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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 14, 2024
MARATHON
DIGITAL HOLDINGS, INC.
(Exact
name of Registrant as Specified in Its Charter)
Nevada |
|
001-36555 |
|
01-0949984 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
101
NE Third Avenue, Suite 1200
Fort
Lauderdale, FL 33301
(Address
of principal executive offices and zip code)
(800)
804-1690
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock |
|
MARA |
|
The
Nasdaq Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. |
Entry
into a Material Definitive Agreement. |
Convertible
Notes Offering
On
August 14, 2024, Marathon Digital Holdings, Inc. (the “Company”) completed its previously announced private offering of 2.125%
convertible senior notes due 2031 (the “notes”). The notes were sold under a purchase agreement, dated as of August 12, 2024,
entered into by and between the Company and Barclays Capital Inc., as representative of the several initial purchasers named therein
(the “Initial Purchasers”), for resale to persons reasonably believed to be qualified institutional buyers pursuant to Rule
144A under the Securities Act of 1933, as amended (the “Securities Act”). The aggregate principal amount of notes sold in
the offering was $300.0 million, which includes $50.0 million aggregate principal amount of notes issued pursuant to an option to purchase,
within a 13-day period beginning on, and including, the date on which the notes were first issued, granted to the Initial Purchasers
under the purchase agreement, which the Initial Purchasers exercised in full on August 13, 2024 and which additional purchase was completed
on August 14, 2024.
The
notes were issued at a price equal to 100% of their principal amount. The net proceeds from the sale of the notes were approximately
$292.5 million after deducting the Initial Purchasers’ discounts and commissions but before estimated offering expenses payable
by the Company.
The
Company intends to use the net proceeds from the sale of the notes to acquire additional bitcoin and for general corporate purposes,
which may include working capital, strategic acquisitions, expansion of existing assets and repayment of debt and other outstanding obligations.
Indenture
and the Notes
On
August 14, 2024, the Company entered into an indenture (the “Indenture”) with respect to the notes with U.S. Bank Trust Company,
National Association, as trustee (the “Trustee”). The notes are senior unsecured obligations of the Company and bear interest
at a rate of 2.125% per year payable semiannually in arrears on March 1 and September 1 of each year, beginning on March 1, 2025. The
notes will mature on September 1, 2031, unless earlier converted, redeemed or repurchased in accordance with their terms.
The
notes are convertible into shares of the Company’s common stock at an initial conversion rate of 52.9451 shares per $1,000 principal
amount of notes (equivalent to an initial conversion price of approximately $18.89 per share of common stock). The conversion rate is
subject to customary anti-dilution adjustments. In addition, following certain events that occur prior to the maturity date or if the
Company delivers a notice of redemption, the Company will increase the conversion rate for a holder who elects to convert its notes in
connection with such corporate event or notice of redemption, as the case may be, in certain circumstances as provided in the Indenture.
Prior
to March 1, 2031, the notes are convertible only upon the occurrence of certain events. On or after March 1, 2031 until the close of
business on the second scheduled trading day immediately preceding the maturity date of the notes, holders may convert the notes at any
time. Upon conversion of the notes, the Company will pay or deliver, as the case may be, cash, shares of the Company’s common stock
or a combination of cash and shares of common stock, at the Company’s election.
Prior
to September 6, 2028, the Company may not redeem the notes. The Company may redeem for cash all or any portion of the notes, at its option,
on or after September 6, 2028 if the last reported sale price of the Company’s common stock has been at least 130% of the conversion
price then in effect for at least 20 trading days (whether or not consecutive), including the trading day immediately preceding the date
on which the Company provides a notice of redemption, during any 30 consecutive trading day period ending on, and including, the trading
day immediately preceding the date on which the Company provides notice of redemption. The redemption price will be 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.
Holders
have the right to require the Company to repurchase for cash all or any portion of their notes on March 1, 2029 at a repurchase price
equal to 100% of the principal amount of the notes to be repurchased, plus any accrued and unpaid interest to, but excluding the repurchase
date.
