWAP Trading Day” means
a day on which (i) there is no VWAP Market Disruption Event and (ii) the Exchange or, if the Common Stock is not listed
on the Exchange, the principal other U.S. national or regional securities exchange on which the Common Stock is then listed is
open for trading or, if the Common Stock is not so listed, any Business Day. A “VWAP Trading Day” only includes those
days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading
on the relevant exchange or trading system.


 


Section
1.02         References to Interest.


 


Any reference to interest on, or in respect
of, any Note in this Indenture shall be deemed to include Additional Interest, if, in such context, Additional Interest, is, was
or would be payable pursuant hereto. Any express mention of the payment of Additional Interest in any provision hereof shall not
be construed as excluding Additional Interest in those provisions hereof where such express mention is not made.


 


Section
1.03         Acts of Holders.


 


(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be made, 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 shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act”
of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any
such agent, or of the holding by any Person of Notes, shall 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 1.03.


 


(b)          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 him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his 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 which the Trustee deems sufficient.


 




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(c)          The
amount of Notes held by any Person executing any such instrument or writings as the Holder thereof, the numbers of such Notes and
the date of his holding the same may be proved by the production of such Notes or by a certificate executed, as depositary, by
any trust company, bank, banker or member of a national securities exchange (wherever situated), if such certificate is in form
satisfactory to the Trustee, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Notes therein described; or such facts may be proved by the certificate or affidavit of the Person executing such instrument
or writing as the Holder thereof, if such certificate or affidavit is in form satisfactory to the Trustee. The Trustee and the
Company may assume that such ownership of any Notes continues until (1) another certificate bearing a later date issued in
respect of the same Notes is produced or (2) such Notes are produced by some other Person or (3) such Notes are no longer
Outstanding.


 


(d)          The
fact and date of execution of any such instrument or writing and the amount and number of Notes held by the Person so executing
such instrument or writing may also be proved in any other manner that the Trustee deems sufficient. The Trustee may in any instance
require further proof with respect to any of the matters referred to in this Section 1.03.


 


(e)          The
principal amount (except as otherwise contemplated in clause (ii) of the definition of “Outstanding”), serial
numbers of Notes held by any Person and the date of holding the same shall be proved by the Register.


 


(f)          Any
request, demand, authorization, direction, notice, consent, election, waiver or other Act of the Holder of any Note shall 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 or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.


 


(g)          The
Company may but shall not be obligated to set a record date for purposes of determining the identity of Holders of any Outstanding
Notes entitled to vote or consent to any action by vote or consent authorized or permitted by Sections 2.11, 6.02, 6.04, 6.05,
6.06, 8.02 or 11.10. Such record date shall be not less than 10 nor more than 60 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of such Notes furnished to the Trustee pursuant to Section 5.13 prior
to such solicitation.


 


(h)          If
the Company solicits from Holders any request, demand, authorization, direction, notice, consent, election, waiver or other Act,
the Company may, at its option, fix in advance a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, election, waiver or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction, notice, consent, election, 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 the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of the Outstanding Notes have
authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, election, waiver or other
Act, and for that purpose the Outstanding Notes shall be computed as of the record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless it shall 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         Title and Terms; Payments.


 


The aggregate principal amount of Notes
that may be authenticated and delivered under this Indenture is initially limited to $125,000,000 (as may be increased by an amount
(not to exceed $18,750,000) equal to the aggregate principal amount of additional Notes purchased by the Initial Purchasers pursuant
to the exercise of their option to purchase additional Notes as set forth in the Purchase Agreement) (the “Initial Notes”),
except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes pursuant
to Sections 2.05, 2.06, 2.07, 2.08, 2.09, 2.11, 3.07, 4.02(d) or 10.04. The Company may, from time to time after the execution
of this Indenture, execute and deliver to the Trustee for authentication Additional Notes of an unlimited aggregate principal amount,
and the Trustee shall thereupon authenticate and deliver said Additional Notes to or upon receipt of a Company Order, without any
further action by the Company hereunder; provided, however, that (1) if any such Additional Notes are not fungible
with the Initial Notes for U.S. federal income tax purposes, any such Additional Notes will have a separate CUSIP number for so
long as they remain not fungible; (2) such Additional Notes must be issued pursuant to the same terms (other than the date
of issuance for such Notes, the issue price, and, if applicable in accordance with Section 2.14, the date from which interest will
initially accrue and the date of the first interest payment) as the Initial Notes; (3) the Trustee must receive an Officer’s
Certificate to the effect that such issuance of Additional Notes complies with the provisions of this Indenture, including each
provision of this paragraph and all conditions precedent to the issuance and authentication of such Additional Notes have been
satisfied; and (4) the Trustee must receive an Opinion of Counsel which shall state (a) that the form of such Additional Notes
has been established by a supplemental indenture or pursuant to the Board Resolutions in accordance with this Section 2.01 and
Section 2.04 and in conformity with the provisions of this Indenture; (b) that the terms of such Additional Notes have been established
in accordance with this Section 2.01 and in conformity with the other provisions of this Indenture and all conditions precedent
to the issuance and authentication of such Additional Notes have been satisfied; and (c) that such Additional Notes have been duly
authorized, executed and delivered by the Company and, when authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles.


 


The Notes shall be known and designated
as the “3.75% Convertible Senior Notes due 2019” of the Company. The principal amount shall be payable on the Maturity
Date unless no longer Outstanding because earlier purchased, redeemed or converted in accordance with this Indenture.


 




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The principal amount of Physical Notes shall
be payable in U.S. dollars at the Corporate Trust Office and at any other office or agency maintained by the Company for such purpose.
Interest on Physical Notes will be payable (i) to Holders holding Physical Notes having an aggregate principal amount of $1,000,000
or less of Notes, by check mailed to such Holders at the address set forth in the Register and (ii) to Holders holding Physical
Notes having an aggregate principal amount of more than $1,000,000 of Notes, either by check mailed to such Holders or, upon written
application by a Holder to the Company and Registrar at least three Business Days prior to the relevant Interest Payment Date,
by wire transfer in immediately available funds to such Holder’s account within the U.S., which application shall remain
in effect until the Holder notifies the Registrar to the contrary in writing. The Company will pay or cause the Trustee or Paying
Agent to pay principal of, and interest on, Global Notes in U.S. dollars and in immediately available funds to the Depositary or
its nominee, as the case may be, as the registered Holder of such Global Note, on each Interest Payment Date, Fundamental Change
Purchase Date, Redemption Date, the Maturity Date or other payment date, as the case may be.


 


Section
2.02         Ranking.


 


The Notes constitute direct unsecured, senior
obligations of the Company.


 


Section
2.03         Denominations.


 


The Notes shall be issuable only in registered
form without coupons and in minimum denominations of $1,000 and in integral multiples of $1,000 in excess thereof.


 


Section
2.04         Execution, Authentication, Delivery and Dating.


 


The Notes shall be executed on behalf of
the Company by one of its Officers.


 


Notes bearing the manual or facsimile signatures
of individuals who were at any time Officers of the Company shall bind the Company, notwithstanding that such individual has ceased
to hold such office prior to the authentication and delivery of such Notes or did not hold such office at the date of such Notes.


 


At any time and from time to time after
the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes. The Company Order shall specify the amount of
Notes to be authenticated, and shall further specify the amount of such Notes to be issued as one or more Global Notes or as one
or more Physical Notes. The Trustee in accordance with such Company Order shall authenticate and deliver such Notes as provided
in this Indenture and not otherwise.


 


Each Note shall be dated the date of its
authentication.


 


No Note shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by an authorized signatory of the Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered
hereunder.


 




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Section
2.05         Temporary Notes.


 


Pending the preparation of Physical Notes,
the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Physical Notes
in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officer
executing such Notes may determine, as evidenced by such Officer’s execution of such Notes; provided that any such
temporary Notes shall bear legends on the face of such Notes as set forth in the Form of Note attached hereto as Exhibit A
and/or Sections 2.07 and 2.11.


 


After the preparation of Physical Notes,
the temporary Notes shall be exchangeable for Physical Notes upon surrender of the temporary Notes at any office or agency of the
Company designated pursuant to Section 5.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Notes, the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, in exchange
therefor a like principal amount of Physical Notes of authorized denominations. Until so exchanged, the temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as Physical Notes.


 


Section
2.06         Registration; Registration of
Transfer and Exchange.


 


(a)          The
Company shall cause to be kept at the applicable Corporate Trust Office of the Trustee in the continental United States a register
(the register maintained in such office and in any other office or agency designated pursuant to Section 5.02 being herein sometimes
collectively referred to as the “Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration and transfer of Notes. The Trustee is
hereby appointed registrar (the “Registrar”) for the purpose of registering
the transfer and exchange of the Notes as herein provided.


 


Upon surrender for registration of transfer
of any Note at an office or agency of the Company designated pursuant to Section 5.02 for such purpose, the Company shall execute,
and upon receipt of a Company Order the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Notes of any authorized denomination and of a like aggregate principal amount and tenor, each such Note bearing
such restrictive legends as may be required by this Indenture (including the Form of Note attached hereto as Exhibit A
and Sections 2.07 and 2.11).


 


At the option of the Holder and subject
to the other provisions of Sections 2.07 and 2.11, Notes may be exchanged for other Notes of any authorized denomination and of
a like aggregate principal amount and tenor, upon surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate
and deliver, the Notes which the Holder making the exchange is entitled to receive.


 




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


 


Every Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed, by the Holder thereof
or his attorney duly authorized in writing. As a condition to the registration of transfer of any Restricted Notes, the Company
or the Trustee may require evidence satisfactory to them as to the compliance with the restrictions set forth in the legend on
such Notes.


 


No service charge shall be made for any
registration of transfer or exchange of Notes, but the Company and the Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.11 not involving any transfer.


 


Neither the Company nor the Registrar shall
be required to exchange or register a transfer of any Note in the circumstances set forth in Section 2.11(a)(iv).


 


(b)          Neither
any members of, or participants in, the Depositary (collectively, the “Agent Members”)
nor any other Persons on whose behalf any Agent Member may act shall have any rights under this Indenture with respect to any Global
Note registered in the name of the Depositary or any nominee thereof, or under any such Global Note, and the Depositary or such
nominee, as the case may be, may be treated by the Company, the Trustee, the Agents and any of their respective agents as the absolute
owner and Holder of such Global Note for all purposes whatsoever. Neither the Trustee nor any Agent shall have any liability, responsibility
or obligation to any Agent Members or any other Person on whose behalf Agent Members may act with respect to (i) any ownership
interests in the Global Note, (ii) the accuracy of the records of the Depositary or its nominee, (iii) any notice required
hereunder, (iv) any payments under or with respect to the Global Note or (v) actions taken or not taken by any Agent Members.


 


(c)          Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee, any Agent or any of their respective agents from giving effect
to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or
impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation
of customary practices of such Persons governing the exercise of the rights of a Holder of any Note. The registered Holder of a
Global Note may grant proxies and otherwise authorize any Person, including Agent Members and persons that may hold interests through
Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.


 


Section
2.07         Transfer Restrictions.


 


(a)          Restricted
Notes.


 




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(i)          Every
Note (and any security issued in exchange therefor or substitution thereof) that bears, or that is required under this Section 2.07
to bear, the Restricted Notes Legend will be deemed to be a “Restricted Note.”
Each Restricted Note will be subject to the restrictions on transfer set forth in this Indenture (including in the Restricted Notes
Legend) and will bear the restricted CUSIP number for the Notes unless the Company notifies the Trustee in writing that such restrictions
on transfer are eliminated or otherwise waived by written consent of the Company (including, without limitation, by the Company’s
delivery of the Free Transferability Certificate as provided herein), and each Holder of a Restricted Note, by such Holder’s
acceptance of such Restricted Note, will be deemed to be bound by the restrictions on transfer applicable to such Restricted Note.


 


(ii)         Until
the Resale Restriction Termination Date, any Note will bear the Restricted Notes Legend unless:


 


(A) (1)       such
Note, since last held by the Company or an affiliate of the Company (within the meaning of Rule 144), if ever, was transferred
(I) to a Person other than (x) the Company, (y) an affiliate of the Company (within the meaning of Rule 144)
or (z) a Person that was an affiliate of the Company (within the meaning of Rule 144) within the 90 days immediately preceding
such transfer and (II) pursuant to a registration statement that was effective under the Securities Act at the time of such
transfer; or


 


(1)         such
Note was transferred (I) to a Person other than (x) the Company or (y) an affiliate of the Company (within the meaning
of Rule 144) or a Person that was an affiliate of the Company (within the meaning of Rule 144) within the 90 days immediately
preceding such transfer and (II) pursuant to the exemption from registration provided by Rule 144 or any similar provision
then in force under the Securities Act; and


 


(B)         the
Company delivers written notice to the Trustee and the Registrar (including, without limitation, by the Company’s delivery
of the Free Transferability Certificate as provided herein) stating that the Restricted Notes Legend may be removed from such Note
and all Applicable Procedures have been complied with.


 


(iii)        In
addition, until the Resale Restriction Termination Date, no transfer of any Restricted Note will be registered by the Registrar
unless the transferring Holder delivers to the Trustee a completed notice substantially in the form of the Form of Assignment and
Transfer, which contains a certification that the transferee is (A) IGI Laboratories, Inc. or a subsidiary thereof or (B) such
other person that is not an affiliate of the Company (within the meaning of Rule 144) and has not been an affiliate of the
Company (within the meaning of Rule 144) within the 90 days immediately preceding the date of such proposed transfer.


 




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(iv)         On
and after the Resale Restriction Termination Date, any Note will bear the Restricted Note Legend if at any time the Company determines
that, to comply with applicable law, such Note must bear the Restricted Notes Legend and the Company notifies the Trustee in writing.


 


(b)          Restricted
Stock.


 


(i)          Every
share of Common Stock that bears, or that is required under this Section 2.07 to bear, the Restricted Stock Legend will be deemed
to be “Restricted Stock”. Each share of Restricted Stock will be subject to the restrictions on transfer set
forth in this Indenture (including in the Restricted Stock Legend) and will bear a restricted CUSIP number unless such restrictions
on transfer are eliminated or otherwise waived by written consent (including, without limitation, by the Company’s delivery
of the Free Transferability Certificate in connection with the Notes as provided herein) of the Company, and each Holder of Restricted
Stock, by such Holder’s acceptance of Restricted Stock, will be deemed to be bound by the restrictions on transfer applicable
to such Restricted Stock.


 


(ii)         Until
the Resale Restriction Termination Date, any shares of Common Stock issued upon the conversion of a Note, and any shares of Common
Stock issued upon conversion of a Restricted Note, will be issued in book-entry form by or on behalf of the Company and will bear
the Restricted Stock Legend unless the Company delivers written notice to the transfer agent for the Common Stock stating that
such shares of Common Stock need not bear the Restricted Stock Legend.


 


(iii)        On
and after the Resale Restriction Termination Date, shares of Common Stock will be issued in book-entry form and will bear the Restricted
Stock Legend at any time the Company reasonably determines that, to comply with applicable law, such shares of Common Stock must
bear the Restricted Stock Legend.


 


(c)          As
used in this Section 2.07, the term “transfer” means any sale, pledge,
transfer, loan, hypothecation or other disposition whatsoever of any Restricted Note, any interest therein or any Restricted Stock.


 


(d)          All
Notes, whether Global Notes or Physical Notes, are required to bear the Non-Affiliate Legend at all times, whether before or after
the Resale Restriction Termination Date.


 




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Section
2.08         Expiration of Restrictions.


 


(a)          Physical
Notes. Any Physical Note (or any security issued in exchange or substitution therefor) that does not constitute a Restricted
Note may be exchanged for a new Note or Notes of like tenor and aggregate principal amount that do not bear the Restricted Notes
Legend required by Section 2.07. To exercise such right of exchange, the Holder of such Note must surrender such Note in accordance
with the provisions of Section 2.11 and deliver any additional documentation required by this Indenture in connection with
such exchange.


 


(b)          Global
Notes; Resale Restriction Termination Date.


 


(i)          If,
on the Free Trade Date, or the next succeeding Business Day if the Free Trade Date is not a Business Day, any Notes are represented
by a Global Note that is a Restricted Note (any such Global Note, a “Restricted Global Note”), as promptly as
practicable, the Company will automatically exchange every beneficial interest in each Restricted Global Note for beneficial interests
in Global Notes that do not bear the Restricted Notes Legend and are not subject to the restrictions set forth in the Restricted
Notes Legend and in Section 2.07.


 


(ii)         To
effect such automatic exchange, the Company will (A) deliver to the Depositary an instruction letter for the Depositary’s
mandatory exchange process at least 15 days immediately prior to the Free Trade Date (with a copy to the Trustee) and (B) deliver
to each of the Trustee and the Registrar a duly completed Free Transferability Certificate on or promptly after the Free Trade
Date. The date of the Free Transferability Certificate will be known as the “Resale Restriction
Termination Date”. The Trustee shall assume that the Free Trade Date has not occurred unless and until it receives
a Free Transferability Certificate.


 


(iii)        Immediately
upon receipt of the Free Transferability Certificate by each of the Trustee and the Registrar:


 


(A)         
the Restricted Notes Legend will be deemed removed from each of the Global Notes specified in such Free Transferability Certificate
and the restricted CUSIP number will be deemed removed from each of such Global Notes and deemed replaced with the unrestricted
CUSIP number;


 


(B)         
the Restricted Stock Legend will be deemed removed from any shares of Common Stock previously issued upon conversion of the Notes;
and


 


(C)         thereafter,
shares of Common Stock issued upon conversion of the Notes will be assigned an unrestricted CUSIP number and will not bear the
Restricted Stock Legend (except as provided in Section 2.07(b)(iii)) or any similar legend.


 


(iv)         Promptly
after the Resale Restriction Termination Date, the Company will provide Bloomberg LLP with a copy of the Free Transferability Certificate
and will use reasonable efforts to cause Bloomberg LLP to adjust its screen page for the Notes to indicate that the Notes are no
longer Restricted Notes and are then identified by an unrestricted CUSIP number.


 




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(v)          Prior
to the Company’s delivery of the Free Transferability Certificate and afterwards, the Company and the Trustee will comply
with the Applicable Procedures and the Company shall otherwise use reasonable efforts to cause each Global Note that is not required
to bear the Restricted Notes Legend to be identified by an unrestricted CUSIP number in the facilities of the Depositary by the
date the Free Transferability Certificate is delivered to the Trustee and the Registrar or as promptly as possible thereafter.


 


(vi)         Notwithstanding
anything to the contrary in Sections 2.08(b)(i), (ii) or (iii), the Company
will not be required to deliver the Free Transferability Certificate if it reasonably believes that removal of the Restricted Notes
Legend or the changes to the CUSIP numbers for the Notes could result in or facilitate transfers of the Notes in violation of applicable
law.


 


Section
2.09         Mutilated, Destroyed, Lost and Stolen Notes.


 


If any mutilated Note is surrendered to
the Trustee, the Company shall execute, and the Trustee shall, upon receipt of a Company Order, authenticate and deliver, in exchange
therefor a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be
delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless,
then, in the absence of written notice to the Company or the Trustee that such Note has been acquired by a protected purchaser,
the Company shall execute, and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note,
a new Note of like tenor and principal amount and bearing a number not contemporaneously outstanding.


 


In case any such mutilated, destroyed, lost
or stolen Note has become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.


 


Upon the issuance of any new Note under
this Section 2.09, the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.


 


Every new Note issued pursuant to this Section
2.09 in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.


 


The provisions of this Section 2.09 are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.


 




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Section
2.10         Persons Deemed Owners.


 


Subject to the rights of Holders as of the
Regular Record Date to receive payments of interest on the related Interest Payment Date, prior to due presentment of a Note for
registration of transfer, the Company, the Trustee, each Agent, and any of their respective agents 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 payment of the principal of
such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee, the
Agents nor any of their respective agents shall be affected by notice to the contrary.


 


Section
2.11         Transfer and Exchange.


 


(a)          Provisions
Applicable to All Transfers and Exchanges.


 


(i)          Subject
to the restrictions set forth in this Section 2.11, Physical Notes and beneficial interests in Global Notes may be transferred
or exchanged from time to time as desired, and each such transfer or exchange will be noted by the Registrar in the Register.


 


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


 


(iii)        No
service charge will be imposed on any Holder of a Physical Note or any owner of a beneficial interest in a Global Note for any
exchange or registration of transfer, but each of the Company, the Trustee or the Registrar may require such Holder or owner of
a beneficial interest to pay a sum sufficient to cover any transfer tax, assessment or other governmental charge imposed in connection
with such registration of transfer or exchange.


 


(iv)         Unless
the Company specifies otherwise, none of the Company, the Trustee, the Registrar or any co-Registrar will be required to exchange
or register a transfer of any Note (i) that has been surrendered for conversion, (ii) as to which a Fundamental Change
Purchase Notice has been delivered and not withdrawn or (iii) that has been selected for redemption in connection with a Redemption
Notice that has been delivered, except to the extent any portion of such Note is not subject to the foregoing.