If
the Company undergoes a “fundamental change,” as defined in the Indenture, prior to maturity, subject to certain conditions,
holders may require the Company to repurchase for cash all or any portion of their notes at a fundamental change repurchase price equal
to 100% of the principal amount of the notes to be repurchased, plus any accrued and unpaid interest to, but excluding, the fundamental
change repurchase date.
The
Indenture contains customary terms and covenants, including that upon certain events of default occurring and continuing, either the
Trustee or the holders of at least 25% in principal amount of the outstanding notes may declare 100% of the principal of, and accrued
and unpaid special interest, if any, on, all the notes to be due and payable.
The
foregoing description of the Indenture and the notes does not purport to be complete and is qualified in its entirety by reference to
the full text of the Indenture (and the form of note included therein), a copy of which is filed with this Current Report on Form 8-K
as Exhibit 4.1 hereto and is hereby incorporated herein by reference.
Item
2.03 |
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The
information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item
3.02 |
Unregistered
Sales of Equity Securities. |
The
information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
The
Company offered and sold the notes to the Initial Purchasers in reliance on the exemption from the registration requirements provided
by Section 4(a)(2) of the Securities Act, and the notes were resold only to persons reasonably believed to be qualified institutional
buyers pursuant to Rule 144A of the Securities Act. The Company will settle conversions of the notes by paying and/or delivering, as
the case may be, cash, shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock,
at the Company’s election. Neither the notes nor the underlying shares of common stock have been registered under the Securities
Act and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
The Company does not intend to file a shelf registration statement for the resale of the notes or any common stock issuable upon conversion
of the notes.
On
August 14, 2024, the Company issued a press release announcing the closing of the notes offering. A copy of the press release is filed
as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Cautionary
Note Regarding Forward-Looking Statements
Statements
in this Current Report on Form 8-K and the exhibits attached hereto about future expectations, plans, and prospects, as well as any other
statements regarding matters that are not historical facts, may constitute “forward-looking statements” within the meaning
of The Private Securities Litigation Reform Act of 1995. These statements include, but are not limited to, statements relating to the
Company’s use of the net proceeds of the offering. The words “anticipate,” “believe,” “continue,”
“could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,”
“predict,” “project,” “should,” “target,” “will,” “would,” and
similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying
words. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important
factors, including the other factors discussed in the “Risk Factors” section of the Company’s Annual Report on Form
10-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on February 28, 2024, as amended on May 24, 2024,
the “Risk Factors” section of the Company’s Quarterly Report on Form 10-Q filed with the SEC on August 1, 2024 and
the risks described in other filings that the Company may make from time to time with the SEC. Any forward-looking statements contained
in this Current Report on Form 8-K speak only as of the date hereof, and the Company specifically disclaims any obligation to update
any forward-looking statement, whether as a result of new information, future events, or otherwise, except as required by law.
Item
9.01. |
Financial
Statements and Exhibits. |
(d)
Exhibits
Exhibit
No. |
|
Description |
4.1 |
|
Indenture, dated as of August 14, 2024, between Marathon Digital Holdings, Inc. and U.S. Bank Trust Company, National Association, as trustee, relating to the 2.125% convertible senior notes |
99.1 |
|
Press release, dated August 14, 2024, announcing the closing of the offering |
104 |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date:
August 14, 2024
|
MARATHON
DIGITAL HOLDINGS, INC. |
|
|
|
|
By: |
/s/
Zabi Nowaid |
|
Name: |
Zabi
Nowaid |
|
Title: |
General
Counsel and Corporate Secretary |
Exhibit
4.1
Execution Version
MARATHON
DIGITAL HOLDINGS, INC.