 


(v)          Neither
the Trustee nor any Agent will have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including
any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express
requirements hereof.


 




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(b)          In
General; Transfer and Exchange of Beneficial Interests in Global Notes. So long as the Notes are eligible for book-entry
settlement with the Depositary, unless otherwise required by law or by Section 2.11(c):


 


(i)          all
Notes will be represented by one or more Global Notes;


 


(ii)         every
transfer and exchange of a beneficial interest in a Global Note will be effected through the Depositary in accordance with the
Applicable Procedures and the provisions of this Indenture (including the restrictions on transfer set forth in Section 2.07);
and


 


(iii)        each
Global Note may be transferred only as a whole and only (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.


 


(c)          Transfer
and Exchange of Global Notes for Physical Notes.


 


(i)          Notwithstanding
any other provision of this Indenture, each Global Note will be exchanged for Physical Notes if the Depositary delivers notice
to the Company that:


 


(A)         the
Depositary is unwilling or unable to continue to act as Depositary; or


 


(B)         the
Depositary is no longer registered as a clearing agency under the Exchange Act or is otherwise no longer permitted under applicable
law to continue as Depositary for such Global Note;


 


and, in each case, the Company promptly
delivers a copy of such notice to the Trustee and the Company fails to appoint a successor Depositary within 90 days after receiving
notice from the Depositary.


 


In each such case, the Company
will, in accordance with Section 2.04, promptly execute, and, upon receipt of a Company Order, the Trustee will, in accordance
with Section 2.04, promptly authenticate and deliver, for each beneficial interest in each Global Note so exchanged, an aggregate
principal amount of Physical Notes equal to the aggregate principal amount of such beneficial interest, registered in such names
and in such authorized denominations as the Depositary specifies, and bearing any legends that such Physical Notes are required
to bear under Section 2.07.


 


(ii)         In
addition, if an Event of Default has occurred with regard to the Notes represented by the relevant Global Note and such Event of
Default has not been cured or waived, any owner of a beneficial interest in a Global Note may deliver a written request through
the Depositary to exchange such beneficial interest for Physical Notes.


 




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In such case, (A) the Registrar
will deliver notice of such request to the Company and the Trustee, which notice will identify the aggregate principal amount of
such beneficial interest and the CUSIP of the relevant Global Note; (B) the Company will, in accordance with Section 2.04,
promptly execute, and, upon receipt of a Company Order, the Trustee, in accordance with Section 2.04, will promptly authenticate
and deliver, to such owner, for the beneficial interest so exchanged by such owner, Physical Notes registered in such owner’s
name having an aggregate principal amount equal to the aggregate principal amount of such beneficial interest as the Depositary
specifies, and bearing any legends that such Physical Notes are required to bear under Section 2.07; and (C) the Trustee,
in accordance with the Applicable Procedures, will cause the principal amount of such Global Note to be decreased by the aggregate
principal amount of the beneficial interest so exchanged. If all of the beneficial interests in a Global Note are so exchanged,
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 Trustee's customary procedures and the Applicable Procedures.


 


(d)          Transfer
and Exchange of Physical Notes.


 


(i)          If
Physical Notes are issued, a Holder may transfer a Physical Note by: (A) surrendering such Physical Note for registration
of transfer to the Registrar, together with any endorsements or instruments of transfer required by any of the Company, the Trustee
or the Registrar; (B) if such Physical Note is a Restricted Note, delivering any documentation required by Section 2.07;
and (C) satisfying all other requirements for such transfer set forth in this Section 2.11 and Section 2.07. Upon
the satisfaction of conditions (A), (B) and (C) of the immediately preceding sentence, the Company, in accordance with Section 2.04,
will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order, will, in accordance with Section 2.04,
promptly authenticate and deliver, in the name of the designated transferee or transferees, one or more new Physical Notes, of
any authorized denomination, having like aggregate principal amount and bearing any restrictive legends that such Physical Notes
are required to bear under Section 2.07.


 


(ii)         If
Physical Notes are issued, a Holder may exchange a Physical Note for other Physical Notes of any authorized denominations and aggregate
principal amount equal to the aggregate principal amount of the Notes to be exchanged by surrendering such Notes, together with
any endorsements or instruments of transfer required by any of the Company, the Trustee or the Registrar, at any office or agency
maintained by the Company for such purposes pursuant to Section 5.02. Whenever a Holder surrenders Notes for exchange, the Company,
in accordance with Section 2.04, will promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company
Order and in accordance with Section 2.04, will promptly authenticate and deliver the Notes that such Holder is entitled to
receive, bearing registration numbers not contemporaneously outstanding and any legends that such Physical Notes are required to
bear under Section 2.07.


 




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(iii)        If
Physical Notes are issued, a Holder may transfer or exchange a Physical Note for a beneficial interest in a Global Security by
(A) surrendering such Physical Note for registration of transfer or exchange, together with any endorsements or instruments
of transfer required by any of the Company, the Trustee or the Registrar, at any office or agency maintained by the Company for
such purposes pursuant to Section 5.02; (B) if such Physical Note is a Restricted Note, delivering any documentation required
by Section 2.07; (C) satisfying all other requirements for such transfer set forth in this Section 2.11 and Section 2.07;
and (D) providing written instructions to the Trustee to make, or to direct the Registrar to make, an adjustment in its books
and records with respect to the applicable Global Note to reflect an increase in the aggregate principal amount of the Notes represented
by such Global Note, which instructions will contain information regarding the Depositary account to be credited with such increase.
Upon the satisfaction of conditions (A), (B), (C) and (D), the Trustee will cancel such Physical Note in accordance with its customary
procedures and cause, in accordance with the Applicable Procedures, the aggregate principal amount of Notes represented by such
Global Note to be increased by the aggregate principal amount of such Physical Note, and will credit or cause to be credited the
account of the Person specified in the instructions provided by the exchanging Holder in an amount equal to the aggregate principal
amount of such Physical Note. If no Global Notes are then Outstanding, the Company, in accordance with Section 2.04, will
promptly execute and deliver to the Trustee, and the Trustee, upon receipt of a Company Order and in accordance with Section 2.04,
will authenticate, a new Global Note in the appropriate aggregate principal amount.


 


Section
2.12         Purchase of Notes; Cancellation.


 


The Company may, to the extent permitted
by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), purchase Notes in the open
market or by tender offer at any price or by private agreement. The Company will cause any Notes so purchased (other than Notes
purchased pursuant to cash-settled swaps or other cash-settled derivatives) to be surrendered to the Trustee for cancellation.
For the avoidance of doubt, any such Notes purchased by the Company will be retired and no longer Outstanding hereunder.


 


The Company shall deliver to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee for cancellation any Notes previously authenticated hereunder which the Company has not issued and
sold. The Trustee shall promptly cancel all Notes surrendered for registration of transfer, exchange, payment, purchase, repurchase,
redemption, conversion or cancellation in accordance with its customary procedures and the Applicable Procedures (if applicable).
If the Company shall acquire any of the Notes in any manner whatsoever, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation. The Notes
so acquired, while held by or on behalf of the Company or any of its Subsidiaries, shall not entitle the Holder thereof to convert
the Notes. The Company may not issue new Notes to replace Notes it has paid in full or delivered to the Trustee for cancellation. 


 




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The Registrar shall retain, in accordance
with its customary procedures, copies of all letters, notices and other written communications received pursuant to this Section
2.12. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications
at any reasonable time upon the giving of reasonable written notice to the Registrar.


 


Section
2.13         CUSIP Numbers.


 


In issuing the Notes, the Company may use
“CUSIP” numbers (if then generally in use); provided that the Trustee shall have no liability for any defect
in the CUSIP numbers as they appear on any Notes, notice, or elsewhere. The Company will promptly notify the Trustee in writing
of any change in the “CUSIP” numbers.


 


Section
2.14         Payment and Computation of Interest.


 


The Notes will bear cash interest at a rate
of 3.75% per year until the Maturity Date, unless earlier purchased, converted or redeemed in accordance with the provisions herein.
Interest on the Notes will accrue from the most recent date on which interest has been paid or duly provided for or, if no interest
has been paid or duly provided for, (x) in the case of the Initial Notes, December 16, 2014 or (y) in the case of any other Notes,
the date of original issuance of such Notes. Interest will be paid to the Person in whose name a Note is registered at the Close
of Business on the Regular Record Date immediately preceding the relevant Interest Payment Date semiannually in arrears on each
Interest Payment Date; provided that, if any Interest Payment Date, Maturity Date, Redemption Date or Fundamental Change
Purchase Date of a Note falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business
Day and no interest on such payment will accrue in respect of the delay. Interest on the Notes shall be computed on the basis of
a 360-day year consisting of twelve 30-day months; provided, however, that for any period in which a particular interest
rate is applicable for less than a full semiannual period, interest on the Notes will be computed on the basis of a 30-day month
and, for periods of less than a month, the actual number of days elapsed over a 30-day month.


 


Unless the context otherwise requires, payments
of the Fundamental Change Purchase Price, Redemption Price, principal and interest on any Note, in each case, that are not made
when due will accrue interest per annum at the then-applicable interest rate from the required payment date.


 


The Company will pay Additional Interest
under certain circumstances as provided in Section 5.08 and 6.03.


 




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ARTICLE
3.

REPURCHASE AT THE OPTION OF THE HOLDERS


 


Section
3.01         Purchase at Option of Holders upon a Fundamental Change.


 


If a Fundamental Change occurs, then each
Holder shall have the right, at such Holder’s option, to require the Company to purchase for cash all of such Holder’s
Notes, or any portion of such Holder’s Notes that is equal to $1,000, or an integral multiple of $1,000, on a date (the “Fundamental
Change Purchase Date”) specified by the Company that is not less than 20 or more than 35 Business Days after the occurrence
of such Fundamental Change, at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued
and unpaid interest to but excluding the Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”);
provided, however, that if the Fundamental Change Purchase Date is after a Regular Record Date and on or prior to
the Interest Payment Date to which it relates, the Company shall instead pay interest accrued to the Interest Payment Date to the
Holder of record of the Note as of the preceding Regular Record Date and the Fundamental Change Purchase Price shall then be equal
to 100% of the principal amount of the Note subject to purchase and will not include any accrued and unpaid interest. Notwithstanding
the foregoing, there shall be no purchase of any Notes pursuant to this Section 3.01 if the principal amount of the Notes
has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Purchase Date (except
in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Purchase Price
with respect to such Notes). In the event the principal amount of the Notes is accelerated following delivery of a Fundamental
Change Company Notice (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental
Change Purchase Price with respect to such Notes), the Trustee will promptly (i) return to the respective Holders thereof any Physical
Notes tendered to it or (ii) effect appropriate book-entry transfers to the respective beneficial holders thereof any beneficial
interests in a Global Note tendered to it in compliance with the Applicable Procedures, in which case, upon such return or transfer,
as the case may be, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.


 


Section
3.02         Fundamental Change Company Notice.


 


(a)          General.
On or before the 5th Business Day after the occurrence of a Fundamental Change, the Company shall provide to all Holders of the
Notes, the Trustee and the Paying Agent (in the case of any Paying Agent other than the Trustee) a written notice (the “Fundamental
Change Company Notice”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders
arising as a result thereof. Such notice shall be sent to the Holders in accordance with Section 12.08(c) (with a copy to the Trustee).
Simultaneously with providing such Fundamental Change Company Notice, the Company shall issue a press release announcing the occurrence
of such Fundamental Change and make the press release available on the Company’s website. Each Fundamental Change Company
Notice shall specify:


 


(i)          the
events causing the Fundamental Change;


 


(ii)         the
Effective Date of the Fundamental Change, and whether the Fundamental Change is a Make-Whole Fundamental Change, in which case
the notice shall state the Effective Date of the Make-Whole Fundamental Change;


 


(iii)        information
about the Holder’s right to convert the Notes;


 


(iv)         information
about the Holder’s right to require the Company to purchase the Notes;


 




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(v)          the
last date on which a Holder of Notes may exercise the purchase right pursuant to Section 3.01;


 


(vi)         the
Fundamental Change Purchase Price;


 


(vii)        the
Fundamental Change Purchase Date;


 


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


 


(ix)         the
applicable Conversion Rate and any adjustments to the applicable Conversion Rate resulting from the Fundamental Change;


 


(x)          if
applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted
only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with Section 3.05;


 


(xi)         the
procedures required for exercise of the purchase option upon the Fundamental Change, including that the Holder must exercise the
purchase option prior to the Fundamental Change Expiration Time; and


 


(xii)        that
the Holder shall have the right to withdraw any Notes surrendered for purchase prior to the Fundamental Change Expiration Time
and the procedures required for withdrawal of any such exercise as described in 3.05;


 


(b)          No
failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or
affect the validity of the proceedings for the repurchase of the Notes pursuant to Section 3.01.


 


(c)          At
the Company’s written request, the Trustee shall give the Fundamental Change Company Notice in the Company’s name and
at the Company’s expense; provided, however, that, in all cases, the Fundamental Change Company Notice shall be prepared
by the Company; provided, further that the Company shall have delivered to the Trustee, at least three Business Days before
the Fundamental Change Company Notice is required to be given to the Holders (or such shorter period agreed to by the Trustee),
an Officer’s Certificate requesting that the Trustee give such notice and attaching the form of Fundamental Change Company
Notice and including the information required by Section 3.02(a). Neither the Trustee nor the Paying Agent shall be responsible
for determining if a Fundamental Change has occurred or for delivering a Fundamental Change Company Notice to Holders or for the
content of any Fundamental Change Company Notice.








 




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Section
3.03         Repurchase Procedures.


 


(a)          Purchases
of Notes under Section 3.01 shall be made, at the option of the Holder thereof, upon:



 


(i)          if
the Notes to be purchased are Physical Notes, delivery to the Trustee by the Holder of a duly completed notice in the Form of Fundamental
Change Purchase Notice (the “Fundamental Change Purchase Notice”) together with the Physical Notes duly endorsed
for transfer, at any time prior to the Close of Business on the Business Day immediately preceding the Fundamental Change Purchase
Date, (the “Fundamental Change Expiration Time”); and


 


(ii)         if
the Notes to be purchased are Global Notes, delivery to the Trustee of the beneficial interest in such Global Notes, by book-entry
transfer, in compliance with the Applicable Procedures and the satisfaction of any other requirements of the Depositary in connection
with tendering beneficial interests in a Global Note for purchase by the Fundamental Change Expiration Time.


 


The Fundamental Change Purchase Notice in
respect of any Notes to be purchased shall state:


 


(i)          if
certificated, the certificate numbers of such Holder’s Notes;


 


(ii)         the
portion of the principal amount of such Notes to be purchased, which must be such that the principal amount not purchased equals
$1,000 or an integral multiple of $1,000; and


 


(iii)        that
such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and this Indenture.


 


(b)          Notice
to Company. The Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Purchase Notice
or written notice of withdrawal thereof.


 


Section
3.04         Effect of Fundamental Change Purchase Notice.


 


Upon receipt by the Paying Agent of Physical
Notes and a Fundamental Change Purchase Notice or beneficial interests in a Global Note by book-entry transfer as specified in
Section 3.03, the Holder of the tendered Note shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance
with Section 3.05) thereafter be entitled to receive solely the Fundamental Change Purchase Price, in cash with respect to
such Note (and any previously accrued and unpaid interest on such Note, if applicable). Such Fundamental Change Purchase Price
shall be paid to such Holder, provided that the conditions in this Article 3 have been satisfied (including, without limitation,
the proper delivery or book-entry transfer of such Note as required under Section 3.03(a)) and subject to the Paying Agent holding
money sufficient to pay the Fundamental Change Purchase Price, promptly following the later of the applicable Fundamental Change
Purchase Date and the time of delivery or book-entry transfer of such Note to the Paying Agent by the Holder thereof in the manner
required by Section 3.03(a).


 




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Section
3.05         Withdrawal of Fundamental Change Purchase Notice.


 


A Fundamental Change Purchase Notice may
be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Paying Agent in accordance with
the Fundamental Change Company Notice, as applicable, at any time prior to the Fundamental Change Expiration Time, as applicable,
specifying:


 


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


 


(b)          if
certificated, the certificate numbers of the withdrawn Notes; and


 


(c)          the
principal amount, if any, of each Note that remains subject to the Fundamental Change Purchase Notice, which must be such that
the principal amount of such Holder’s Notes not purchased equals $1,000 or an integral multiple of $1,000;


 


provided, however, that if the Notes are Global
Notes, the notice must comply with the Applicable Procedures.


 


The Paying Agent will promptly return to
the respective Holders thereof any Physical Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn
in compliance with the provisions of Sections 3.05 or 3.07, as applicable.


 


Section
3.06         Deposit of Fundamental Change Purchase Price.


 


Prior to 11:00 a.m., New York City time,
on the Fundamental Change Purchase Date, the Company shall deposit with the Paying Agent (or, if the Company or a Subsidiary or
an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided herein) an amount of
money (in immediately available funds if deposited on such Business Day) sufficient to pay the Fundamental Change Purchase Price
of all the Notes or portions thereof that are to be purchased as of the Fundamental Change Purchase Date. If the Paying Agent holds
money sufficient to pay the Fundamental Change Purchase Price of the tendered Notes on the Fundamental Change Purchase Date, then
(a) such tendered Notes will cease to be Outstanding and (except as provided below in clause (b)) interest will cease to accrue
thereon (whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent)
and (b) all other rights of the Holders of such tendered Notes will terminate (other than (x) the right to receive the Fundamental
Change Purchase Price and (y) the right of the Holder of record on such Regular Record Date to receive any interest payment pursuant
to Section 3.01, if applicable).


 


Section
3.07         Notes Purchased in Whole or in Part.


 


Any Note that is to be purchased pursuant
to this Article 3, whether in whole or in part, shall be surrendered at the office of the Paying Agent (with due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder’s attorney duly authorized in writing) and, to the extent that only a part of the Note so surrendered is to
be purchased, the Company shall execute and, upon receipt of a Company Order, the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Note so surrendered that is
not purchased.


 




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Section
3.08         Covenant To Comply with Applicable Laws upon Purchase of Notes.


 


In connection with any purchase of Notes
under Section 3.01, the Company shall, in each case if required by law, (i) comply with the provisions of Rule 13e-4,
Rule 14e-1 and any other tender offer rules under the Exchange Act to the extent any such rules are applicable, (ii) file
a Schedule TO or any successor or similar schedule, if required, under the Exchange Act and (iii) otherwise comply with all
U.S. federal or state securities laws applicable to the Company in connection with offer by the Company to purchase Notes under
Section 3.01, in each case, so as to permit the rights and obligations under this Article 3 to be exercised in the time and
in the manner specified under this Article 3.


 


Section
3.09         Repayment to the Company.


 


To the extent that the aggregate amount
of money deposited by the Company pursuant to Section 3.06 exceeds the aggregate Fundamental Change Purchase Price of the
Notes or portions thereof that the Company is obligated to purchase as of the Fundamental Change Purchase Date, then, following
the Fundamental Change Purchase Date, the Paying Agent shall, upon demand of the Company, promptly return any such excess to the
Company.


 


ARTICLE
4.

CONVERSION


 


Section
4.01         Right To Convert.


 


(a)          Subject
to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option,
to convert all or any portion of its Notes at an initial Conversion Rate of 88.5716 shares of Common Stock per $1,000 aggregate
principal amount of Notes (equivalent to an initial Conversion Price of approximately $11.29 per share of Common Stock) into the
Settlement Amount determined in accordance with Section 4.03(a)(iii), (x) prior to the Close of Business on the Business Day
immediately preceding September 15, 2019, only upon satisfaction of one or more of the conditions described in Section 4.01(b),
and (y) on or after September 15, 2019, at any time until the Close of Business on the Business Day immediately preceding
the stated Maturity Date regardless of whether the conditions described in Section 4.01(b) are satisfied.


 


(b)          (i) 
A Holder may surrender all or any portion of its Notes for conversion during any calendar quarter commencing after the quarter
ending March 31, 2015 if the Closing Sale Price of the Common Stock for at least 20 Trading Days (whether or not consecutive) during
the period of 30 consecutive Trading Days ending on the last Trading Day of the calendar quarter immediately preceding the calendar
quarter in which the conversion occurs, is more than 130% of the applicable Conversion Price in effect on each applicable Trading
Day. Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether the condition described in
this Section 4.01(b)(i) has been met or (y) to verify the Company’s determination regarding such condition.