AND
U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as
Trustee
INDENTURE
Dated
as of August 14, 2024
2.125%
Convertible Senior Notes due 2031
TABLE
OF CONTENTS
|
|
Page |
|
|
|
ARTICLE 1 |
Definitions |
|
Section
1.01. |
Definitions
|
1 |
Section
1.02. |
References
to Interest. |
13 |
|
|
|
ARTICLE 2 |
Issue, Description, Execution, Registration and Exchange of Notes |
|
|
|
Section
2.01. |
Designation
and Amount. |
13 |
Section
2.02. |
Form
of Notes. |
14 |
Section
2.03. |
Date
and Denomination of Notes; Payments of Interest and Defaulted Amounts. |
14 |
Section
2.04. |
Execution,
Authentication and Delivery of Notes. |
16 |
Section
2.05. |
Exchange
and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. |
17 |
Section
2.06. |
Mutilated,
Destroyed, Lost or Stolen Notes. |
24 |
Section
2.07. |
Temporary
Notes. |
25 |
Section
2.08. |
Cancellation
of Notes Paid, Converted, Etc. |
25 |
Section
2.09. |
CUSIP
Numbers. |
25 |
Section
2.10. |
Additional
Notes; Repurchases. |
25 |
|
|
|
ARTICLE 3 |
Satisfaction and Discharge |
|
|
|
Section
3.01. |
Satisfaction
and Discharge. |
26 |
|
|
|
ARTICLE 4 |
Particular Covenants of the Company |
|
|
|
Section
4.01. |
Payment
of Principal and Interest. |
26 |
Section
4.02. |
Maintenance
of Office or Agency. |
27 |
Section
4.03. |
Appointments
to Fill Vacancies in Trustee’s Office. |
27 |
Section
4.04. |
Provisions
as to Paying Agent. |
28 |
Section
4.05. |
[Reserved]. |
29 |
Section
4.06. |
Rule
144A Information Requirement and Annual Reports. |
29 |
Section
4.07. |
Stay,
Extension and Usury Laws. |
31 |
Section
4.08. |
Compliance
Certificate; Statements as to Defaults. |
32 |
Section
4.09. |
Further
Instruments and Acts. |
32 |
ARTICLE 5 |
Lists of Holders |
|
|
|
Section
5.01. |
Note
Register. |
32 |
|
|
|
ARTICLE 6 |
Defaults and Remedies |
|
|
|
Section
6.01. |
Events
of Default. |
32 |
Section
6.02. |
Acceleration;
Rescission and Annulment. |
34 |
Section
6.03. |
Additional
Interest |
35 |
Section
6.04. |
Payments
of Notes on Default; Suit Therefor.. |
36 |
Section
6.05. |
Application
of Monies Collected by Trustee. |
37 |
Section
6.06. |
Proceedings
by Holders. |
38 |
Section
6.07. |
Proceedings
by Trustee.. |
39 |
Section
6.08. |
Remedies
Cumulative and Continuing. |
39 |
Section
6.09. |
Direction
of Proceedings and Waiver of Defaults by Majority of Holders. |
40 |
Section
6.10. |
Notice
of Defaults. |
40 |
Section
6.11. |
Undertaking
to Pay Costs. |
40 |
|
ARTICLE 7 |
Concerning the Trustee |
|
Section
7.01. |
Duties
and Responsibilities of Trustee. |
41 |
Section
7.02. |
Reliance
on Documents, Opinions, Etc. |
43 |
Section
7.03. |
No
Responsibility for Recitals, Etc. |
45 |
Section
7.04. |
Trustee,
Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. |
45 |
Section
7.05. |
Monies
and Shares of Common Stock to Be Held in Trust. |
45 |
Section
7.06. |
Compensation
and Expenses of Trustee. |
46 |
Section
7.07. |
Officer’s
Certificate as Evidence. |
46 |
Section
7.08. |
Eligibility
of Trustee. |
46 |
Section
7.09. |
Resignation
or Removal of Trustee. |
47 |
Section
7.10. |
Acceptance
by Successor Trustee. |
48 |
Section
7.11. |
Succession
by Merger, Etc. |
48 |
Section
7.12. |
Trustee’s
Application for Instructions from the Company. |
49 |
|
|
|
ARTICLE 8 |
Concerning the Holders |
|
|
|
Section
8.01. |
Action
by Holders. |
49 |
Section
8.02. |
Proof
of Execution by Holders. |
49 |
Section
8.03. |
Who
Are Deemed Absolute Owners. |
50 |
Section
8.04. |
Company-Owned
Notes Disregarded. |
50 |
Section
8.05. |
Revocation
of Consents; Future Holders Bound. |
51 |
ARTICLE 9 |
Holders’ Meetings |
|
|
|
Section
9.01. |
Purpose
of Meetings. |
51 |
Section
9.02. |
Call
of Meetings by Trustee. |
51 |
Section
9.03. |
Call
of Meetings by Company or Holders. |