 




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(ii)          If,
prior to the Close of Business on the Business Day immediately preceding September 15, 2019, the Trading Price per $1,000 principal
amount of Notes on each Trading Day during any five consecutive Trading-Day period (the “Measurement Period”)
is less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such date and (y) the Conversion
Rate in effect on such Trading Day, a Holder may surrender Notes for conversion at any time during the ten consecutive Trading
Days following such Measurement Period. The Company shall determine whether the condition to conversion set forth in this Section 4.01(b)(ii)
has been met, and the Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing
accordingly. Upon written request of the Company, the Bid Solicitation Agent shall determine the Trading Price pursuant to this
Section 4.01(b)(ii) and the definition of “Trading Price” set forth in Section 1.01. The Company shall provide
written notice to the Bid Solicitation Agent (if other than the Company) of the three independent nationally recognized securities
dealers selected by the Company in accordance with the definition of Trading Price, along with the appropriate contact information
for each, and shall instruct such securities dealers to provide bid quotations upon the request of the Bid Solicitation Agent.
However, the Bid Solicitation Agent (if other than the Company) shall have no obligation to solicit market bid quotations for the
Company to determine the Trading Price of the Notes unless the Company has requested such solicitation in writing; and the Company
shall have no obligation to make such request (or, if the Company is the Bid Solicitation Agent, to determine the Trading Price
of the Notes) unless a Holder of a Note provides it and the Trustee with reasonable evidence that the Trading Price per $1,000
principal amount of Notes would be less than 98% of the product of (x) the Closing Sale Price of the Common Stock on such
Trading Day and (y) the Conversion Rate in effect on such Trading Day. At such time, the Company shall instruct the Bid Solicitation
Agent in writing to solicit market bid quotations for the Notes from three independent nationally recognized securities dealers
selected by the Company for the Company to determine (or, if the Company is the Bid Solicitation Agent, the Company shall determine)
the Trading Price per $1,000 principal amount of the Notes beginning on such Trading Day and on each successive Trading Day until
the Trading Price per $1,000 principal amount of Notes for a Trading Day is greater than or equal to 98% of the product of (x) the
Closing Sale Price of the Common Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day. If,
on any Trading Day after the condition to conversion set forth in this Section 4.01(b)(ii) has been met, the Trading Price
per $1,000 principal amount of Notes is greater than or equal to 98% of the product of (x) the Closing Sale Price of the Common
Stock on such Trading Day and (y) the Conversion Rate in effect on such Trading Day, the Company shall so notify the Holders,
the Trustee, the Bid Solicitation Agent and the Conversion Agent (if other than the Trustee) in writing.


 




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(iii)        If
the Company elects to issue or distribute, as the case may be, to all or substantially all holders of the Common Stock (x) any
rights, options or warrants entitling them to subscribe for or purchase, for a period expiring within 45 calendar days after the
declaration date for such issuance, shares of the Common Stock, at a price per share that is less than the average of the Closing
Sale Prices of the Common Stock for the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately
preceding the declaration date for such issuance; or (y) cash, debt securities (or other evidence of indebtedness) or other
assets or securities (excluding dividends or distributions in respect of which an adjustment to the Conversion Rate is made pursuant
to Section 4.04(a)), which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Stock as of
the Trading Day immediately preceding the declaration date for such distribution, then, in either case, the Company must deliver
notice of such distribution, and of the Ex-Dividend Date for such distribution, to the Holders at least 50 Scheduled Trading Days
prior to the Ex-Dividend Date for such distribution. After the Company has delivered such notice, Holders may surrender their Notes
for conversion at any time until the earlier of (a) Close of Business on the Business Day immediately preceding such Ex-Dividend
Date and (b) the Company’s announcement that such issuance or distribution will not take place. Neither the Trustee
nor the Conversion Agent shall have any obligation (I) to determine whether the condition described in this Section 4.01(b)(iii)
has occurred or (II) to verify the Company’s determination regarding such condition.


 


(iv)        If a
transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the Close of Business
on the Business Day immediately preceding September 15, 2019, a holder may surrender Notes for conversion at any time from and
after the date that is 50 Scheduled Trading Days prior to the anticipated effective date of the transaction or event until the
Close of Business on (1) if such transaction or event is a Fundamental Change, the Business Day immediately preceding the
related Fundamental Change Purchase Date, or (2) otherwise, on the 40th Scheduled Trading Day immediately following the effective
date for such transaction or event. To the extent practicable, the Company shall give notice to Holders of the anticipated effective
date for such transaction or event not more than 70 Scheduled Trading Days nor less than 50 Scheduled Trading Days prior to
the anticipated effective date or, if the Company does not have knowledge of such transaction or event at least 50 Scheduled Trading
Days prior to the anticipated effective date, within two Business Days of the date upon which the Company receives notice, or otherwise
becomes aware of such transaction or event (but in no event later than the actual effective date of such transaction or event).
Neither the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether the condition described in this
Section 4.01(b)(iv) has occurred or (y) to verify the Company’s determination regarding such condition.


 




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(v)         Holders
will have the right to surrender Notes for conversion if the Company is a party to a consolidation, merger or binding share exchange
or a sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the Company’s property
and assets that does not also constitute a Fundamental Change, in each case pursuant to which the Common Stock would be converted
into cash, securities or other property. In such event, Holders will have the right to surrender Notes for conversion at any time
from and including the 50th Scheduled Trading Day prior to the anticipated effective date of such transaction to, and including,
the 40th Scheduled Trading Day following the effective date of such transaction. The Company shall notify Holders at least 50 Scheduled
Trading Days prior to the anticipated effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have
any obligation (x) to determine whether the condition described in this Section 4.01(b)(v) has occurred or (y) to verify the Company’s
determination regarding such condition.


 


(vi)        If
the Company calls all or a portion of the Notes for redemption pursuant to Article 10, a Holder of Notes (whether or not the Notes
owned by such Holder are subject to redemption) may convert such Notes at any time after, and including, the Redemption Notice
Date and until the Close of Business on the Business Day immediately preceding the Redemption Date (or, if the Company fails to
pay the Redemption Price on such Redemption Date, the date on which payment of the applicable Redemption Price is made). Neither
the Trustee nor the Conversion Agent shall have any obligation (x) to determine whether the condition described in this Section
4.01(b)(vi) has occurred or (y) to verify the Company’s determination regarding such condition.


 


(c)          If
any of the conditions to conversion described under Sections 4.01(b)(i) through (b)(vi) are satisfied, the Company will so notify
Holders, the Trustee and the Conversion Agent (if other than the Trustee) and issue a press release containing the relevant information
(and make the press release available on the Company’s website) by the Close of Business on the first Business Day on which
the Notes have become convertible as a result thereof.


 


Section
4.02         Conversion Procedures.


 


(a)          Each
Physical Note shall be convertible at the office of the Conversion Agent and, if applicable, in accordance with the Applicable
Procedures.


 


(b)          To
exercise the conversion privilege with respect to a beneficial interest in a Global Note, the Holder must comply with the Applicable
Procedures for converting, and effecting a book-entry transfer to the Conversion Agent of, a beneficial interest on a Global Note
and pay the funds, if any, required by Section 4.02(f) and any taxes or duties if required pursuant to Section 4.02(g),
and the Conversion Agent must be informed of the conversion in accordance with the customary practice of the Depositary.


 


To exercise the conversion privilege with
respect to any Physical Notes, the Holder of such Physical Notes shall:


 


(i)          duly
sign and complete a conversion notice in the form set forth in the Form of Notice of Conversion (the “Conversion Notice”)
or a facsimile of the Conversion Notice;


 




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(ii)         deliver
the Conversion Notice, which is irrevocable, and the Note to the Conversion Agent;


 


(iii)        if
required, furnish appropriate endorsements and transfer documents;


 


(iv)        if
required, pay all transfer or similar taxes as set forth in Section 4.02(g); and


 


(v)         if
required, make any payment required under Section 4.02(f).


 


If, upon conversion of a Note, any shares
of Common Stock are to be issued to a Person other than the Holder of such Note, the related Conversion Notice shall include such
other Person’s name and address.


 


If a Note has been submitted for repurchase
pursuant to a Fundamental Change Purchase Notice, such Note may not be converted except to the extent such Note has been withdrawn
by the Holder and is no longer submitted for repurchase pursuant to a Fundamental Change Purchase Notice or unless such Fundamental
Change Purchase Notice is withdrawn in accordance with Section 3.07 prior to the relevant Fundamental Change Expiration Time.


 


For any Note, the date on which the Holder
of such Note satisfies all of the applicable requirements set forth above with respect to such Note shall be the “Conversion
Date” with respect to such Note.


 


Each conversion shall be deemed to have
been effected as to any such Notes (or portion thereof) surrendered for conversion immediately prior to the Close of Business on
the applicable Conversion Date; provided, however, that except to the extent required by Section 4.04, the person
in whose name any shares of Common Stock shall be issuable upon conversion, if any, shall be treated as a stockholder of record
(i) as of the Close of Business on the last VWAP Trading Day of the applicable Conversion Period in a Combination Settlement
and (ii) as of the Close of Business on the Conversion Date in a Physical Settlement. For the avoidance of doubt, subject
to the satisfaction by the Company of each of its obligations in connection with such conversion and any other conditions set forth
in this Indenture, at the Close of Business on the Conversion Date for such conversion, the converting Holder shall no longer be
the Holder of the Notes so converted.


 


(c)          Endorsement.
Any Notes surrendered for conversion shall, unless shares of Common Stock issuable on conversion are to be issued in the same name
as the registration of such Notes, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the Holder or its duly authorized attorney.


 


(d)          Physical
Notes. If any Physical Notes in a denomination greater than $1,000 shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of the Physical Notes so surrendered, without charge,
new Physical Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered
Physical Notes.


 




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(e)          Global
Notes. Upon the conversion of a beneficial interest in Global Notes, the Conversion Agent shall make a notation in its records
as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any conversions
of Notes effected through any Conversion Agent other than the Trustee.


 


(f)          Interest
Due 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, such Holder must accompany such Note with an
amount of cash equal to the amount of interest that will payable on such Note on the corresponding Interest Payment Date; provided,
however, that a Holder need not make such payment (1) if the Conversion Date follows the Regular Record Date immediately
preceding the Maturity Date; (2) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record
Date and on or prior to the corresponding Interest Payment Date; (3) if the Company has specified a Redemption Date that is after
a Regular Record Date and on or prior to the third Scheduled Trading Day following the corresponding Interest Payment Date; or
(4) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.


 


(g)          Taxes
Due upon Conversion. 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, unless the tax is due because the Holder requests that
any shares be issued in a name other than the Holder’s name, in which case the Holder will pay that tax.


 


Section
4.03         Settlement Upon Conversion.


 


(a)          Settlement.
Subject to this Section 4.03 and Sections 4.06 and 4.07, if the Company has received both Stockholders Approvals prior to
the relevant Settlement Method Election Date, upon conversion of any Note, the Company shall pay or deliver, as the case may be,
to Holders, in full satisfaction of its conversion obligation under Section 4.01, in respect of each $1,000 principal amount
of Notes being converted, a Settlement Amount consisting of, at the election of the Company in accordance with the requirements
specified herein, solely cash (“Cash Settlement”), solely shares of Common Stock (together with cash in lieu
of any fractional share of Common Stock pursuant to Section 4.03(b)) (“Physical Settlement”) or a combination
of cash and shares of Common Stock (“Combination Settlement”).


 




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(i)          Settlement
Election. If the Company has received both Stockholders Approvals prior to the relevant Settlement Method Election Date, all
conversions occurring on or after September 15, 2019 shall be settled in either (i) a Cash Settlement, (ii) a Physical Settlement
or (iii) a Combination Settlement with a particular Specified Dollar Amount. Prior to September 15, 2019, the Company will use
the same Settlement Method for all conversions occurring on the same Conversion Date, but the Company shall not have any obligation
to use the same Settlement Method with respect to conversions that occur on different Conversion Dates, subject to the limitations
set forth in Section 4.03(a)(ii) if the Company has not received both Stockholders Approvals prior to the relevant Settlement Method
Election Date. If the Company elects a Settlement Method (a “Settlement Election”) and a Specified Dollar Amount,
if applicable (a “Specified Dollar Amount Election”), the Company shall provide to the Holders so converting
through the Trustee a notice of such Settlement Method (each such notice, a “Settlement Election Notice”) or
such Specified Dollar Amount (each such notice, a “Specified Dollar Amount Election Notice”), (x) no later than
the Close of Business on the second VWAP Trading Day immediately following the related Conversion Date or (y) in the case of any
conversions occurring on or after September 15, 2019, no later than September 15, 2019 (in either case, the “Settlement
Method Election Date”). In the event that the Company has received both Stockholders Approvals prior to the relevant
Settlement Method Election Date, if the Company does not elect a Settlement Method on or prior to the relevant Settlement Method
Election Date, the Company shall no longer have the right to elect Cash Settlement or Physical Settlement, and the Company shall
be deemed to have elected Combination Settlement in respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000
principal amount of Notes converted shall be deemed to be $1,000. If the Company has received both Stockholders Approvals prior
to the relevant Settlement Method Election Date, and the Company elects Combination Settlement but does not notify converting Holders
of the Specified Dollar Amount per $1,000 principal amount of Notes on or prior to the relevant Settlement Method Election Date,
such Specified Dollar Amount will be deemed to be $1,000.


 


In addition, if the Company has
received both Stockholders Approvals prior to the relevant Settlement Method Election Date, the Company may, prior to September
15, 2019, at its option, irrevocably elect Combination Settlement with a particular Specified Dollar Amount for all conversions
subsequent to its notice to Holders thereof by notice of such election to Holders, the Trustee and the Conversion Agent.


 


(ii)         Notwithstanding
anything to the contrary in the Notes or this Indenture, the Company shall not be permitted to elect Physical Settlement or Combination
Settlement with respect to any conversion of Notes and Cash Settlement shall be deemed to apply to such conversion unless prior
to the relevant Settlement Method Election Date the Company has received both Stockholders Approvals; provided that with
respect to any Conversion Date occurring prior to September 15, 2019, the Company may elect Physical Settlement for all Notes converted
on such Conversion Date only if:


 


(A)         the
aggregate number of shares of Common Stock deliverable upon conversion of such Notes as if Physical Settlement applied to all such
Notes (including, for the avoidance of doubt, any Additional Shares) is less than:


 




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(1)         the
lesser of (x) the Aggregate NYSE Share Cap and (y) the Aggregate Available Share Cap; minus


 


(2)         the
aggregate number of shares of Common Stock delivered or deliverable, in each case, upon previous conversions of Notes; and


 


(B)         the
Company informs converting Holders, the Conversion Agent and the Trustee that the Company has elected Physical Settlement for such
Notes no later than the Close of Business on the second VWAP Trading Day immediately following the Conversion Date for such Notes.


 


The Company shall promptly notify
Holders, the Trustee and the Conversion Agent by press release upon obtaining any of the Stockholders Approvals.


 


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


 


(A)         if
the Company elects Physical Settlement, the Company shall deliver to the converting Holder, in respect of each $1,000 principal
amount of its Notes being converted, a number of shares of Common Stock equal to the applicable Conversion Rate, together with
cash in lieu of any fractional shares of Common Stock pursuant to Section 4.03(b);


 


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


 


(C)         if
the Company elects (or is deemed to have elected) Combination Settlement, the Company shall pay or deliver, as the case may be,
to the converting Holder, in respect of each $1,000 principal amount of its Notes being converted, an amount of cash and number
of shares of Common Stock, if any, equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading
Days during the related Conversion Period.


 




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(iv)        Delivery
Obligation. The Settlement Amounts upon conversion of the Notes will be paid or delivered, as the case may be, by the Company
through the Conversion Agent. The Company shall pay or deliver, as the case may be, the Settlement Amount due in respect of its
conversion obligation under this Section 4.03, (i) on the third Business Day immediately following the relevant Conversion
Date, if the Company elects Physical Settlement and (ii) on the third Business Day immediately following the last VWAP Trading
Day of the related Conversion Period, in any other case; provided, however, that if prior to the Conversion Date
for any converted Notes, the Common Stock has been replaced by Reference Property consisting solely of cash, the Company will pay
the conversion consideration due in respect of such conversion on the third Trading Day immediately following the related Conversion
Date, and, notwithstanding the foregoing in this Section 4.03, no Conversion Period will apply to those conversions. For the avoidance
of doubt, in the case of Cash Settlement or Combination Settlement, if a VWAP Market Disruption Event occurs on a Scheduled Trading
Day during the Conversion Period, or if such Scheduled Trading day is not a VWAP Trading Day for any other reason, then the Daily
Conversion Value or Daily Settlement Amount, as applicable, will be determined on the next following VWAP Trading Day, and delivery
of the Settlement Amount will be delayed accordingly. No interest will accrue on account of such delay.


 


(b)          Fractional
Shares. Notwithstanding the foregoing, the Company will not issue fractional shares of Common Stock as part of the Settlement
Amount due with respect to any converted Note. Instead, if any Settlement Amount includes a fraction of a share of the Common Stock,
the Company will, in lieu of delivering such fraction of a share of Common Stock, pay an amount of cash equal to the product of
such fraction of a share and (i) in a Physical Settlement, the Daily VWAP on the relevant Conversion Date, or if such Conversion
Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day or (ii) in the case of any other Settlement Method,
the Daily VWAP on the last VWAP Trading Day of the relevant Conversion Period.


 


(c)          Conversion
of Multiple Notes by a Single Holder. If a Holder surrenders more than one Note for conversion on a single Conversion Date,
the Company will calculate the amount of cash and the number of shares of Common Stock due with respect to such Notes as if such
Holder had surrendered for conversion one Note having an aggregate principal amount equal to the sum of the principal amounts of
each of the Notes surrendered for conversion by such Holder on such Conversion Date or, if the Notes surrendered for conversion
are beneficial interests in a Global Note, based on such other aggregate number of Notes, or beneficial interests therein, being
surrendered by the Holder for conversion on the same date as the Depositary may otherwise request.


 


(d)          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 such Note, and the Company’s delivery or payment, as the case may
be, of cash, shares of Common Stock or a combination of cash and shares of Common Stock into which a Note is convertible will be
deemed to satisfy and discharge in full the Company’s obligation to pay the principal of, and accrued and unpaid interest,
if any, on, such Note to, but excluding, the Conversion Date; provided, however, that subject to Section 4.02(f),
if a Holder converts a Note after the Close of Business on a Regular Record Date and prior to the Open of Business on the corresponding
Interest Payment Date, the Company will still be obligated to pay the interest due on such Interest Payment Date to the Holder
of such Note on such Regular Record Date.


 




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As a result, except as otherwise provided
in the proviso to the immediately preceding sentence, 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. In addition, if the Settlement Amount for any Note
includes both cash and shares of Common Stock, accrued but unpaid interest will be deemed to be paid first out of the amount of
cash delivered upon such conversion.


 


(e)          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, if it is not then the
Conversion Agent, 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.


 


On the first Business Day immediately
following the last VWAP Trading Day of the Conversion Period applicable to any Note surrendered for conversion in a Cash Settlement
or a Combination Settlement, the Company will deliver a written notice to the Conversion Agent and the Trustee (if not also the
Conversion Agent) stating the amount of cash and the number of shares of Common Stock, if any, that the Company is obligated to
pay or deliver, as the case may be, to satisfy its conversion obligation with respect to each Note converted on such Conversion
Date.


 


Section
4.04         Adjustment of Conversion Rate.


 


The Conversion Rate will be adjusted as
described in this Section 4.04, except that no adjustment to the Conversion Rate will be made for a given transaction if Holders
of the Notes will participate in that transaction, without conversion of the Notes, on the same terms and at the same time as a
holder of a number of shares of Common Stock equal to the principal amount of a Holder’s Notes divided by $1,000 and multiplied
by the Conversion Rate would participate.


 


(a)          If
the Company issues solely shares of Common Stock as a dividend or distribution on all or substantially all shares of the Common
Stock, or if the Company subdivides or combines the Common Stock, the Conversion Rate will be adjusted based on the following formula:


  


	CR1 = CR0 x	OS1
	OS0


 


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 combination, as applicable;



 


		CR1 =	the Conversion Rate in effect immediately after the Open
of Business on such Ex-Dividend Date of such dividend or distribution, or immediately after the Open of Business on the effective
date of such share split or combination, as applicable;



 




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		OS0 =	the number of shares of Common Stock outstanding immediately
prior to the Open of Business on such 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 combination, as applicable; and



 


		OS1 =	the number of shares of Common Stock outstanding immediately
after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination
of common stock, as the case may be.



 


Any adjustment made under this clause (a) will become
effective immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution (regardless of whether
the dividend or distribution date is scheduled to occur after the Maturity Date), or immediately after the Open of Business on
the effective date of such subdivision or combination of Common Stock, as the case may be. If such dividend, distribution, subdivision
or combination described in this clause (a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted,
effective as of the date the Board of Directors or a duly authorized committee thereof determines not to pay such dividend or distribution
or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution
had not been declared or subdivision or combination had not been announced.