52 |
Section
9.04. |
Qualifications
for Voting. |
52 |
Section
9.05. |
Regulations. |
52 |
Section
9.06. |
Voting. |
52 |
Section
9.07. |
No
Delay of Rights by Meeting. |
53 |
|
|
|
ARTICLE 10 |
Supplemental Indentures |
|
|
|
Section
10.01. |
Supplemental
Indentures Without Consent of Holders. |
53 |
Section
10.02. |
Supplemental
Indentures with Consent of Holders. |
54 |
Section
10.03. |
Effect
of Supplemental Indentures. |
55 |
Section
10.04. |
Notation
on Notes. |
55 |
Section
10.05. |
Evidence
of Compliance of Supplemental Indenture to Be Furnished Trustee. |
56 |
|
|
|
ARTICLE 11 |
Consolidation, Merger, Sale, Conveyance and Lease |
|
|
|
Section
11.01. |
Company
May Consolidate, Etc. on Certain Terms. |
56 |
Section
11.02. |
Successor
Corporation to Be Substituted. |
57 |
Section
11.03. |
Officer’s
Certificate and Opinion of Counsel to Be Given to Trustee.. |
57 |
|
|
|
ARTICLE 12 |
Immunity of Incorporators, Stockholders, Officers and Directors |
|
|
|
Section
12.01. |
Indenture
and Notes Solely Corporate Obligations. |
57 |
|
|
|
ARTICLE 13 |
Intentionally Omitted |
|
|
|
ARTICLE 14 |
Conversion of Notes |
|
|
|
Section
14.01. |
Conversion
Privilege. |
58 |
Section
14.02. |
Conversion
Procedure; Settlement Upon Conversion. |
60 |
Section
14.03. |
Increased
Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Redemption Notice. |
65 |
Section
14.04. |
Adjustment
of Conversion Rate. |
68 |
Section
14.05. |
Adjustments
of Prices. |
77 |
Section
14.06. |
Shares
to Be Fully Paid. |
77 |
Section
14.07. |
Effect
of Recapitalizations, Reclassifications and Changes of the Common Stock. |
77 |
Section
14.08. |
Reserve
and Status of Common Stock Issued upon Conversion. |
79 |
Section
14.09. |
Responsibility
of Trustee. |
80 |
Section
14.10. |
Notice
to Holders Prior to Certain Actions. |
80 |
Section
14.11. |
Stockholder
Rights Plans. |
81 |
Section
14.12. |
Exchange
in Lieu of Conversion. |
81 |
|
|
ARTICLE 15 |
|
Repurchase of Notes at Option of Holders |
|
|
|
|
Section
15.01. |
Repurchase
at Option of Holders. |
82 |
Section
15.02. |
Repurchase
at Option of Holders Upon a Fundamental Change. |
84 |
Section
15.03. |
Withdrawal
of Repurchase Notice or Fundamental Change Repurchase Notice. |
87 |
Section
15.04. |
Deposit
of Repurchase Price or Fundamental Change Repurchase Price. |
87 |
Section
15.05. |
Covenant
to Comply with Applicable Laws Upon Repurchase of Notes. |
88 |
|
|
ARTICLE 16 |
|
Optional Redemption |
|
|
|
Section
16.01. |
Optional
Redemption. |
89 |
Section
16.02. |
Notice
of Optional Redemption; Selection of Notes. |
89 |
Section
16.03. |
Payment
of Notes Called for Redemption.. |
90 |
Section
16.04. |
Restrictions
on Redemption. |
91 |
|
|
ARTICLE 17 |
|
Miscellaneous Provisions |
|
|
|
Section
17.01. |
Provisions
Binding on Company’s Successors. |
91 |
Section
17.02. |
Official
Acts by Successor Corporation. |
91 |
Section
17.03. |
Addresses
for Notices, Etc. |
91 |
Section
17.04. |
Governing
Law; Jurisdiction. |
92 |
Section
17.05. |
Evidence
of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. |
93 |
Section
17.06. |
Legal
Holidays. |
93 |
Section
17.07. |
No
Security Interest Created. |
94 |
Section
17.08. |
Benefits
of Indenture. |
94 |
Section
17.09. |
Table
of Contents, Headings, Etc. |
94 |
Section
17.10. |
Authenticating
Agent. |
94 |
Section
17.11. |
Execution
in Counterparts. |
95 |
Section
17.12. |
Severability. |
95 |
Section
17.13. |
Waiver
of Jury Trial. |
95 |
Section
17.14. |
Force
Majeure. |
95 |
Section
17.15. |
Calculations. |
96 |
Section
17.16. |
USA
PATRIOT Act. |
96 |
Section
17.17. |
Tax
Withholding. |
96 |
EXHIBIT
Exhibit A |
Form of Note |
A-1 |
INDENTURE
dated as of August 14, 2024 between MARATHON DIGITAL HOLDINGS, INC., a Nevada corporation, as issuer (the “Company,”
as more fully set forth in Section 1.01) and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee
(the “Trustee,” as more fully set forth in Section 1.01).
W
I T N E S S E T H:
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance of its 2.125% Convertible Senior Notes due 2031 (the
“Notes”), initially in an aggregate principal amount not to exceed $300,000,000, and in order to provide the terms
and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS,
the Form of Note, the certificate of authentication to be borne by each Note, the Form of Notice of Conversion, the Form of Fundamental
Change Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter
provided; and
WHEREAS,
all acts and things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as provided in this Indenture, the valid, binding and legal obligations of the Company, and this Indenture
a valid agreement according to its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder
of the Notes have in all respects been duly authorized.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That
in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration
of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective Holders from time to time of the Notes (except as otherwise provided below),
as follows:
Article
1
Definitions
Section
1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified
in this Section 1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include
the plural as well as the singular. The terms “given,” “mailed,” “notify” or
“sent” with respect to any notice to be given to a Holder pursuant to this Indenture, shall mean notice (x) given
to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic
mail in accordance with accepted practices or procedures at the Depositary (in the case of a Global Note) or (y) mailed to such Holder
by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, at
its address as it appears on the Note Register (in the case of a Physical Note), in each case, in accordance with Section 17.03. Notice
so “given” shall be deemed to include any notice so “mailed” or “delivered,” as applicable, under
this Indenture.
“Additional
Interest” means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03, as applicable.
“Additional
Shares” shall have the meaning specified in Section 14.03(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 or cause the direction of the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. Notwithstanding anything to the contrary herein, the determination of whether one Person
is an “Affiliate” of another Person for purposes of this Indenture shall be made based on the facts at the time such
determination is made or required to be made, as the case may be, hereunder.
“Bid
Solicitation Agent” means the Company or the Person appointed by the Company to solicit bids for the Trading Price of the Notes
in accordance with Section 14.01(b)(i). The Company shall initially act as the Bid Solicitation Agent.
“Board
of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business
Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of
New York is authorized or required by law or executive order to close or be closed.
“Capital
Stock” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that entity; provided that, any debt securities convertible
into or exchangeable for Capital Stock shall not constitute Capital Stock prior to their conversion or exchange, as the case may be.
“Cash
Settlement” shall have the meaning specified in Section 14.02(a).
“Clause
A Distribution” shall have the meaning specified in Section 14.04(c).
“Clause
B Distribution” shall have the meaning specified in Section 14.04(c).
“Clause
C Distribution” shall have the meaning specified in Section 14.04(c).