 


(b)          If
an Ex-Dividend Date occurs for a distribution to all or substantially all holders of the Common Stock any rights, options or warrants
entitling them, for a period of not more than 45 calendar days from the announcement date for such distribution, to subscribe for
or purchase shares of the Common Stock, at a price per share less than the average of the Closing Sale Prices of the Common Stock
for the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the announcement date
for such distribution, the Conversion Rate will be increased based on the following formula


 


	CR1 = CR0 x	
        OS0
        + X

	OS0 + Y


 


		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 for such distribution;



 


		OS0 =	the number of shares of Common Stock outstanding immediately
prior to the Open of Business on such Ex-Dividend Date for such distribution;



 




    	43



    	 



    

  


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



 


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



 


Any increase made under this clause (b) will be made
successively whenever any such rights, options or warrants are issued and will become effective immediately after the Open of Business
on the Ex-Dividend Date for such distribution, regardless of whether the distribution date is scheduled to occur after the Maturity
Date. To the extent that such rights, options or warrants expire prior to the Maturity Date and shares of Common Stock are not
delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants were scheduled
to be distributed prior to the Maturity Date and are not so distributed, the Conversion Rate shall be decreased to the Conversion
Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred.


 


For purposes of this Section 4.04(b) and Section 4.01(b)(iii)(x),
in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Common Stock
at a price that is less than the average of the Closing Sale Prices of the Common Stock for each Trading Day in the applicable
10 consecutive Trading-Day period, there shall be taken into account any consideration the Company receives for such rights, options
or warrants and any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be determined
in good faith by the Board of Directors or a duly authorized committee thereof.


 


(c)          If
an Ex-Dividend Date occurs for a distribution (the “Relevant Distribution”) of shares of the Company’s
Capital Stock, evidences of the Company’s indebtedness or other assets or property of the Company’s or rights, options
or warrants to acquire the Company’s Capital Stock or other securities, to all or substantially all holders of Common Stock
(excluding (i) dividends or distributions and rights, options or warrants as to which an adjustment was effected under clause (a)
or (b) above; (ii) dividends or distributions paid exclusively in cash; and (iii) Spin-Offs), then the Conversion Rate will be
increased based on the following formula:


  




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	CR1 = CR0 x	
        SP0

	SP0 - FMV


 


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 for such distribution;



 


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



 


		FMV =	the fair market value (as determined in good faith by
the Board of Directors or a duly authorized committee thereof) of the shares of Capital Stock, evidences of indebtedness, assets
or property or rights, options or warrants distributed with respect to each outstanding share of Common Stock as of the Open of
Business on the Ex-Dividend Date for such distribution.



 


Any increase made under the above portion of this
clause (c) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. No adjustment
pursuant to the above formula will result in a decrease of the Conversion Rate. However, if such distribution is scheduled to be
paid or made prior to the Maturity Date and is not so paid or made, the Conversion Rate shall be decreased to be the Conversion
Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV”
(as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase,
each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms
as holders of the Common Stock, without having to convert its Notes, the amount and kind of the Relevant Distribution that such
Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the
Ex-Dividend Date for the distribution.


 


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


 


	CR1 = CR0 x	
        FMV0
        + MP0

	MP0 


 


where,


 


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



 




    	45



    	 



    

 


 


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



 


		FMV0 =	the average of the Closing Sale Prices of the Capital
Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock over the
first 10 consecutive Trading-Day period commencing on, and including, the Ex-Dividend Date for the Spin-Off (such period, the
“Valuation Period”); and



 


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



 


The adjustment to the applicable conversion rate under
the preceding paragraph of this clause (c) will be determined on the last day of the Valuation Period but will be given effect
immediately after the Open of Business on the Ex-Dividend Date for the Spin-Off. If the Ex-Dividend Date for the Spin-Off is less
than 10 Trading Days prior to, and including, the end of the Conversion Period in respect of any conversion, references within
this clause (c) to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number
of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last VWAP Trading
Day of such Conversion Period. In respect of any conversion during the Valuation Period for any Spin-Off, references within this
clause (c) related to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with such lesser number
of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but excluding, the relevant Conversion
Date.


 


For purposes of the second adjustment formula set
forth in this Section 4.04(c), (i) the Closing Sale Price of any Capital Stock or similar equity interest shall be calculated
in a manner analogous to that used to calculate the Closing Sale Price of the Common Stock in the definition of “Closing
Sale Price” set forth in Section 1.01, (ii) whether a day is a Trading Day (and whether a day is a Scheduled Trading
Day and whether a Market Disruption Event has occurred) for such Capital Stock or similar equity interest shall be determined in
a manner analogous to that used to determine whether a day is a Trading Day (or whether a day is a Scheduled Trading Day and whether
a Market Disruption Event has occurred) for the Common Stock, and (iii) whether a day is a Trading Day to be included in a
Valuation Period will be determined based on whether a day is a Trading Day for both the Common Stock and such Capital Stock or
similar equity interest.


 




    	46



    	 



    

  


Subject to Section 4.04(g), for the purposes
of this Section 4.04(c), rights, options or warrants distributed to all or substantially all holders of the Common Stock entitling
them to acquire the Company’s Capital Stock or other securities, (either initially or under certain circumstances), which
rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (1) are
deemed to be transferred with such shares of Common Stock; (2) are not exercisable; and (3) are also issued in respect
of future issuances of Common Stock (including, for the avoidance of doubt, upon settlement of conversions of Notes), shall be
deemed not to have been distributed for purposes of this Section 4.04(c) (and no adjustment to the Conversion Rate under this
Section 4.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants
shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made
under this Section 4.04(c). If any such rights, options or warrants, distributed prior to the Issue Date are subject to events,
upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution
and Ex-Dividend Date of such deemed distribution (in which case the original rights, options or warrants shall be deemed to terminate
and expire on such date without exercise by any of the holders). In addition, in the event of any distribution or deemed distribution
of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect
thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under
this Section 4.04(c) was made, (1) in the case of any such rights, options or warrants which shall all have been redeemed
or purchased without exercise by any Holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall
be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted
to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution,
equal to the per share redemption or purchase price received by holders of Common Stock with respect to such rights, options or
warrants (assuming each such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the
date of such redemption or purchase, and (2) in the case of such rights, options or warrants which shall have expired or been
terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had
not been issued.


 


For purposes of Sections 4.04(a) through (c),
if any dividend or distribution to which this Section 4.04(c) applies includes one or both of:


 


(A)         a
dividend or distribution of shares of Common Stock to which Section 4.04(a) also applies (the “Clause A Distribution”);
or


 


(B)         an
issuance of rights, options or warrants entitling holders of the Common Stock to subscribe for or purchase shares of the Common
Stock to which Section 4.04(b) also applies (the “Clause B Distribution”),


 


then (i) such dividend or distribution, other
than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a distribution to which this Section 4.04(c)
applies (the “Clause C Distribution”) and any Conversion Rate adjustment required to be made under this
Section 4.04(c) with respect to such Clause C Distribution shall be made, (ii) the Clause B Distribution, if
any, shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 4.04(b)
with respect thereto shall then be made, except that, if determined by the Company, (A) the “Ex-Dividend Date”
of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the
Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or the Clause B
Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date”
within the meaning of Section 4.04(b), and (iii) the Clause A Distribution, if any, shall be deemed to immediately
follow the Clause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the
Company, (A) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution, if any,
shall be deemed to be the Ex-Dividend Date of the Clause C Distribution, and (B) any shares of Common Stock included
in the Clause A Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such
Ex-Dividend Date or such effective date” within the meaning of Section 4.04(a).


 




    	47



    	 



    

 


(d)          If
an Ex-Dividend Date occurs for a cash dividend or distribution to all, or substantially all, holders of the outstanding Common
Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up),
the Conversion Rate will be increased based on the following formula:


  


	CR1 = CR0 x	
        SP0

	SP0 - C


 


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



 


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



 


Any increase made under this clause (d) shall become
effective immediately after the Open of Business on the Ex-Dividend date for such dividend or distribution. No adjustment pursuant
to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this
clause (d) is scheduled to be paid or made prior to the Maturity Date but is not so paid or made, the new Conversion Rate shall
be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.


 


Notwithstanding the foregoing, if “C”
(as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase,
each Holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders
of shares of the Common Stock, without having to convert its Notes, the amount of cash that such Holder would have received if
such Holder owned a number of shares of Common Stock equal to the applicable Conversion Rate on the Ex-Dividend Date for such cash
dividend or distribution.


 




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(e)          If
the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock, and if the
cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Closing
Sale Prices of the Common Stock over the 10 consecutive Trading-Day period commencing on, and including, the Trading Day next succeeding
the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Offer Expiration
Date”), the Conversion Rate will be increased based on the following formula:


  


	CR1 = CR0 x	
        AC + (SP1
        x OS1)

	 	OS0 x SP1


 


where,


 


		CR0 =	the Conversion Rate in effect immediately prior to the
Open of Business on the Trading Day next succeeding the Offer Expiration Date;



 


		CR1 =	the Conversion Rate in effect immediately after the Open
of Business on the Trading Day next succeeding the Offer Expiration Date;



 


		AC =	the aggregate value of all cash and any other consideration
(as determined in good faith by the Board of Directors or a duly authorized committee thereof) paid or payable for shares of Common
Stock purchased in such tender or exchange offer;



 


		OS0 =	the number of shares of Common Stock outstanding immediately
prior to the time (the “Offer Expiration Time”) such tender or exchange offer expires (prior to giving effect
to such tender or exchange offer);



 


		OS1 =	the number of shares of Common Stock outstanding immediately
after the Offer 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 Closing Sale Prices of the Common
Stock over the 10 consecutive Trading-Day period commencing on, and including, the Trading Day next succeeding the Offer Expiration
Date.



 


The adjustment to the Conversion Rate under the preceding
paragraph of this clause (e) will be determined at the Close of Business on the tenth Trading Day immediately following, but excluding,
the Offer Expiration Date but will be given effect at the Open of Business on the Trading Day next succeeding the Offer Expiration
Date. If the Trading Day next succeeding the Offer Expiration Date is less than 10 Trading Days prior to, and including, the end
of the Conversion Period in respect of any conversion, references within this clause (e) to 10 Trading Days shall be deemed to
be replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including,
the Trading Day next succeeding the Offer Expiration Date to, and including, the last VWAP Trading Day of such Conversion Period.
In respect of any conversion during the 10 Trading Days commencing on the Trading Day next succeeding the Offer Expiration Date,
references within this clause (e) to 10 Trading Days shall be deemed to be replaced, solely in respect of that conversion, with
such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Offer Expiration Date
to, but excluding, the relevant Conversion Date. No adjustment pursuant to the above formula will result in a decrease of the Conversion
Rate.


 




    	49



    	 



    

 


(f)          Special
Settlement Provisions. Notwithstanding anything to the contrary herein, if a Holder converts a Note and:


 


(i)          Combination
Settlement is applicable to such Note and shares of Common Stock are deliverable to settle the Daily Net Share Number for a given
VWAP Trading Day within the Conversion Period applicable to such Note;


 


(ii)         any
distribution, transaction or event described in Sections 4.04(a) through (e) has not yet resulted in an adjustment to the Conversion
Rate on such VWAP Trading Day; and


 


(iii)        the
shares of Common Stock deliverable in respect of such VWAP Trading Day are not entitled to participate in the relevant distribution
or transaction (because such shares of Common Stock were not held on a related Record Date or otherwise),


 


then the Company will adjust the number of shares
of Common Stock delivered in respect of the relevant VWAP Trading Day to reflect the relevant distribution or transaction.


 


If a Holder converts a Note and:


 


(i)          Physical
Settlement is applicable to such Note;


 


(ii)         any
distribution or transaction described in Sections 4.04(a) through (e) has not yet resulted in an adjustment to the Conversion Rate
on a given Conversion Date; and


 


(iii)        the
shares of Common Stock deliverable on settlement of the related conversion are not entitled to participate in the relevant distribution
or transaction (because such shares of Common Stock were not held on a related Record Date or otherwise),


 


then the Company will adjust the number of shares
of Common Stock delivered in respect of the relevant conversion to reflect the relevant distribution or transaction.


 




    	50



    	 



    

  


Notwithstanding the foregoing, if a Conversion Rate
adjustment becomes effective on any Ex-Dividend Date as described above, and a Holder that has converted its Notes on or after
such Ex-Dividend Date and on or prior to the related Record Date would be treated as the record holder of shares of Common Stock
as of the related Conversion Date pursuant to Section 4.03 based on an adjusted Conversion Rate for such Ex-Dividend Date, then,
notwithstanding the foregoing Conversion Rate adjustment provisions, the Conversion Rate adjustment relating to such Ex-Dividend
Date will not be made for such converting Holder. Instead, such Holder will be treated as if such Holder were the record owner
of the shares of Common Stock on an unadjusted basis and participate in the related dividend, distribution or other event giving
rise to such adjustment.


 


(g)          Poison
Pill. If a Holder converts a Note, to the extent that the Company has a rights plan in effect, if Physical Settlement applies
to such Note, on the Conversion Date applicable to such Note, and if Combination Settlement applies to such Note on any VWAP Trading
Day in the Conversion Period applicable to such Note, the Holder converting such Note will receive, in addition to any shares of
Common Stock otherwise received in connection with such conversion on such Conversion Date or such VWAP Trading Day, as the case
may be, the rights under the rights plan, unless prior to such Conversion Date or such VWAP Trading Day, as the case may be, the
rights have separated from the Common Stock, in which case, and only in such case, the Conversion Rate will be adjusted at the
time of separation as if the Company distributed to all holders of the Common Stock, Distributed Property as described in Section 4.04(c),
subject to readjustment in the event of the expiration, termination or redemption of such rights.


 


(h)          Deferral
of Adjustments. Notwithstanding anything to the contrary herein, the Company will not be required to adjust the Conversion
Rate unless such adjustment would result in a change of at least one percent; provided, however, that the Company shall
carry forward any adjustments that are less than one percent of the Conversion rate and make such carried forward adjustments (i)
when the cumulative net effect of all adjustments not yet made will result in a change of at least one percent of the Conversion
Rate or (ii) regardless of whether the aggregate adjustment is less than one percent, (1) upon any offer to purchase the Notes
following a Fundamental Change, (2) on each of the VWAP Trading Days within any Conversion Period, (3) upon any conversion of Notes,
(4) on the Effective Date for any Fundamental Change or Make-Whole Fundamental Change and (5) upon any Redemption Notice Date.


 


(i)          Limitation
on Adjustments. Except as stated in this Section 4.04, the Company will not adjust the Conversion Rate for the issuance
of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase
shares of Common Stock or such convertible or exchangeable securities. If, however, the application of the formulas in Sections
4.04(a) through (e) would result in a decrease in the Conversion Rate, then, except to the extent of any readjustment to the Conversion
Rate, no adjustment to the Conversion Rate will be made (other than as a result of a reverse share split or share combination).


 




    	51



    	 



    

  


For purposes of this Section 4.04, the number
of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company so long as the Company
does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company, but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.


 


Section
4.05         Discretionary and Voluntary Adjustments.


 


(a)          Discretionary
Adjustments. Whenever any provision of this Indenture requires the Company to calculate the Closing Sale Prices, the Daily
VWAPs or any function thereof over a span of multiple days (including during an Conversion Period), the Company will make appropriate
adjustments to each, if any, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring
an adjustment to the Conversion Rate where the effective date, Ex-Dividend Date or Offer Expiration Date of the event occurs, at
any time during the period when such Closing Sale Prices, the Daily VWAPs or function thereof is to be calculated.


 


(b)          Voluntary
Adjustments. The Company is permitted to increase the Conversion Rate of the Notes by any amount for a period of at least 20
Business Days if such increase is irrevocable for such period and the Board of Directors determines that such increase would be
in the Company’s best interest; provided that the Company must give at least 15 days’ prior notice of any such
increase in the Conversion Rate. The Company may also (but is not required to) increase the Conversion Rate to avoid or diminish
income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution
of shares (or rights to acquire shares) or similar event.


 


Section
4.06         Adjustment to Conversion Rate Upon Conversion in Connection with
a Make-Whole Fundamental Change or a Redemption Notice.


 


(a)          Increase
in the Conversion Rate. If (i) a Holder elects to convert its Notes in connection with a Make-Whole Fundamental Change, or (ii)
a Holder elects to convert its Notes at any time from, and including, a Redemption Notice Date as provided in Section 10.02 to
the Close of Business on the Business Day immediately preceding the Redemption Date, then, in either case, the Company shall, to
the extent provided herein, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional
shares of Common Stock (the “Additional Shares”), as described in this Section 4.06. A conversion of Notes
shall be deemed for these purposes to be “in connection with” a Make-Whole Fundamental Change if the relevant Conversion
Notice is received by the Conversion Agent 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 Purchase Date or, if such Make-Whole
Fundamental Change is not also a Fundamental Change, the 40th Scheduled Trading Day immediately following the Effective Date for
such Make-Whole Fundamental Change (such period, the “Make-Whole Fundamental Change Period”).


 




    	52



    	 



    

  


(b)          Determining
the Number of Additional Shares. The number of Additional Shares, if any, by which the Conversion Rate will be increased for
a Holder that converts its Notes in connection with a Make-Whole Fundamental Change or a Redemption Notice, as applicable, shall
be determined by reference to the table attached as Schedule A, based on the Effective Date, and the price (the “Stock
Price”) paid (or deemed paid) per share of the Common Stock in the Make-Whole Fundamental Change or in connection with
the Redemption Notice, as applicable, as determined under the two immediately following sentences. If the holders of the Common
Stock receive only cash in a Make-Whole Fundamental Change described in clause (2) of the definition of “Fundamental
Change,” the Stock Price shall be the cash amount paid per share of Common Stock. Otherwise, the Stock Price shall be the
average of the Closing Sale Prices of the Common Stock over the five consecutive Trading-Day period ending on, and including, the
Trading Day immediately preceding the relevant Effective Date.


 


(c)          Interpolation
and Limits. The exact Stock Prices and Effective Dates may not be set forth in the table in Schedule A, in which
case:


 


(i)          If
the Stock Price is between two Stock Prices in the table or the Effective Date is between two dates in the table, the number of
Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set forth for the
higher and lower Stock Prices and the earlier and later dates, as applicable, based on a 365 day year.


 


(ii)         If
the Stock Price is greater than $75.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table in Schedule A), no Additional Shares will be added to the Conversion Rate.


 


(iii)        If
the Stock Price is less than $8.89 per share (subject to adjustments in the same manner as the Stock Prices set forth in the column
headings of the table in Schedule A), no Additional Shares will be added to the Conversion Rate.


 


Notwithstanding the foregoing, in no event
will the Conversion Rate be increased on account of a Make-Whole Fundamental Change or a Redemption Notice to exceed 112.4859 shares
of Common Stock per $1,000 principal amount of Notes, subject to adjustments in the same manner as the Conversion Rate is required
to be adjusted as set forth in Section 4.04.


 


(iv)        The
Stock Prices set forth in the column headings of the table in Schedule A shall be adjusted as of any date on which
the Conversion Rate of the Notes is otherwise required to be adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior
to such adjustment giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted.
The number of Additional Shares set forth in such table shall be adjusted in the same manner and at the same time as the Conversion
Rate is required to be adjusted as set forth in Section 4.04.


 




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(d)          Notices.
The Company will notify Holders, the Trustee and the Conversion Agent of the anticipated Effective Date of any Make-Whole Fundamental
Change and issue a press release as soon as practicable after the Company first determines the anticipated Effective Date of such
Make-Whole Fundamental Change (and make the press release available on the Company’s website). The Company will use its commercially
reasonable efforts to give notice to Holders of the anticipated Effective Date of such Make-Whole Fundamental Change not more than
70 Scheduled Trading Days nor less than 50 Scheduled Trading Days prior to the anticipated Effective Date.


 


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


 


(a)          Merger
Events. In the case of:


 


(i)          any
recapitalization, reclassification or change of the Common Stock (other than changes resulting from a split, subdivision or combination
for which an adjustment was made pursuant to Section 4.04(a));


 


(ii)         any
consolidation, merger, combination, binding share exchange or similar transaction involving the Company;


 


(iii)        any
sale, assignment, conveyance, transfer, lease or other disposition to a third party of the consolidated property and assets of
the Company as an entirety or substantially as an entirety; or


 


(iv)        a
liquidation or dissolution of the Company;


 


and, in each case, as a result of which the Common Stock would
be converted into, or exchanged for, common stock, other securities, other property or assets (including cash or any combination
thereof) (any such event, a “Merger Event,” any such common stock, other securities, other property or assets
(including cash or any combination thereof), “Reference Property,” and (i) the amount and kind of Reference
Property that a holder of one share of Common Stock is entitled to receive in the applicable Merger Event, or (ii) if as a result
of the applicable Merger Event, each share of Common Stock is converted into, or exchanged for, the right to receive more than
a single type of consideration (determined based in part upon any form of stockholder election), the per share of Common Stock
weighted average of the amounts and kinds of Reference Property received by the holders of Common Stock that affirmatively make
such an election (disregarding, for these purposes, any arrangement to deliver cash in lieu of any fractional security or other
unit of Reference Property), a “Unit of Reference Property”) then, at the effective time of such Merger Event,
Holders of each $1,000 principal amount of Notes shall be entitled thereafter to convert such Notes into the kind and amount of
Reference Property that a Holder of a number of shares of Common Stock equal to the Conversion Rate in effect immediately prior
to such Merger Event would have owned or been entitled to receive upon such Merger Event, and, prior to or at the effective time
of such Merger Event, the Company or the successor or purchasing person, as the case may be, shall execute with the Trustee a supplemental
indenture providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however,
that at and after the effective time of the Merger Event, (x) the Company will continue to have the right to determine the
Settlement Method upon conversion of the Notes pursuant to Sections 4.03(a)(i) and 4.03(a)(ii), as applicable and (y) (i) any
amount payable in cash upon conversion of the Notes in accordance with Section 4.03 and 4.06 shall continue to be payable in cash,
(ii) the number of shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes
in accordance with Section 4.03 and 4.06 shall instead be deliverable in Units of Reference Property that a Holder of that number
of shares of Common Stock would have received in such Merger Event and (iii) the Daily VWAP and the Closing Sale Price will,
to the extent reasonably possible, be calculated based on the value of a Unit of Reference Property and the definitions of VWAP
Trading Day and VWAP Market Disruption Event shall be determined by reference to the components of a Unit of Reference Property.
The Company shall notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted
average as soon as practicable after such determination is made.


 




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The Company shall not become a party to
any Merger Event unless its terms are consistent with this Section 4.07. Such supplemental indenture described in the immediately
preceding paragraph shall provide for adjustments which shall be as nearly equivalent to the adjustments provided for in this Article
4 in the judgment of the Board of Directors or the board of directors of the successor person. If, in the case of any such Merger
Event, the Reference Property receivable thereupon by a holder of Common Stock includes shares of stock, securities or other property
or assets (including cash or any combination thereof) of a person other than the successor or purchasing person, as the case may
be, in such Merger Event, then such indenture shall also be executed by such other person.


 


If the Notes become convertible into, or
exchanged for Reference Property, the Company shall notify the Trustee and the Conversion Agent, and shall issue a press release
containing the relevant information (and make such press release available on the Company’s website).


 


(b)          Notice
of Supplemental Indentures. The Company shall cause written notice of the execution of such supplemental indenture to be mailed
to each Holder, at the address of such Holder as it appears on the register of the Notes maintained by the Registrar, within 20
calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture. The above provisions of this Section 4.07 shall similarly apply to successive Merger Events.


 


(c)          Prior
Notice. In addition, at least 20 Scheduled Trading Days before any Merger Event, the Company shall give notice to Holders of
such Merger Event, or, if the Company has not publicly announced such Merger Event at such time, as promptly as practicable after
publicly announcing such Merger Event. In any such notice, the Company shall also specify the composition of the Unit of Reference
Property for such Merger Event, or, if the Company has not determined the composition of such Unit of Reference Property at such
time, the Company will provide an additional written notice to Holders that states the composition of such Unit of Reference Property
as promptly as practicable after determining its composition.


 




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(d)          Cash
Mergers. Notwithstanding anything to the contrary herein, if the consideration paid to holders of the Common Stock in any Merger
Event is comprised entirely of cash, then, for any conversion of Notes following such Merger Event, (i) the consideration due upon
the conversion of each $1,000 principal amount of Notes shall be solely in cash in an amount equal to the Conversion Rate in effect
on the Conversion Date (including any adjustment as set forth in Section 4.06), multiplied by the price paid per share of
Common Stock in such Merger Event and (ii) the Company’s conversion obligation will be determined and paid to Holders in
cash on the third Business Day following the applicable Conversion Date.


 


Section
4.08         Certain Covenants.


 


(a)          Reservation
of Shares. As of the Issue Date, the Company shall have reserved and shall keep available, free from preemptive rights, out
of its authorized but unissued Common Stock that is not committed for any other purpose, 2,583,059 shares of Common Stock for the
purpose of satisfying conversions of Notes through Physical Settlement. Upon obtaining the Shareholder Approval contemplated in
clause (i) of the definition thereof, the Company shall reserve and keep available thereafter, free from preemptive rights, out
of its authorized but unissued Common Stock that is not committed for any other purpose, a number of shares of Common Stock at
least equal to the product of (i) the number of Notes then outstanding multiplied by (ii) the maximum Conversion Rate of 112.4589
shares of Common Stock, for the purpose of satisfying conversions of the Notes, which shall be sufficient to satisfy conversions
of all Outstanding Notes through Physical Settlement.


 


(b)          Certain
other Covenants. The Company covenants that all shares of Common Stock that may be issued upon conversion of Notes shall be
newly issued shares or treasury shares, shall be issued in book-entry form, shall be duly authorized, validly issued, fully paid
and non-assessable and shall be free from preemptive rights and free from any tax, lien or charge (other than those created by
the Holder or due to a change in registered owner). The Company shall list or cause to have quoted any shares of Common Stock to
be issued upon conversion of Notes on each national securities exchange or over-the-counter or other domestic market on which the
Common Stock is then listed or quoted.


 


Section
4.09         Responsibility of Trustee.


 


The Trustee and any Conversion Agent shall
not at any time be under any duty or responsibility to any Holder of Notes to determine or calculate the Conversion Rate, to determine
whether any facts exist which may require any adjustment of the Conversion Rate, or to confirm the accuracy of any such adjustment
when made or the appropriateness of the method employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee and any other Conversion Agent (if other than the Company) shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock or of any other securities or property that may at
any time be issued or delivered upon the conversion of any Notes; and the Trustee and the Conversion Agent (if other than the Company)
make no representations with respect thereto. Neither the Trustee nor any Conversion Agent (if other than the Company) shall be
responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Notes for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article 4. The rights, privileges, protections, immunities and benefits
given to the Trustee, including without limitation its right to be compensated, reimbursed and indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, including its capacity as Conversion Agent and as Bid
Solicitation Agent.


 




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Section
4.10         Notice of Adjustment.


 


Whenever the Conversion Rate is adjusted
as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent (if other than the Trustee) an Officer’s
Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring
such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion
Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall (i) issue a press
release and make the press release available on the Company’s website and (ii) prepare a notice of such adjustment of the
Conversion Rate, in each case, setting forth the adjusted Conversion Rate and the date as of which each adjustment becomes effective
and shall deliver such notice of such adjustment of the Conversion Rate to the Holder of each Note at his or her last address appearing
on the Register provided for in Section 2.06 of this Indenture, within 20 days after execution thereof. Failure to issue such press
release or deliver such notice shall not affect the legality, effectiveness or validity of any such adjustment and shall not be
an Event of Default under this Indenture.


 


Section
4.11         Notice to Holders.


 


(a)          Notice
to Holders Prior to Certain Actions. The Company shall deliver notices of the events specified below at the times specified
below and containing the information specified below unless, in each case, (i) pursuant to this Indenture, the Company is already
required to deliver notice of such event containing at least the information specified below at an earlier time or, (ii) the Company,
at the time it is required to deliver a notice, does not have knowledge of all of the information required to be included in such
notice, in which case, the Company shall (A) deliver notice at such time containing only the information that it has knowledge
of at such time (if it has knowledge of any such information at such time), and (B) promptly upon obtaining knowledge of any such
information not already included in a notice delivered by the Company, deliver notice to each Holder with a copy to the Trustee
and the Conversion Agent containing such information. In each case, the failure by the Company to give such notice, or any defect
therein, shall not affect the legality or validity of such event.


 


(i)          Voluntary
Increases. If the Company increases the Conversion Rate pursuant to Section 4.05(b), the Company shall mail to the Holders
with a copy to the Trustee and the Conversion Agent a notice of the increased Conversion Rate and the period during which such
increased Conversion Rate will be in effect at least 15 calendar days prior to the date the increased Conversion Rate takes effect,
in accordance with the applicable law.


 




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(ii)         Dissolutions,
Liquidations and Winding-Ups. If there is a voluntary or involuntary dissolution, liquidation or winding-up of the Company,
the Company shall deliver notice to the Holders as promptly as possible, but in any event at least 15 calendar days prior to the
earlier of (i) the date on which such dissolution, liquidation or winding-up, as the case may be, is expected to become effective
or occur, and (ii) the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such dissolution, liquidation or winding-up, as the case may be,
which notice shall state the expected effective date and record date for such event, as applicable, and the amount and kind of
property that a holder of one share of the Common Stock is expected to be entitled, or may elect, to receive in such event. The
Company shall deliver an additional notice to holders, as promptly as practicable, whenever the expected effective date or record
date, as applicable, or the amount and kind of property that a holder of one share of the Common Stock is expect to be entitled
to receive in such event, changes.


 


(b)          Notices
After Certain Actions and Events. Whenever an adjustment to the Conversion Rate becomes effective pursuant to Sections 4.04,
4.05 or 4.06, the Company will (i) file with the Trustee an Officer’s Certificate stating that such adjustment has become
effective, the Conversion Rate, and the manner in which the adjustment was computed and (ii) deliver written notice to the
Holders stating that such adjustment has become effective and the Conversion Rate or conversion privilege as adjusted. Failure
to give any such notice, or any defect therein, shall not affect the validity of any such adjustment.


 


ARTICLE
5.

COVENANTS


 


Section
5.01         Payment of Principal and Interest, the Fundamental Change Purchase
Price and Redemption Price.


 


The Company covenants and agrees that it
will cause to be paid the principal of (including the Fundamental Change Purchase Price or Redemption Price, if applicable), premium,
if any, on and accrued and unpaid interest, if any, on each of the Notes at the places, at the respective times and in the manner
provided herein and in the Notes.


 


Section
5.02         Maintenance of Office or Agency.


 


The Company will maintain in the continental
United States an office of the Paying Agent, an office of the Registrar and an office or agency where Notes may be surrendered
for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes
and this Indenture (other than the type contemplated by Section 12.14) may be served. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made at the Corporate Trust Office or the office or agency of the Trustee.


 




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


 


The Company hereby initially designates
the Trustee as the Paying Agent, Registrar, Conversion Agent, and its Corporate Trust Office shall be considered as one such office
or agency of the Company for each of the aforesaid purposes. The Company or its Affiliates may act as Paying Agent or Registrar.


 


With respect to any Global Note, the Corporate
Trust Office of the Trustee or any Paying Agent shall be the place of payment where such Global Note may be presented or surrendered
for payment or conversion or for registration of transfer or exchange, or where successor Notes may be delivered in exchange therefor;
provided, however, that any such payment, conversion, presentation, surrender or delivery effected pursuant to the
Applicable Procedures for such Global Note shall be deemed to have been effected at the place of payment for such Global Note in
accordance with the provisions of this Indenture.


 


Section
5.03         Provisions as to Paying Agent.


 


(a)          If
the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying Agent to execute and deliver
to the Trustee an instrument in which such agent shall agree, subject to the provisions of this Section 5.03:


 


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


 


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


 


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


 




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The Company shall, on or before each due
date of the principal of, any premium on, accrued and unpaid interest, if any, on, Fundamental Change Purchase Price and Redemption
Price for the Notes, deposit with the Paying Agent a sum sufficient to pay such principal, premium, accrued and unpaid interest,
Fundamental Change Purchase Price or Redemption Price, as the case may be, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee in writing of any failure to take such action, provided that, if such deposit is made on the due
date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.


 


(b)          If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal of, any premium on, accrued
and unpaid interest, if any, on, Fundamental Change Purchase Price or Redemption Price for the Notes, set aside, segregate and
hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal, any premium, accrued and unpaid
interest, if any, Fundamental Change Purchase Price or Redemption Price, as the case may be, so becoming due and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal
of, premium on, accrued and unpaid interest on, Fundamental Change Purchase Price or Redemption Price for the Notes when the same
shall become due and payable.


 


(c)          Anything
in this Section 5.03 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by any
Paying Agent hereunder as required by this Section 5.03, such sums to be held by the Trustee upon the trusts herein contained
and upon such payment by the any Paying Agent to the Trustee, such Paying Agent (if other than the Company) shall be released from
all further liability with respect to such sums.


 


(d)          Subject
to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company,
in trust for the payment of the principal of, any premium on, accrued and unpaid interest, if any, on, Fundamental Change Purchase
Price or Redemption Price for any Note and remaining unclaimed for two years after such principal, premium, accrued and unpaid
interest, Fundamental Change Purchase Price or Redemption Price has become due and payable shall be paid to the Company on written
request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that before the Trustee or such Paying Agent are required to make
any such repayment, the Company shall cause to be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The Borough of Manhattan, The City of New York, New York, notice that
such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 calendar days from the date
of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.


 




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Section
5.04         Reports.


 


As long as any Notes are outstanding, the
Company shall (i) file with the Commission within the time periods prescribed by its rules and regulations and (ii) furnish to
the Trustee and the Holders within 15 calendar days after it is required to file the same with the Commission pursuant to its rules
and regulations (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act), all quarterly and annual financial
information required to be contained in Forms 10-Q and 10-K and, with respect to the annual consolidated financial statements only,
a report thereon by the Company’s independent auditors. The Company shall not be required to file any report or other information
with the Commission if the Commission does not permit such filing, although such reports will be required to be furnished to the
Trustee. Any such report, information or document that the Company files with the Commission through the EDGAR system (or any successor
thereto) will be deemed to be delivered to the Trustee and the Holders for the purposes of this Section 5.04 at the time of
such filing through the EDGAR system (or such successor thereto).


 


At any time the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will, so long as any of the Notes or the shares of Common Stock delivered
upon conversion of the Notes will, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act, promptly provide to the Trustee and will, upon written request, provide to any Holder, beneficial owner
or prospective purchaser of such Notes or such shares of Common Stock the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act to facilitate the resale of such Notes or such shares of Common Stock pursuant to Rule 144A
under the Securities Act.  The Company will take such further action as any Holder or beneficial owner of such Notes or any
holder or beneficial owner of such shares of Common Stock may reasonably request from time to time to enable such Holder or beneficial
owner to sell such Notes or such holder or beneficial owner to sell shares of Common Stock in accordance with Rule 144A under the
Securities Act, as such rule may be amended from time to time.


 


Delivery of any such reports, information
and documents to the Trustee shall be for informational purposes only, and the Trustee’s receipt of such reports, information
and documents shall not constitute actual or constructive notice of any information contained therein or determinable from information
contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officer’s Certificates) or any other agreement or document.


 


Section
5.05         Statements as to Defaults.


 


The Company is required to deliver to the
Trustee (i) within 120 days after the end of each fiscal year ending December 31, an Officer's Certificate stating whether or not
the signers thereof know of any default of the Company that occurred during the previous year and whether the Company, to the Officer’s
knowledge, is in default in the performance or observance of any of the terms, provisions and conditions of this Indenture and
(ii) within 30 days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any events that
would constitute Defaults or Events of Default, setting forth the details of such Defaults or Events of Default, their status and
the action the Company is taking or proposes to take in respect thereof. Such Officer’s Certificate shall also comply with
any additional requirements set forth in Section 5.07. The Trustee shall not be deemed to have notice of any Default or Event
of Default except in accordance with Section 11.02(i).


 




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Section
5.06         Additional Interest Notice.


 


If Additional Interest is payable by the
Company pursuant to Section 5.08 or Section 6.03, the Company shall deliver to the Trustee and the Paying Agent an Officer’s
Certificate, prior to the Regular Record Date for each applicable Interest Payment Date, to that effect stating (a) the amount
of such Additional Interest that is payable and (b) the date on which such interest is payable. Unless and until a Responsible
Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume without inquiry that no
such Additional Interest is payable. The Trustee shall have no obligation to calculate or determine, or verify the Company's calculations
or determinations of, the amount of any Additional Interest payable by the Company under this Indenture. If the Company has paid
Additional Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate
setting forth the particulars of such payment.


 


Section
5.07         Compliance Certificate and Opinions of Counsel.


 


(a)          Except
as otherwise expressly provided in this Indenture, upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with; provided
that no Opinion of Counsel shall be required to be delivered in connection with the issuance of the Initial Notes on the date hereof.


 


(b)          Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:


 


(i)          a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;


 


(ii)         a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;


 


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


 


(iv)        a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.


 




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(c)          All
applications, requests, certificates, statements or other instruments given under this Indenture shall be without personal recourse
to any individual giving the same and may include an express statement to such effect.


 


Section
5.08         Additional Interest.


 


(a)          If,
at any time during the six-month period beginning on, and including, the date which is six months after the Last Original Issuance
Date, the Company fails to timely file any periodic report that the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other
than current reports on Form 8-K), or the Notes are not otherwise Freely Tradable, including pursuant to Rule 144 under the Securities
Act, by Holders other than affiliates (within the meaning of Rule 144) of the Company or Holders that were affiliates (within the
meaning of Rule 144) of the Company during the 90 days immediately preceding the date of the proposed transfer (as a result of
restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes), the Company shall pay Additional Interest
that will accrue on the Notes at the rate of 0.50% per annum of the principal amount of Notes then Outstanding for each day during
such period for which the Company’s failure to file has occurred and is continuing or for which the restrictions on transfer
are applicable; provided that such six-month period shall end on the date that is one year from the Last Original Issuance
Date.


 


(b)          Further,
if, and for so long as, the Restricted Notes Legend has not been removed from the Notes, the Notes are assigned a restricted CUSIP
number or the Notes are not otherwise Freely Tradable by Holders other than affiliates (within the meaning of Rule 144) of the
Company or Holders that were affiliates (within the meaning of Rule 144) of the Company during the 90 days immediately preceding
the date of the proposed transfer (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the
Notes) as of the 375th day after the Last Original Issuance Date, the Company will pay Additional Interest on the Notes that will
accrue on the Notes at the rate of 0.50% per annum of the principal amount of Notes then Outstanding until such Restricted Notes
Legend is removed, the Notes are assigned an unrestricted CUSIP number and the Notes are Freely Tradable.


 


(c)          Such
Additional Interest that is payable under this Section 5.08 shall be payable in arrears on each Interest Payment Date following
accrual in the same manner as regular interest on the Notes and will be separate and distinct from, and in addition to, any Additional
Interest that may accrue pursuant to Section 6.03, subject to the limitations on the maximum annual rate of Additional Interest
set forth in Section 6.03(d).


 


(d)          In
no event shall Additional Interest accruing pursuant to this Section 5.08 accrue on any day under the terms of this Indenture
(taking any such Additional Interest pursuant to this Section 5.08 together with any Additional Interest pursuant to Sections 6.03(a)
and 6.03(c)) at an annual rate in excess of 0.50% for any violation or Default caused by the Company’s failure to be current
in respect of its Exchange Act reporting obligations.


 




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Section
5.09         Corporate Existence.


 


Subject to Article 9, the Company will
do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter
and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise
if, in the judgment of the Company, the preservation thereof is no longer desirable in the conduct of the business of the Company.


 


Section
5.10         Restriction on Resales.


 


The Company shall not, and shall procure
that no “affiliate” (as defined under Rule 144) of the Company shall, resell any of the Notes that have been reacquired
by the Company or any such “affiliate” (as defined under Rule 144).


 


Section
5.11         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 purposes of this Indenture.


 


Section
5.12         Par Value Limitation.


 


The Company shall not take any action that,
after giving effect to any adjustment pursuant to Article 4, would result in the issuance of shares of Common Stock for less
than the par value of such shares of Common Stock.


 


Section
5.13         Company to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish or cause to be
furnished to the Trustee:


 


(a)          semi-annually,
not later than the 10th day after each Regular Record Date, a list, in such form as the Trustee may reasonably require, containing
all the information in the possession or control of the Company, or any of its Paying Agents other than the Trustee, of the names
and addresses of the Holders, as of such preceding Regular Record Date, and


 


(b)          at
such other times as the Trustee may request in writing, within 15 days after the receipt by the Company of any such request,
a list of similar form and content as of a date the Trustee may reasonably require.


 




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ARTICLE
6.

REMEDIES


 


Section
6.01         Events of Default.


 


Each of the following events shall be an
“Event of Default”:


 


(a)          the
Company’s failure to pay the principal of or any premium, if any, on any Note when due and payable on the Maturity Date,
upon declaration of acceleration or otherwise;


 


(b)          the
Company’s failure to comply with its obligations under Article 4 to pay or deliver the Settlement Amount owing upon conversion
of any Note (including any Additional Shares or cash in lieu thereof) within five calendar days;


 


(c)          the
Company’s failure to pay any interest on any Note when due, and such failure continues for a period of 30 days;


 


(d)          the
Company's failure to pay the Fundamental Change Purchase Price or the Redemption Price of any Note when due;


 


(e)          the
Company’s failure to issue a Fundamental Change Company Notice in accordance with the provisions of Section 3.02(a),
notice of a Make-Whole Fundamental Change in accordance with the provisions of Section 4.06(d), Redemption Notice in accordance
with the provisions of Section 10.02 or notice of a distribution in accordance with the provisions of Section 4.01(b)(iii);


 


(f)          the
Company’s failure to perform any other covenant required by the Company in this Indenture (other than a covenant or agreement
a default in whose performance or whose breach is specifically addressed in Sections 6.01(a) through (e) above) and such failure
continues for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes then
Outstanding (a copy of which notice, if given by Holders, must also to be given to the Trustee) has been received by the Company;


 


(g)          any
indebtedness for money borrowed by, or any other payment obligation of, the Company or any of its Subsidiaries that is a Significant
Subsidiary of the Company (or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary of the
Company), in an outstanding principal amount, individually or in the aggregate, in excess of $5.0 million (or its foreign currency
equivalent at the time) (i) is not paid at final maturity, upon required repurchase, upon redemption or when otherwise due (except
upon acceleration that does not result from such a failure to pay) or (ii) is accelerated or otherwise is declared due and payable,
unless, in the case of this clause (ii), such indebtedness is discharged or the acceleration is cured, waived or rescinded within
30 days of the date on which such indebtedness was accelerated or was declared due and payable;


 


(h)          the
Company or any of its Subsidiaries that is a Significant Subsidiary of the Company (or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary of the Company), fails to pay one or more final and non-appealable judgments entered
by a court or courts of competent jurisdiction, the aggregate uninsured or unbonded portion of which is in excess of $5.0 million,
provided that, no Event of Default will be deemed to occur under this clause (h) if such judgments are paid, discharged
or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or
(ii) the date on which all rights to appeal have been extinguished;


 




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(i)          the
Company or any of its Significant Subsidiaries (or any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary of the Company) (i) commences a voluntary case or other proceeding seeking the liquidation, reorganization or other
relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect; (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of the Company or such Significant Subsidiary of the Company or any substantial part of the Company’s or such Significant
Subsidiary of the Company’s property, (iii) consents to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced against it, (iv) makes a general assignment for the benefit
of creditors, or (v) fails generally to pay its debts as they become due; or


 


(j)          an
involuntary case or other proceeding is commenced against the Company or any of its Significant Subsidiaries (or any group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary of the Company) (i) seeking liquidation, reorganization or other
relief with respect to the Company or such Significant Subsidiary of the Company or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or (ii) seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or such Significant Subsidiary of the Company or any substantial part of its property, and
such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 consecutive days.


 


Section
6.02         Acceleration; Rescission and Annulment.


 


(a)          If
an Event of Default (other than an Event of Default specified in Section 6.01(i) or Section 6.01(j) with respect to the
Company) occurs and is continuing, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes
then Outstanding may declare 100% of the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Notes
then Outstanding to be due and payable immediately. If an Event of Default specified in Section 6.01(i) or Section 6.01(j)
with respect to the Company occurs, 100% of the principal of, premium, if any, and accrued and unpaid interest, if any, on all
Notes shall automatically become immediately due and payable.


 


(b)          Notwithstanding
anything to the contrary in Section 6.02(a), Section 6.04 or any other provision of this Indenture, if, at any time after the principal
of, and accrued and unpaid interest, if any, on, the Notes shall have been so declared due and payable in accordance with Section
6.02(a), and before any judgment or decree of a court of competent jurisdiction for the payment of the monies due shall have been
obtained, and each of the conditions set forth in the immediately following clauses (i), (ii) and (iii) is satisfied:


 




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(i)          the
Company delivers or deposits with the Trustee the amount of cash sufficient to pay all matured installments of principal and interest
upon all the Notes, and the principal of and accrued and unpaid interest, if any, on all Notes which shall have become due otherwise
than by acceleration (with interest on such principal and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the rate or rates, if any, specified in the Notes to the date of such payment or deposit),
and such amount as shall be sufficient to pay the Trustee its compensation and reimburse the Trustee for its reasonable expenses,
disbursements and advances (including the fees and expenses of its agents and counsel);


 


(ii)         rescission
and annulment would not conflict with any judgment or decree of a court of competent jurisdiction; and


 


(iii)        any
and all Events of Default under this Indenture, other than the non-payment of the principal of the Notes that became due because
of the acceleration, shall have been cured, waived or otherwise remedied as provided herein,


 


then, the Holders of a majority of the aggregate principal amount
of Notes then Outstanding, by written notice to the Company and to the Trustee, may waive all Defaults and Events of Default with
respect to the Notes (except for any Default or Event of Default arising from (a) the Company’s failure to pay principal
(including the Fundamental Change Purchase Price or Redemption Price) of, or any interest on, any Notes), (b) the Company’s
failure to pay or deliver the Settlement Amounts due upon conversion of any Note within the applicable time period set forth under
Section 4.03(a) or (c) the Company’s failure to comply with any provision of this Indenture the modification of which would
require the consent of the Holder of each Outstanding Note affected) and may rescind and annul the declaration of acceleration
resulting from such Defaults or Events of Default (except for any Default or Event of Default arising from (x) the Company’s
failure to pay principal (including the Fundamental Change Purchase Price or Redemption Price) of, or any interest on, any Notes),
(y) the Company’s failure to pay or deliver the Settlement Amounts due upon conversion of any Note within the applicable
time period set forth under Section 4.03(a) or (z) the Company’s failure to comply with any provision of this Indenture the
modification of which would require the consent of the Holder of each Outstanding Note affected) and their consequences; provided,
that no such rescission or annulment will extend to or will affect any subsequent Default or Event of Default or shall impair any
right consequent on such Default or Event of Default.


 


Section
6.03         Additional Interest.


 


(a)          Notwithstanding
Section 6.02, to the extent the Company elects, the sole remedy for an Event of Default under Section 6.01(f) relating
to the Company’s failure to comply with Section 5.04 (such Event of Default, a “Reporting Event of Default”),
will, for the 180 days after the occurrence of such Reporting Event of Default, consist exclusively of the right to receive Additional
Interest at an annual rate equal to (i) 0.25% per annum of the principal amount of the Notes then Outstanding commencing on the
date on which such a Reporting Event of Default first occurs and ending on the earlier of the date such Reporting Event of Default
is cured or waived or the 90th day following the occurrence of such Reporting Event of Default and (ii) 0.50% per annum of the
principal amount of such tranche of Notes outstanding commencing on the 91st day following the occurrence of such Reporting Event
of Default (if such Reporting Event of Default is continuing on such 91st day) and ending on the earlier of the date such Reporting
Event of Default is cured or waived or the 180th day following the occurrence of such Reporting Event of Default, in each case
payable in the same manner and on the same dates as the stated interest payable on the Notes.


 




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(b)          If
the Reporting Event of Default is continuing on the 181st day after the date on which such Reporting Event of Default occurred,
the Notes will be subject to acceleration as provided in Section 6.02(a).


 


(c)          In
order to elect to pay the Additional Interest as the sole remedy during the first 180 days after the occurrence of a Reporting
Event of Default, the Company must notify all Holders of Notes, the Trustee and the Paying Agent in writing of such election on
or before the Close of Business on the fifth Business Day prior to the date on which such Reporting Event of Default would otherwise
occur. Upon the Company’s failure to timely give such notice of such election or to pay the Additional Interest when due,
the Notes will be immediately subject to acceleration by declaration of the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes Outstanding as provided in Section 6.02. Nothing in this Section 6.03 shall affect the
rights of Holders of Notes in the event of the occurrence of any other Event of Default.


 


(d)          In
no event shall Additional Interest accruing pursuant to Sections 6.03(a) and 6.03(c) accrue on any day under the terms of
this Indenture (taking any such Additional Interest pursuant to Sections 6.03(a) and 6.03(c) together with any Additional Interest
pursuant to Section 5.08) at an annual rate in excess of 0.50% for any violation or Default caused by the Company’s failure
to be current in respect of its Exchange Act reporting obligations. Such Additional Interest will be payable in the same manner
and on the same dates as the stated interest payable on the Notes.


 


Section
6.04         Waiver of Past Defaults.


 


Subject to Section 6.02(b), the Holders
of not less than a majority of the aggregate principal amount of Notes then Outstanding, by written notice to the Company and to
the Trustee, may waive any Default or Event of Default (except for any Default or Event of Default arising from (a) the Company’s
failure to pay principal of, or any interest on, any Notes), (b) the Company’s failure to pay or deliver the Settlement Amounts
due upon conversion of any Note within the applicable time period set forth under Section 4.03(a), or (c) the Company’s failure
to comply with any provision of this Indenture the modification of which would require the consent of the Holder of each Outstanding
Note affected) and rescind any acceleration resulting from such Default or Event of Default and its consequences; provided,
that no such waiver will extend to or will affect any subsequent Default or Event of Default or shall impair any right consequent
on such Default or Event of Default.


 




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Section
6.05         Control by Majority.


 


The Trustee will not be obligated to exercise
any of its rights or powers at the request of the Holders unless such Holders have offered to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense. Subject to this Indenture, applicable law and the Trustee’s
indemnification, the Holders of a majority in aggregate principal amount of the Outstanding Notes may direct in writing the time,
method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Notes. The Trustee, however, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines is unduly prejudicial to the rights of any Holder.


 


Section
6.06         Limitation on Suits.


 


Subject to Section 6.07, no Holder
will have any right to institute any proceeding under this Indenture, or for the appointment of a receiver or Trustee, or for any
other remedy under this Indenture or with respect to the Notes unless:


 


(a)          the
Holder has previously delivered to the Trustee written notice of a continuing Event of Default;


 


(b)          the
Holders of at least 25% in aggregate principal amount of the then Outstanding Notes deliver to the Trustee a written request that
the Trustee pursue a remedy with respect to such Event of Default and have offered indemnity reasonably satisfactory to the Trustee
to institute such proceeding as Trustee;


 


(c)          the
Trustee has failed to institute a proceeding within 60 days after such notice, request and offer; and


 


(d)          the
Trustee has not received from the Holders of a majority in aggregate principal amount of the then Outstanding Notes a direction
inconsistent with such written request within 60 days after such notice, request and offer.


 


Section
6.07         Rights of Holders to Receive Payment and to Convert.


 


Notwithstanding anything to the contrary
elsewhere in this Indenture, the above limitations set forth under Section 6.06 do not apply to a suit instituted by a Holder for
the enforcement of a payment of the principal (including the Fundamental Change Purchase Price or Redemption Price, if applicable)
of, or any accrued and unpaid interest on, any Note, on or after the applicable due date or the right to convert the Note or to
receive the Settlement Amounts due upon conversion in accordance with Article 4, and such right to receive any such payment or
delivery, as the case may be, on or after the applicable due dates shall not be impaired or affected without the consent of such
Holder. Payments of the Fundamental Change Purchase Price, Redemption Price, principal and interest that are not made when due
will accrue interest per annum at the then-applicable interest rate from the required payment date.


 




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Section
6.08         Collection of Indebtedness; Suit for Enforcement by Trustee.


 


If an Event of Default specified in Section 6.01(a),
6.01(b), 6.01(c) or 6.01(d) 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, premium on, interest on, Fundamental Change Purchase
Price for, Redemption Price for and the Settlement Amounts due upon the conversion of the Notes and such further amount as is sufficient
to cover the costs and expenses of collection, including the compensation and reasonable expenses, disbursements and advances of
the Trustee, its agents and counsel, as well as any other amounts that may be due under Section 11.06.


 


Section
6.09         Trustee May Enforce Claims Without Possession of Notes.


 


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


 


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 compensation and reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 11.06. 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 11.06
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
is 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.


 


Section
6.11         Restoration of Rights and Remedies.


 


If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.


 




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Section
6.12         Rights and Remedies Cumulative.


 


Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.09, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.


 


Section
6.13         Delay or Omission Not a Waiver.


 


No delay or omission of the Trustee or of
any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 6 or by law to the
Trustee or to the Holders may be exercised from time to time and as often as may be deemed expedient by the Trustee (subject to
the limitations contained in this Indenture) or by the Holders, as the case may be.


 


Section
6.14         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 11.06, including payment of all 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, premium on, accrued and unpaid interest on, the Fundamental Change Purchase Price for, the
Redemption Price for and any cash due upon 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 6.14. If the Trustee so fixes a record date and a payment date,
at least 15 calendar days prior to such record date, the Trustee will deliver to each Holder (at the Company's cost and expense)
a written notice, which notice will state such record date, such payment date and the amount of such payment.


 




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Section
6.15         Undertaking for Costs.


 


All parties to this Indenture agree, and
each Holder, by such Holder’s acceptance of a Note, shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section 6.15 shall not apply to (i) any suit instituted by the
Trustee, (ii) any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal
amount of the Notes then Outstanding, (iii) any suit instituted by any Holder for the enforcement of the payment of the principal
(including the Fundamental Change Purchase Price or Redemption Price) of, or any interest on, any Note on or after the applicable
due date expressed or provided for in this Indenture, (iv) any suit for the enforcement of the right to convert any Note or to
receive the Settlement Amounts due upon conversion of any Note in accordance with the provisions of Article 4, or (v) any suit
for the enforcement of the right of a beneficial owner to exchange its beneficial interest in a Global Note for a Physical Note
if an Event of Default has occurred and is continuing in accordance with Section 2.11.


 


Section
6.16         Waiver of 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.


 


Section
6.17         Notices from the Trustee.


 


If a Default occurs and is continuing and
is known to the Trustee, the Trustee must send notice of such Default to each Holder within 90 days after such Event of Default
has occurred. Except in the case of a Default in the payment of the principal of, premium, if any, or interest on any Note or of
a Default in the payment or delivery of the Settlement Amounts due upon conversion of any Note, the Trustee may withhold notice
if and so long as the Trustee in good faith determines that withholding notice is in the interests of the Holders.


 




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ARTICLE
7.

SATISFACTION AND DISCHARGE


 


Section
7.01         Discharge of Liability on Notes.


 


When (a) the Company shall deliver
to the Registrar for cancellation all Notes theretofore authenticated (other than any Notes that have been destroyed, lost or stolen
and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled,
or (b) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable
(whether on the Maturity Date, on any Fundamental Change Purchase Date, on any Redemption Date, upon conversion or otherwise) and
the Company shall deposit with the Trustee, in trust, or deliver to the Holders, as applicable, an amount of cash (and, to the
extent applicable, deliver to the Holders a number of shares of Common Stock to satisfy the Company’s obligations with respect
to outstanding conversions), sufficient to pay all amounts due on all of such Notes (other than any Notes that shall have been
mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and interest due, accompanied,
except in the event the Notes are due and payable solely in cash at the Maturity Date or upon an earlier Fundamental Change Purchase
Date or Redemption Date, by a verification report as to the sufficiency of the deposited amount from an independent certified accountant
or other financial professional reasonably satisfactory to the Trustee, and the Company shall have paid or caused to be paid all
other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect (except as to (i) rights
hereunder of Holders to receive all amounts owing upon the Notes and the other rights, duties and obligations of Holders, as beneficiaries
hereof with respect to the amounts, if any, so deposited with the Trustee and (ii) the rights, obligations, indemnities and
immunities of the Trustee hereunder and the obligations of the Company in respect thereof), and the Trustee, on written demand
of the Company accompanied by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Company,
shall execute instruments acknowledging satisfaction and discharge of this Indenture. Notwithstanding the foregoing, the Company
hereby agrees to reimburse the Trustee for any costs or expenses thereafter incurred by the Trustee, including the reasonable fees
and expenses of its counsel, and to compensate the Trustee for any services thereafter rendered by the Trustee in connection with
this Indenture or the Notes.


 


Section
7.02         Deposited Monies to Be Held in Trust by Trustee.


 


Subject to Section 7.04, all monies
deposited with the Trustee pursuant to Section 7.01 shall be held in trust for the sole benefit of the Holders of the Notes,
and such monies and shall be applied by the Trustee to the payment, either directly or through any Paying Agent (including the
Company if acting as its own Paying Agent), to the Holders of the particular Notes for the payment of all sums or amounts due and
to become due thereon for principal and interest, if any.


 


Section
7.03         Paying Agent to Repay Monies Held.


 


Upon the satisfaction and discharge of this
Indenture, all excess monies then held by any Paying Agent (if other than the Trustee) shall, upon written request of the Company,
be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect
to such amounts.


 


Section
7.04         Return of Unclaimed Monies.


 


Subject to the requirements of applicable
law, any monies deposited with or paid to the Trustee for payment of the principal of or interest, if any, on the Notes and not
applied but remaining unclaimed by the Holders of the Notes for two (2) years after the date upon which the principal of or
interest, if any, on such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee
on written demand, and all liability of the Trustee shall thereupon cease with respect to such monies; and the Holders shall thereafter
look only to the Company for any payment that such Holder may be entitled to collect unless an applicable abandoned property law
designates another person.


 




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Section
7.05       Reinstatement.


 


If the Trustee or the Paying Agent is unable
to apply any monies in accordance with Section 7.02 by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.01 until such time as the Trustee
or the Paying Agent is permitted to apply all such amounts in accordance with Section 7.02; provided, however,
that if the Company makes any payment of interest on, principal of or delivery in respect of any Note following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the
monies held by the Trustee or Paying Agent.


 


ARTICLE
8.


SUPPLEMENTAL
INDENTURES


 


Section
8.01       Supplemental Indentures Without Consent of Holders.


 


Without the consent of any Holder, the Company
(when authorized by a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:


 


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


 


(b)        to
evidence the succession by a Successor Company and to provide for the assumption by a Successor Company of the Company’s
obligations under this Indenture;


 


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


 


(d)       to
secure the Notes;


 


(e)        to
add to the Company’s covenants such further covenants, restrictions or conditions for the benefit of the Holders or surrender
any right or power conferred upon the Company by this Indenture;


 


(f)        to
make any change that does not adversely affect the rights of any Holder;


 


(g)       to
conform the terms of this Indenture or the Notes to the description thereof in the Preliminary Offering Memorandum, as supplemented
by the pricing term sheet related to the offering of the Initial Notes as evidenced by an Officer’s Certificate from the
Company to the Trustee; or


 




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(h)        upon
the occurrence of an event described in Section 4.07(a), solely (i) to provide that such Notes are convertible into Reference Property,
subject to the provisions in Sections 4.03 and 4.07, and (ii) to effect the related changes to the terms of such Notes under Section
4.07.


 


Section
8.02       Supplemental Indentures With Consent of Holders.


 


With the consent of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes (including, without limitation, consents obtained in connection
with a purchase of, or tender or exchange offer for, Notes) and by Act of said Holders delivered to the Company and the Trustee,
the Company, and the Trustee may amend the Notes or enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture, and the Holder of a majority in aggregate principal amount of the Outstanding
Notes may waive the Company’s compliance with any provision herein without notice to the other Holders; provided,
however, that no such amendment, supplement or waiver shall, without the consent of the Holder of each Outstanding Note
affected thereby:


 


(a)        change
the stated Maturity Date of the principal of or any interest on the Notes;


 


(b)        reduce
the principal amount of or interest on the Notes;


 


(c)        reduce
the amount of principal payable upon acceleration of the Maturity Date of any Note;


 


(d)        change
the place or currency of payment of principal of or interest on any Note;


 


(e)        impair
the right of any Holder to receive payment of principal of and interest on its Notes on or after the due dates therefor or to institute
suit for the enforcement of any payment on, or with respect to, such Holder’s Notes;


 


(f)         modify
the provisions with respect to the purchase rights of Holders as described in Section 3.01 in a manner adverse to Holders or the
provisions with respect to redemption rights of the Company as described under Article 10;


 


(g)        modify
the ranking provisions of this Indenture;


 


(h)        make
any change that impairs or adversely affects the right of Holders to convert their Notes; or


 


(i)         make
any change to the provisions of this Article 8 which require each Holder’s consent or in the waiver provisions in Section 6.04
of this Indenture except to increase the percentage required for modification, amendment or waiver or to provide for consent of
each affected Holder of Outstanding Notes.


 




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It shall not be necessary for any Act or
consent of Holders under this Section 8.02 to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act or consent shall approve the substance thereof.


 


Section
8.03       Notice of Amendment or Supplement.


 


After an amendment or supplement under this
Article 8 becomes effective, the Company shall provide to the Holders a written notice briefly describing such amendment or supplement.
However, the failure to give such notice to all the Holders, or any defect in the notice, shall not impair or affect the validity
of the amendment or supplement.


 


Section
8.04       Trustee to Sign Amendments, Etc.


 


The Trustee shall sign any amendment or
supplement authorized pursuant to this Article 8 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment
or supplement, the Trustee shall receive, and shall be fully protected in conclusively relying upon, an Officer’s Certificate
and an Opinion of Counsel provided at the expense of the Company providing that such amendment or supplement is authorized or permitted
by this Indenture and such amendment or supplement is a legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms.


 


ARTICLE
9.


SUCCESSOR
COMPANY


 


Section
9.01       Company May Consolidate, Etc. on Certain Terms.


 


Subject to the provisions of Section 9.03,
the Company shall not consolidate with, enter into a binding share exchange with, or merge with or into, another Person or sell,
assign, convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to another Person,
unless:


 


(a)        the
resulting, surviving transferee or successor Person (the “Successor Company”), if not the Company, is a corporation
organized and existing under the laws of the U.S., any state of the U.S. or the District of Columbia and the Successor Company
expressly assumes, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of
the obligations of the Company under the Notes and this Indenture;


 


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


 


(c)       all
other conditions specified in this Article 9 are met.


 




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Upon any such consolidation, merger, binding
share exchange, sale, assignment, conveyance, transfer, lease or other disposition to another Person, the Successor Company (if
not the Company) shall succeed to, and may exercise every right and power of the Company under this Indenture.


 


Section
9.02      Successor Corporation to Be Substituted.


 


In case of any such consolidation, merger,
binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition to another Person and upon the assumption
by the Successor Company (if other than the Company), by supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and premium (including any Fundamental Change Purchase
Price or Redemption Price), if any, and accrued and unpaid interest, if any, on all of the Notes, the due and punctual payment
or delivery of any Settlement Amount due upon conversion of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company under this Indenture, such Successor Company shall 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 it
had been named herein as the party of the first part; provided, however, that in the case of a sale, assignment,
conveyance, transfer, lease or other disposition to one or more of its Subsidiaries of all or substantially all of the properties
and assets of the Company, the Notes will remain convertible based on the Settlement Amount, in accordance with Section 4.03,
but subject to adjustment (if any) in accordance with Section 4.06. Such Successor Company thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of
the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate
and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by
the Officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as
though all of such Notes had been issued at the date of the execution hereof. In the event of such consolidation, merger, binding
share exchange, sale, assignment, conveyance, transfer or other disposition to another Person (but not in the case of a lease),
the Person named as the “Company” in the first paragraph of this Indenture or any successor that shall thereafter have
become such in the manner prescribed in this Article 9 may be dissolved, wound up and liquidated at any time thereafter and, except
in the case of a lease, such Person shall be released from its liabilities as obligor and maker of the Notes and from its obligations
under this Indenture.


 


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








 




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Section
9.03      Officer’s Certificate and Opinion of Counsel to Be Given to Trustee.


  


In the case of any such consolidation, merger,
binding share exchange, sale, assignment, conveyance, transfer, lease or other disposition pursuant to Section 9.01, the Trustee
shall receive an Officer’s Certificate and an Opinion of Counsel stating that any such consolidation, merger, binding share
exchange, sale, assignment, conveyance, transfer, lease or other disposition and any such assumption and, if a supplemental indenture
is required in connection with such transaction, such supplemental indenture, complies with the provisions of this Indenture and
an Opinion of Counsel stating that any such supplemental indenture is the valid, binding and enforceable obligation of the Successor
Company.


 


ARTICLE
10.


Optional
REDEMPTION


 


Section
10.01     Redemption.


 


The Company shall not be permitted to redeem
the Notes prior to December 19, 2017, and no sinking fund is provided for the Notes. On or after December 19, 2017, the Company
may from time to time redeem (an “Optional Redemption”) any or all of the Notes, except for any Notes that the
Company is required to purchase pursuant to Article 3, in cash at a redemption price equal to 100% of the principal amount of the
Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date (the “Redemption
Price”) (unless the Redemption Date falls after a Regular Record Date but on or prior to the related Interest Payment
Date, in which case the Company shall not pay accrued and unpaid interest to the Holder of the Notes being redeemed, and will instead
pay the full amount of accrued and unpaid Interest to the Holder of record as of the Close of Business on such Regular Record Date);
provided, that the Notes shall only be redeemable pursuant to this Article 10 if the Closing Sale Price of the Common Stock
for at least 20 Trading Days (whether or not consecutive) during the 30 consecutive Trading-Day period ending on the Trading Day
immediately preceding the date on which the Company provides a Redemption Notice exceeds 150% of the Conversion Price on each applicable
Trading Day.


 


Section
10.02     Notice of Optional Redemption.


 


(a)        In
case the Company exercises its Optional Redemption right to redeem all or, as the case may be, any part of the Notes pursuant to
Section 10.01, (i) the Company shall fix a date for redemption which must be a Business Day (each, a “Redemption Date”),
and (ii) the Company shall send a written notice of such Optional Redemption (a “Redemption Notice”) to the
Holders of Notes at their addresses set forth in the Register (or, in the case of Global Notes, send in accordance with the Applicable
Procedures), the Trustee and the Conversion Agent not more than 60 calendar days but not less than 30 calendar days prior to the
Redemption Date (the date on which such Redemption Notice is delivered, the “Redemption Notice Date”).


 


(b)       Each
Redemption Notice shall specify:


 


(i)          the
Redemption Date;


 


(ii)         the
Redemption Price;


 




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(iii)        that
Holders may surrender their Notes for conversion upon satisfaction of the requirements set forth in this Indenture;


 


(iv)        the
Conversion Rate and, if applicable, the number of Additional Shares under Section 4.06;


 


(v)         the
time at which the Holders’ right to convert the Notes called for redemption will expire, which will be the Close of Business
on the Business Day immediately preceding the Redemption Date;


 


(vi)        the
aggregate principal amount of Notes to be redeemed, and whether less than all of the Outstanding Notes are to be redeemed;


 


(vii)       the
procedures a converting Holder must follow to convert its Notes;


 


(viii)      that
on the Redemption Date, the Redemption Price will become due and payable upon each such Note, and unless the Company defaults on
the payment of the Redemption Price that interest thereon, if any, shall cease to accrue on and after said date;


 


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


 


(x)          the
CUSIP, ISIN or other similar numbers, if any, assigned to such Notes.


 


(c)        Substantially
concurrently with providing such Redemption Notices, the Company shall issue a press release containing the information set forth
in this Section and publish such information on the Company’s website or through such other public medium as the Company
may use at that time. If less than all of the Outstanding Notes are to be redeemed, and the Notes are Global Notes, the Notes to
be redeemed will be selected by the Depositary in accordance with the Applicable Procedures. If the Notes to be redeemed are not
Global Notes, the Trustee shall select the Notes to be redeemed in principal amounts of $1,000 or an integral multiple of $1,000
in excess thereof by lot, pro rata or by another method the Trustee considers fair and appropriate in accordance with its customary
procedures and, if applicable, the Applicable Procedures. If a portion of a Holder’s Notes are selected for redemption and
such Holder converts a portion of its Notes, such converted portion will be deemed to be of the portion selected for redemption.


 


Section
10.03     Restrictions on Redemption.


 


Notwithstanding anything to the contrary
herein, the Company may not redeem any Notes if it has failed to pay any interest due on the notes and such failure to pay is continuing,
or if the principal amount of the Notes has been accelerated (except in the case of an acceleration resulting from a Default by
the Company in the payment of the Redemption Price with respect to such Notes) and such acceleration has not been rescinded, in
either case, on or prior to the Redemption Date.


 




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Section
10.04     Payment of Notes Called for Redemption.


 


(a)        If
any Redemption Notice has been given in respect of the Notes in accordance with Section 10.02, the Notes shall become due and payable
on the Redemption Date at the place of payment and at the applicable Redemption Price. On presentation and surrender of the Notes
at the place of payment, the Notes shall be paid and redeemed by the Company at the applicable Redemption Price. In the case of
any redemption in part, the Company shall execute and the Trustee shall, upon receipt of an Officer’s Certificate and Company
Order, authenticate and deliver to or upon the written order of the Holder of the Note so surrendered, without charge to such Holder,
a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unredeemed portion of the Note so
surrendered.


 


(b)       Prior
to 11:00 a.m., New York City time, on the Redemption Date, the Company shall deposit with the Paying Agent (or, if the Company
or a Subsidiary or an Affiliate of either of them is acting as the Paying Agent, shall segregate and hold in trust as provided
herein) an amount of cash (in immediately available funds if deposited on the Redemption Date) sufficient to pay the Redemption
Price of all of the Notes to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for
any Note to be redeemed shall be made on the Redemption Date for such Note or, if later, at the time of presentation of such Note
to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by this Section 10.04.
Commencing on the Redemption Date, if the Company has deposited, or has segregated and is holding in trust, such funds, the Notes
to be redeemed shall cease to accrue interest. The Paying Agent shall, promptly following such payment and upon written demand
by the Company, return to the Company any funds in excess of the Redemption Price.


 


ARTICLE
11.


THE
TRUSTEE


 


Section
11.01    Duties and Responsibilities of
Trustee.


 


(a)       The
Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee. In case an Event of Default has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree
of care in its exercise as a prudent person would use in the conduct of his or her own affairs.


 


(b)        Prior
to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred:


 




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


 


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


 


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


 


(i)          this
subsection (c) does not limit the effect of this Section 11.01;


 


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


 


(iii)        the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
written direction of the Holders of not less than a majority in principal amount of the Notes at the time Outstanding determined
as provided in Section 1.03 relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture;


 


(d)          Whether
or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section 11.01.


 


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


 


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


 




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(g)          None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers if there is reasonable
ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured
to it.


 


Section
11.02    Rights of the Trustee.


 


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


 


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


 


(c)       The
Trustee may consult with counsel of its own selection and any advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel.


 


(d)       The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this Indenture (including upon the occurrence and during the continuance
of an Event of Default), unless such Holders shall have offered to the Trustee indemnity or security satisfactory to the Trustee
against any loss, expenses and liabilities which may be incurred therein or thereby.


 


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


 


(f)        The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
by it with due care hereunder.


 




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(g)       The
Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.


 


(h)       In
no event shall the Trustee be responsible or liable for special, indirect, consequential or punitive 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.


 


(i)        The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and the Indenture.


 


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


 


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


 


(l)        The
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture.


 


Section
11.03     Trustee’s Disclaimer.


 


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


 


Section
11.04    Trustee or Agents May Own Notes.


 


The Trustee or any Agent, in its individual
or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not Trustee or Agent.





 




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Section 11.05    Monies
to be Held in Trust.


 


Subject to the provisions of Section 7.02,
all monies and properties received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on or the investment of any money received by it hereunder
except as may be agreed in writing from time to time by the Company and the Trustee.


 


Section
11.06    Compensation and Expenses of
Trustee.


 


The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder
in any capacity (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust)
as mutually agreed to from time to time in writing between the Company and the Trustee, and the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements
of its counsel and of all Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from
its own gross negligence or willful misconduct, as determined by a final order of a court of competent jurisdiction.


 


The Company also covenants to indemnify
each of the Trustee and the Agents (and their respective officers, directors and employees), in any capacity under this Indenture
and their respective agents for, and to hold each of them harmless from and against, any and all loss, liability, claim, damage,
cost or expense incurred without gross negligence or willful misconduct, as determined by a final order of a court of competent
jurisdiction on its own part and arising out of or in connection with the acceptance or administration of this trust and the performance
of its duties and/or the exercise of its rights hereunder or in any other capacity hereunder, including the costs and expenses
of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) of liability in the premises.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.


 


The obligations of the Company under this
Section 11.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances
shall be secured by a lien prior to that of the Notes upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Notes. The obligation of the Company under this Section 11.06
shall survive the payment of the Notes, the satisfaction and discharge of this Indenture and/or the resignation or removal of the
Trustee.


 


When the Trustee, any Agent, and any of
their respective agents incur expenses or render services after an Event of Default specified in Section 6.01(i) and 6.01(j) with
respect to the Company occurs, the expenses and the compensation for the services are intended to constitute expenses of administration
under any bankruptcy, insolvency or similar laws.





 




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Section
11.07    Officer’s Certificate as Evidence.


 


Subject to Section 11.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith on the part of the Trustee, be deemed to be conclusively proved and established by
an Officer’s Certificate delivered to the Trustee.


 


Section
11.08    Conflicting Interests of Trustee.


 


If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, this Indenture.


 


Section
11.09     Eligibility of Trustee.


 


There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000 (or if such Person is a member of a bank holding company system, its bank holding company shall have a
combined capital and surplus of at least $50,000,000). If such Person publishes reports of condition at least annually, pursuant
to law or to the requirements of any supervising or examining authority, then for the purposes of this Section 11.09 the combined
capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section
11.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.


 


Section
11.10    Resignation or Removal of Trustee.


 


(a)        The
Trustee may at any time resign by giving written notice of such resignation to the Company and to the Holders of Notes. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have accepted appointment thirty (30) days after such
notice of resignation is given to the Company and the Holders, the resigning Trustee may, upon ten (10) Business Days’ notice
to the Company and the Holders, appoint a successor identified in such notice or may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a successor trustee, or, if any Holder who has been a bona fide Holder of
a Note or Notes for at least six (6) months may, subject to the provisions of Section 6.15, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.


  




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


 


(i)          the
Trustee shall fail to comply with Section 11.08 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Note or Notes for at least six (6) months; or


 


(ii)         the
Trustee shall cease to be eligible in accordance with the provisions of Section 11.09 and shall fail to resign after written request
therefor by the Company or by any such Holder; or


 


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


 


then, in any such case, the Company
may remove the Trustee and appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 6.15, any Holder who has been a bona fide Holder of a Note or Notes for at least six (6) months may,
on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee; provided, however, that if no successor Trustee shall have been appointed and
have accepted appointment thirty (30) days after either the Company or the Holders has removed the Trustee, the Trustee so removed
may petition at the Company’s expense any court of competent jurisdiction for an appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.


 


(c)      The
Holders of a majority in aggregate principal amount of the Notes at the time Outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor trustee unless, within ten (10) days after notice to
the Company of such nomination, the Company objects thereto, in which case the Trustee so removed or any Holder, or if such Trustee
so removed or any Holder fails to act, the Company, upon the terms and conditions and otherwise as in Section 11.10(a) provided,
may petition any court of competent jurisdiction for an appointment of a successor trustee.


 


(d)       Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section
11.10 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 11.11.


  




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Section
11.11     Acceptance by Successor Trustee.


 


Any successor trustee appointed as provided
in Section 11.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of
its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amount then due it pursuant to
the provisions of Section 11.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers
of the trustee so ceasing to act. Upon request of any such successor trustee, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds held or collected by such trustee as such, except
for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions
of Section 11.06.


 


No successor trustee shall accept appointment
as provided in this Section 11.11 unless, at the time of such acceptance, such successor trustee shall be qualified under the provisions
of Section 11.08 and be eligible under the provisions of Section 11.09.


 


Upon acceptance of appointment by a successor
trustee as provided in this Section 11.11, the Company (or the former trustee, at the written direction of the Company) shall give
or cause to be given notice of the succession of such trustee hereunder to the Holders of Notes in accordance with Section 12.08(c).
If the Company fails to give such notice within ten (10) days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.


 


Section
11.12     Succession by Merger, Etc.


 


Any corporation into which the Trustee may
be merged or exchanged or with which it may be consolidated, or any corporation resulting from any merger, exchange or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business
of the Trustee (including any trust created by this Indenture), shall be the successor to the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties hereto, provided that in the case of any corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, such corporation shall be qualified under
the provisions of Section 11.08 and eligible under the provisions of Section 11.09.


 


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


 




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Section
11.13     Preferential Collection of Claims.


 


If and when the Trustee shall be or become
a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of the claims against the Company (or any such other obligor).


 


Section
11.14    Trustee’s Application for Instructions from the Company.


 


Any application by the Trustee for written
instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee
that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing
any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall
be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date specified in such application (which date shall
not be less than three (3) Business Days after the date any officer of the Company actually receives such application, unless any
such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date
in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the
action to be taken or omitted.


 


ARTICLE
12.


MISCELLANEOUS


 


Section
12.01    Effect on Successors and Assigns.


 


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.


 


Section
12.02    Governing Law.


 


This Indenture and the Notes, and any claim,
controversy or dispute arising under or related to this Indenture or the Notes, will be governed by, and construed in accordance
with, the laws of the State of New York, (without regard to the conflicts of laws provisions thereof other than Section 5-1401
of the General Obligations Law).


 


Section
12.03    No Note Interest Created.


 


Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation,
as now or hereafter enacted and in effect, in any jurisdiction.


 


Section
12.04    Trust Indenture Act.


 


If any provision hereof limits, qualifies
or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture
Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.


 




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Section
12.05     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 Agent or their successors hereunder or the Holders
of the Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture.


 


Section
12.06    Calculations.


 


Neither the Trustee nor any Agent shall
be responsible for making any calculation with respect to any matter under this Indenture or the Notes (including, for the avoidance
of doubt, the trading price of the Notes). Except as otherwise expressly provided in this Indenture, the Company and its designated
agents shall be responsible for making all calculations called for under this Indenture and the Notes. These calculations include,
but are not limited to, determinations of any Fundamental Change Purchase Price, Redemption Price, the Closing Sale Prices of the
Common Stock, accrued interest payable on the Notes, and Additional Interest payable on the Notes, the Conversion Rate, the Settlement
Amount and the amount of Additional Interest that may be payable by Company from time to time. The Company shall make all these
calculations in good faith and, absent manifest error, its calculations will be final and binding on Holders. The Company shall
provide a schedule of its calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and the Conversion
Agent and all other agents appointed by the Company herein are entitled to rely conclusively upon the accuracy of the Company’s
calculations without independent verification. The Trustee shall forward the Company’s calculations to any Holders upon the
written request of that Holder.


 


Whenever the Company is required to calculate
or make adjustments to the Conversion Rate, the Company will do so to the 1/10,000th of a share of Common Stock, rounding any additional
decimal places up or down in a commercially reasonable manner.


 


Section
12.07    Execution in Counterparts.


 


This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution
and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures
of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.





 




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Section
12.08     Notices.


 


(a)        Except
as otherwise provided herein, any request, demand, authorization, direction, notice, consent, election, waiver or Act of Holders
or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, the Company or
the Trustee shall be in writing and delivered in person or mailed by first class mail, postage prepaid, overnight courier or transmitted
by facsimile transmission or electronic transmission in PDF format as follows:



 


(i)          if
to the Trustee by any Holder or by the Company, at its Corporate Trust Office;


 


(ii)         if
to the Company by the Trustee or by any Holder, at the address of its principal office at IGI Laboratories, Inc., 105 Lincoln Avenue,
P.O. Box 687, Buena, NJ 08310, Attention: Jason Grenfell-Gardner, with a copy to Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo,
P.C., 666 Third Avenue, New York, NY 100017, Attention: Joel I. Papernik, Esq.


 


(b)      The
Company or the Trustee, by notice given to the other in the manner provided in this Section 12.08, may designate additional
or different addresses for subsequent notices or communications.


 


(c)       Notices
to Holders will be sent to the address of each Holder as it appears in the Register. Notices will be deemed to have been given
on the date of mailing or electronic transmission to such Holder. Whenever a notice is required to be given by the Company, such
notice may be given by the Trustee on the Company’s behalf. With respect to Global Notes, notice shall be sufficiently given
if given to the Depositary for the Notes (or its designee), pursuant to customary procedures of such Depositary (and the Company
will make any notices the Company is required to give to Holders available on the Company’s website).


 


(d)        Whenever
the Company is required to deliver notice to the Holders, the Company will, by the date it is required to deliver such notice to
the Holders, deliver a copy of such notice to the Trustee and the Agents. Notices to the Trustee shall be deemed given upon actual
receipt thereof.


 


(e)        In
respect of this Indenture, the Trustee, in each of its capacities, including without limitation as the Trustee, Registrar, Paying
Agent, Conversion Agent and Bid Solicitation Agent, shall not have any duty or obligation to verify or confirm that the Person
sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact,
a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of
the party purporting to send such electronic transmission; and the Trustee shall not have any liability for losses, liabilities,
costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions,
reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of
electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee,
including, without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications
or information, and the risk of interception and misuse by third parties.


 




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Section
12.09    No Recourse Against Others.


 


No director, officer, employee, incorporator
or stockholder of the Company shall have any liability for any obligations of the Company under the Notes, the Indenture or any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Note, waives and
releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.


 


Section
12.10    Tax Withholding.


 


Nothing herein shall preclude any tax withholding
required by law or regulation. Each Holder agrees, and each beneficial owner of an interest in a 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 the Holder or beneficial owner as a result of an adjustment to the Conversion Rate, the Company or other applicable
withholding agent may, at its option, set off such payments against payments of cash and shares of Common Stock on the Note (or,
in certain circumstances, against any payments on the Common Stock).


 


Section
12.11     Waiver of Jury Trial.


 


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 TRANSACTIONS CONTEMPLATED HEREBY.


 


Section
12.12     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 and in order to help fight the funding
of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity
that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide
the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot
Act.


 


Section
12.13     Force Majeure.


 


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


 




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Section
12.14     Submission to Jurisdiction.


 


(a)          The
Company hereby irrevocably consents to jurisdiction of the courts of the State of New York and the courts of the United States
of America located in the City of New York and the County of New York, over any suit, action or proceeding with respect to this
Indenture or the Notes or the transactions contemplated hereby. The Company waives any objection that it may have to the venue
of any suit, action or proceeding with respect to this Indenture or the Notes or the transactions contemplated hereby in the courts
of the State of New York or the courts of the United States of America, in each case, located in the City of New York and County
of New York, or that such suit, action or proceeding brought in the courts of the State of New York or the United States of America,
in each case, located in the City of New York and County of New York was brought in an inconvenient court and agrees not to plead
or claim the same. The Company hereby irrevocably appoints Corporation Service Company, 1180 Avenue of the Americas, Suite 210,
New York, NY 10036, as its authorized agent in the State of New York upon which process may be served in any such suit or proceedings,
and agrees that service of process upon such agent shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation
and appointment of such agent in full force and effect for the term of this Indenture. Nothing in this Indenture shall in any way
be deemed to limit the ability to serve any such writs, process or summonses in any other manner permitted by applicable law.


 


[Remainder of the page intentionally left
blank]


  




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


 


	 	IGI Laboratories, Inc.
	 	By:	/s/ Jenniffer Collins
	 	Name:	Jenniffer Collins
	 	Title:	Chief Financial Officer and Secretary
	 	 	 
	 	 	 
	 	Wilmington Trust, National Association, as Trustee
	 	By:	/s/ Michael H. Wass
	 	Name:	Michael H. Wass
	 	Title:	Assistant Vice President


 




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SCHEDULE A


 


 


The following table sets forth the number
of Additional Shares by which the Conversion Rate shall be increased pursuant to Section 4.06 based on the hypothetical Stock
Prices and the dates set forth below.


 


	 	 	Stock Price	 
	Effective Date	 	$	8.89	 	 	$	10.00	 	 	$	11.00	 	 	$	12.50	 	 	$	15.00	 	 	$	17.50	 	 	$	20.00	 	 	$	25.00	 	 	$	30.00	 	 	$	35.00	 	 	$	40.00	 	 	$	45.00	 	 	$	50.00	 	 	$	75.00	 
	December 16, 2014	 	 	23.9143	 	 	 	19.9099	 	 	 	16.5871	 	 	 	12.8881	 	 	 	8.8434	 	 	 	6.3121	 	 	 	4.6293	 	 	 	2.6155	 	 	 	1.5203	 	 	 	0.8778	 	 	 	0.4843	 	 	 	0.2383	 	 	 	0.0860	 	 	 	0.0000	 
	December 15, 2015	 	 	23.9143	 	 	 	20.0230	 	 	 	16.4674	 	 	 	12.5654	 	 	 	8.3942	 	 	 	5.8559	 	 	 	4.2107	 	 	 	2.3004	 	 	 	1.2963	 	 	 	0.7223	 	 	 	0.3781	 	 	 	0.1674	 	 	 	0.0427	 	 	 	0.0000	 
	December 15, 2016	 	 	23.9143	 	 	 	19.9250	 	 	 	16.0711	 	 	 	11.9260	 	 	 	7.6402	 	 	 	5.1426	 	 	 	3.5874	 	 	 	1.8662	 	 	 	1.0074	 	 	 	0.5341	 	 	 	0.2578	 	 	 	0.0931	 	 	 	0.0049	 	 	 	0.0000	 
	December 15, 2017	 	 	23.9143	 	 	 	19.2752	 	 	 	15.0492	 	 	 	10.6452	 	 	 	6.3390	 	 	 	4.0142	 	 	 	2.6682	 	 	 	1.2985	 	 	 	0.6684	 	 	 	0.3349	 	 	 	0.1429	 	 	 	0.0309	 	 	 	0.0000	 	 	 	0.0000	 
	December 15, 2018	 	 	23.9143	 	 	 	17.1885	 	 	 	12.4559	 	 	 	7.8405	 	 	 	3.8800	 	 	 	2.1222	 	 	 	1.2829	 	 	 	0.5822	 	 	 	0.2946	 	 	 	0.1366	 	 	 	0.0383	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	December 15, 2019	 	 	23.9143	 	 	 	11.4284	 	 	 	2.3375	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 



 




    	 



    	 



    

 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[For all Notes, include the following legend
(the “Non-Affiliate Legend”):]


 


NO AFFILIATE (AS DEFINED IN RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE
COMPANY DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS NOTE OR A BENEFICIAL INTEREST
HEREIN.


 


[For Global Notes, include the following legend (the “Global
Notes Legend”):]


 


[THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]


 


[For all Notes that are Restricted Notes,
include the following legend (the “Restricted Notes Legend”):]


 


[THIS SECURITY AND THE SHARES OF COMMON
STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


		(1)	REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS
ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND



 


		(2)	AGREES FOR THE BENEFIT OF IGI LABORATORIES, INC. (THE
“COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN
PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED
BY APPLICABLE LAW, EXCEPT:



 




    	A-1



    	 



    

  


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



 


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



 


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



 


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



 


PRIOR TO THE REGISTRATION OF ANY TRANSFER
IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN
COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]


  




    	A-2



    	 



    

  


IGI Laboratories, Inc.


3.75% Convertible Senior Notes due 2019


 


No.:     [          ]


 


		CUSIP:	[449575 AA7] [; provided that, at such time as
the Company provides the Free Transferability Certificate to the Trustee and the Registrar, this CUSIP number will be deemed removed
and replaced with the CUSIP number 449575 AB5.]



 


Principal


		Amount $	[          ]
[For Global Notes, include the following: as revised by the Schedule of Increases and Decreases in the Global Note attached
hereto]



 


IGI Laboratories, Inc., a Delaware corporation
(the “Company”), promises to pay to [          ] [include
“Cede & Co.” for Global Note] or registered assigns, the principal amount of [add principal amount in
words] $[          ] [For Global Notes, include the following:, as
revised by the Schedule of Increases and Decreases in the Global Note attached hereto,] on December 15, 2019 (the “Maturity
Date”).


 


Interest Payment Dates: June 15 and December
15.


 


Regular Record Dates: June 1 and December 1.


 


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


  




    	A-1



    	 



    

  


IN WITNESS WHEREOF, IGI Laboratories, Inc.
has caused this instrument to be signed manually or by facsimile by one of its duly authorized Officers.


 


	 	IGI Laboratories, Inc.
	 	 
	 	By:	 
	 	Name:
	 	Title:


 




    	A-2



    	 



    

 





This is one of the Notes referred to in
the within-mentioned Indenture.


 


Dated:


 


	 	Wilmington Trust, National Association, as Trustee
	 	 
	 	By:	 
	 	Authorized Signatory


 




    	A-3



    	 



    

  


[FORM OF REVERSE OF NOTE]


 


IGI Laboratories, Inc.


3.75% Convertible Senior Notes due 2019


 


This Note is one of a duly authorized issue
of securities of the Company (herein called the “Notes”), issued under the Indenture dated as of December 16,
2014 by and between the Company and Wilmington Trust, National Association, herein called the “Trustee,” and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered.


 


This Note does not benefit from a sinking
fund. This Note shall be redeemable at the Company’s option on or after December 19, 2017, subjects to the conditions set
forth in the Indenture.


 


As provided in and subject to the provisions
of the Indenture, upon the occurrence of a Fundamental Change, the Holder of this Note will have the right, at such Holder’s
option, to require the Company to purchase this Note, or any portion of this Note such that the principal amount of this Note that
is not purchased equals $1,000 or an integral multiple of $1,000, on the Fundamental Change Purchase Date at a price equal to the
Fundamental Change Purchase Price for such Fundamental Change Purchase Date.


 


As provided in and subject to the provisions
of the Indenture, the Holder hereof has the right, prior to the Close of Business on the Business Day immediately preceding the
Maturity Date, to convert this Note or a portion of this Note such that the principal amount of this Note converted equals $1,000
or an integral multiple of $1,000, into cash, a number of shares of Common Stock or a combination thereof determined in accordance
with Article 4 of the Indenture and subject to adjustment as set forth therein; provided, however, that prior to obtaining
the Stockholders Approvals, the Company shall not be permitted to elect Physical Settlement or Combination Settlement with respect
to any conversion of Notes and Cash Settlement shall be deemed to apply, subject to certain exceptions as set forth in Section
4.03(a)(ii) of the Indenture.


 


As provided in and subject to the provisions
of the Indenture, the Company will make all payments in respect of the Fundamental Change Purchase Price for, the Redemption Price
for and the principal amount of, this Note to the Holder that surrenders this Note to the Paying Agent to collect such payments
in respect of this Note. The Company will pay cash amounts in money of the U.S. that at the time of payment is legal tender for
payment of public and private debts.


 


The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of
the Holders of the Notes to be effected under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Notes at the time Outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all
Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.


 




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As provided in and subject to the provisions
of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture, or
for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the Note, the Holders of not less than 25% in principal
amount of the Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect
of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to the Trustee, and the Trustee shall
have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity, and shall
not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent
with such request. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment
of the principal hereof, premium, if any, or interest hereon, the Fundamental Change Purchase Price or Redemption Price with respect
to and the amount of cash, the number of shares of Common Stock or the combination thereof, as the case may be, due upon conversion
of this Note or after the respective due dates expressed in the Indenture.


 


No reference herein to the Indenture and
no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay or deliver, as the case may be, the principal of (including the Fundamental Change Purchase Price or Redemption Price, if
applicable), premium, interest on and the amount of cash, a number of shares of Common Stock or a combination of cash and shares
of Common Stock, if any, as the case may be, due upon conversion of, this Note at the time, place and rate, and in the coin and
currency, herein prescribed.


 


As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Note is registrable in the Register, upon surrender of this Note
for registration of transfer to the Trustee, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon
a new Note of this series and of like tenor for the same aggregate principal amount will be issued to the designated transferee.


 


The Notes are issuable only in registered
form without coupons in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount
of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.


 




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Subject to the rights of the Holders as
of the Regular Record Date to receive interest on the related Interest Payment Date, prior to due presentment of this Note for
registration of transfer, the Company, the Trustee, the Agents and any of their respective agents may treat the Person in whose
name the Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee, the Agents nor any agents shall be affected by notice to the contrary.


 


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 entirety), JT TEN (= joint tenants
with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to Minors Act).


 


Upon the issuance of any new Note, the Company
may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including fees and expenses of the Trustee) connected therewith.


 


All defined terms used in this Note that
are defined in the Indenture shall have the meanings assigned to them in the Indenture. If any provision of this Note limits, qualifies
or conflicts with a provision of the Indenture, such provision of the Indenture shall control.


 




    	A-6



    	 



    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


To:     IGI Laboratories, Inc.


 


The undersigned owner of this Note hereby irrevocably exercises
the option to convert this Note, or a portion hereof (which is such that the principal amount of the portion of this Note that
will not be converted equals $1,000 or an integral multiple of $1,000 in excess thereof) below designated, into cash, a number
of shares of Common Stock or a combination thereof in accordance with the terms of the Indenture referred to in this Note, and
directs that any cash payable and any shares of Common Stock issuable and deliverable upon conversion, together with any Notes
representing any unconverted principal amount hereof, be paid and/or issued and/or delivered, as the case may be, to the registered
Holder hereof unless a different name is indicated below; provided, however, that prior to obtaining the Stockholders Approvals,
the Company shall not be permitted to elect Physical Settlement or Combination Settlement with respect to any conversion of Notes
and Cash Settlement shall be deemed to apply, subject to certain exceptions as set forth in Section 4.03(a)(ii) of the Indenture.


 


Subject to certain exceptions set forth in the Indenture, if
this notice is being delivered on a date after the Close of Business on a Regular Record Date and prior to the Open of Business
on the Interest Payment Date corresponding to such Regular Record Date, this notice must be accompanied by payment of an amount
equal to the interest payable on such Interest Payment Date on the principal amount of this Note to be converted. If any shares
of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect to such issuance and transfer as set forth in the Indenture.


 


Principal amount to be converted (if less than all):


 


$     


 


Dated:      


 


Signature(s)


(Sign exactly as your name appears on the other side
of this Note)


 


Signature Guarantee


(Signature(s) must be guaranteed by an institution which
is a member of one of the following recognized signature Guarantee Programs:


(i) The Notes Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) another guarantee program acceptable to the
Trustee.)


 




    	A-7



    	 



    

  


Fill in if a check is to be issued, or shares of Common Stock
or Notes are to be registered, otherwise than to or in the name of the registered Holder.


  


(Name)


  


(Address)


 


Please print name and address

(including zip code)


  


(Social Security or other Taxpayer

Identifying Number)


 


Dated:      


 


Signature(s)


(Sign exactly as such Person’s name appears above)


 


Signature Guarantee


(Signature(s) must be guaranteed by an institution which
is a member of one of the following recognized signature Guarantee Programs:


(i) The Notes Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP)
or (iv) another guarantee program acceptable to the Trustee.)


 




    	A-8



    	 



    

 


 ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]


 


To:     IGI Laboratories, Inc.


 


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


 


Principal amount to be purchased (if less than all):


 


$     


 


Certificate number (if Notes are in certificated form)


 


Dated:      


 


     


Signature(s)


(Sign exactly as your name appears on the other side
of this Note)


     


Social Security or Other Taxpayer Identification Number


 




    	A-9



    	 



    

 


ATTACHMENT 3


 


[FORM OF ASSIGNMENT AND TRANSFER]


 


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


 


In connection with any transfer of the within Note occurring
prior to the Resale Restriction Termination Date, as defined in the Indenture governing such Note, the undersigned confirms that
such Note is being transferred:


 


 ̈     To
IGI Laboratories, Inc. or a subsidiary thereof; or


 


 ̈     Pursuant
to a registration statement which has become effective under the Securities Act of 1933, as amended; or


 


 ̈     To
a qualified institutional buyer in compliance with Rule 144A under the Securities Act of 1933, as amended; or


 


 ̈     Pursuant
to an exemption from registration provided by Rule 144 under the Securities Act of 1933, as amended, or any other available exemption
from the registration requirements of the Securities Act of 1933, as amended.


 


[TO BE SIGNED BY PURCHASER IF THE SECOND, THIRD OR FOURTH BOX
ABOVE IS CHECKED]


 


[Include if the second, third or fourth box above is checked]
[The undersigned (on the immediately following signature line) represents and warrants that it is not, and has not been for the
immediately preceding three months, an “affiliate” (as defined in Rule 144 under the Securities Act of 1933, as amended)
of IGI Laboratories, Inc.]


 


[Include if the third box above is checked] [The undersigned
(on the immediately following signature line) represents and warrants that it is purchasing this Note for its own account or an
account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional
buyer” within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s
foregoing representations in order to claim the exemption from registration provided by Rule 144A.]


 


[Date: ______________________          Signed:
______________________]               


 




    	A-10



    	 



    

  


Unless one of the above boxes is checked, the Trustee and Registrar
will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder
thereof; provided that, if the fourth box is checked, the Company may require, prior to registering any such transfer of
the Notes, in its sole discretion, such legal opinions, certifications and other information as the Company may reasonably request
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.


 


If none of the foregoing boxes is checked,
the Trustee or Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless
and until the conditions to any such transfer of registration set forth herein and in Section 2.11 of the Indenture shall have
been satisfied.


 


	Dated:	 
	 	 
	 	 
	 	 
	 	 
	Signature(s)	 


 


(Sign exactly as your name appears on the other side of this
Note)


 


	 	 
	 	 
	Signature Guarantee	 
	(Signature(s) must be guaranteed by an institution which is a member of one of the following recognized signature Guarantee Programs:  (i) The Notes Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP) or (iv) another guarantee program acceptable to the Trustee)	 


 




    	A-11



    	 



    

  


ATTACHMENT 4


 


[Insert for Global Note]


 


SCHEDULE OF INCREASES AND DECREASES IN THE
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, Note

Custodian or

authorized

signatory of

Trustee
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 


 




    	A-12



    	 



    

 


EXHIBIT B


 


[FORM OF FREE TRANSFERABILITY CERTIFICATE]


 


Officer’s Certificate


 


[date]


 


[NAME OF OFFICER], the [TITLE] of IGI Laboratories,
Inc., a Delaware corporation (the “Company”) does hereby certify, in connection with the occurrence of the Free
Trade Date on [date] in respect of $[add principal amount] of the Company’s 3.75% Convertible Senior Notes due 2019
(CUSIP: 449575 AA7) (the “Notes”) pursuant to the terms of the Indenture, dated as of December 16, 2014 (as
may be amended or supplemented from time to time, the “Indenture”), by and between the Company and Wilmington
Trust, National Association (the “Trustee”), that:






1.          The
undersigned is permitted to sign this “Officer’s Certificate” on behalf of the Company, as the term “Officer’s
Certificate” is defined in the Indenture.


 


2.          The
undersigned has read, and thoroughly examined, the Indenture and the definitions therein relating thereto.


 


3.          In
the opinion of the undersigned, the undersigned has made such examination as is necessary to enable the undersigned to express
an informed opinion as to whether or not all conditions precedent to the removal of the Restricted Notes Legend described herein
from the Notes as provided for in the Indenture have been complied with.


 


4.          To
the best knowledge of the undersigned, all conditions precedent described herein as provided for in the Indenture and, in the case
of Global Notes, the Applicable Procedures have been complied with.


 


5.      The Resale
Restriction Termination Date for the Notes is the date of this Officer’s Certificate. The Company is satisfied that the Notes
are not subject to the restrictions set forth in the Restricted Notes Legend and Section 2.07 of the Indenture.


 


In accordance with Section 2.08 of
the Indenture, the Company hereby advises you as follows:


 


1.          The
Restricted Notes Legend set forth on the Notes shall be deemed removed from the Notes in accordance with the terms and conditions
of the Notes and as provided in the Indenture, without further action on the part of the Holders.


 


2.          The
restricted CUSIP number for the Notes shall be deemed removed from the Notes and replaced with an unrestricted CUSIP number, which
unrestricted CUSIP number shall be 449575 AB5, in accordance with the terms and conditions of the Notes and as provided in the
Indenture, without further action on the part of the Holders.


 


Capitalized terms used but not otherwise
defined herein shall have the meanings set forth in the Indenture.


 




    	B-1



    	 



    

  


EXHIBIT B


 


IN WITNESS WHEREOF, the undersigned signed
this Officer’s Certificate as of the date written above.


 


	 	IGI Laboratories, Inc.
	 	 
	 	By:	 
	 	Name:
	 	Title:


 




    	B-2



    	 



    

  


EXHIBIT C


 


[FORM OF RESTRICTED STOCK LEGEND]


 


THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:


 


		(1)	REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS
ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT
EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND



 


		(2)	AGREES FOR THE BENEFIT OF IGI LABORATORIES, INC. (THE
“COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN
PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) (X) THAT IS AT LEAST ONE YEAR AFTER THE LAST DATE OF
ORIGINAL ISSUANCE OF THE COMPANY’S 3.75% CONVERTIBLE SENIOR NOTES DUE 2019 OR SUCH OTHER PERIOD OF TIME AS PERMITTED BY
RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO, AND (Y) ON WHICH THE COMPANY HAS INSTRUCTED THE TRUSTEE
FOR THE COMPANY’S 3.75% CONVERTIBLE SENIOR NOTES DUE 2020 THAT THE RESTRICTIONS DESCRIBED IN THE LEGEND WILL NO LONGER APPLY
IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE GOVERNING THE COMPANY’S 3.75% CONVERTIBLE SENIOR NOTES DUE
2019, EXCEPT:



 


		(A)	TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, OR



 


		(B)	PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED (OR HAS BECOME) EFFECTIVE UNDER THE SECURITIES ACT THAT COVERS RESALE OF THE SHARES OF COMMON STOCK UNDERLYING THE COMPANY’S
3.75% CONVERTIBLE SENIOR NOTES DUE 2019, OR



 


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



 


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



 




    	C-1



    	 



    

  


PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S COMMON STOCK RESERVE THE RIGHT TO REQUIRE
THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT
THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, AND THE TRANSFER
AGENT WILL NOT BE REQUIRED TO ACCEPT FOR REGISTRATION OF TRANSFER ANY SECURITIES ACQUIRED BY A PURCHASER EXCEPT UPON PRESENTATION
OF EVIDENCE SATISFACTORY TO THE TRANSFER AGENT THAT THE RESTRICTIONS SET FORTH HEREIN HAVE BEEN COMPLIED WITH. NO REPRESENTATION
IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.


 






    	C-2