“close
of business” means 5:00 p.m. (New York City time).
“Combination
Settlement” shall have the meaning specified in Section 14.02(a).
“Commission”
means the U.S. Securities and Exchange Commission.
“Common
Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors
of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners,
managers or others that will control the management or policies of such Person.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, at the date of this Indenture, subject to Section
14.07.
“Company”
shall have the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 11, shall include
its successors and assigns.
“Company
Notice” shall have the meaning specified in Section 15.01(a).
“Company
Order” means a written order of the Company signed on behalf of the Company by one (1) of its Officers and delivered to the
Trustee.
“Conversion
Agent” shall have the meaning specified in Section 4.02.
“Conversion
Consideration” shall have the meaning specified in Section 14.12.
“Conversion
Date” shall have the meaning specified in Section 14.02(c).
“Conversion
Obligation” shall have the meaning specified in Section 14.01(a).
“Conversion
Price” means as of any date, $1,000, divided by the Conversion Rate as of such date.
“Conversion
Rate” shall have the meaning specified in Section 14.01(a).
“Corporate
Trust Office” means (i) with respect to the Trustee, the designated office of the Trustee at which at any particular time this
Indenture shall be administered, which office as of the date hereof is located at U.S. Bank Trust Company, National Association, Global
Corporate Trust Services EP-MN-WS3C, 60 Livingston Avenue, St. Paul, MN 55107, Attention: Corporate Trust Administrator for Marathon
Digital Holdings, Inc., or such other office as the Trustee may from time to time designate in writing to the Company and the Holders
or (ii) the designated corporate trust office of any successor trustee (or such other address as such successor trustee may designate
from time to time by notice to the Holders and the Company).
“Custodian”
means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.
“Daily
Conversion Value” means, for each of the 20 consecutive Trading Days during the Observation Period, one-twentieth (1/20th)
of the product of (a) the Conversion Rate on such Trading Day and (b) the Daily VWAP for such Trading Day.
“Daily
Measurement Value” means the Specified Dollar Amount (if any), divided by 20.
“Daily
Settlement Amount,” for each of the 20 consecutive Trading Days during the Observation Period, shall consist of:
(a)
cash in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and
(b)
if the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i)
the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such Trading
Day
“Daily
VWAP” means, for each of the 20 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted
average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “MARA <equity> AQR” (or
its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market
value of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally recognized
independent investment banking firm retained for this purpose by the Company). The “Daily VWAP” shall be determined
without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
“Default”
means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Defaulted
Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, the Repurchase Price, the Fundamental
Change Repurchase Price, principal and interest) that are payable but have not been paid or duly provided for.
“Depositary”
means, with respect to each Global Note, the Person specified in Section 2.05(c) as the Depositary with respect to such Notes, until
a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary”
shall mean or include such successor.
“Distributed
Property” shall have the meaning specified in Section 14.04(c).
“Distribution
Trigger Irrevocable Physical Settlement Period” shall have the meaning specified in Section 14.01(b)(ii).
“Effective
Date” shall have the meaning specified in Section 14.03(c), except that, as used in Section 14.04 and Section 14.05, “Effective
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market,
regular way, reflecting the relevant share split or share combination, as applicable.
“Event
of Default” shall have the meaning specified in Section 6.01.
“Ex-Dividend
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market,
regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from
the seller of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Election” shall have the meaning specified in Section 14.12.
“Form
of Assignment and Transfer” means the “Form of Assignment and Transfer” attached as Attachment 4 to the Form of
Note attached hereto as Exhibit A.
“Form
of Fundamental Change Repurchase Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment
2 to the Form of Note attached hereto as Exhibit A.
“Form
of Note” means the “Form of Note” attached hereto as Exhibit A.
“Form
of Notice of Conversion” means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note
attached hereto as Exhibit A.
“Form
of Repurchase Notice” shall mean the “Form of Repurchase Notice” attached as Attachment 3 to the Form of Note attached
hereto as Exhibit A.
“Fundamental
Change” shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a)
(A) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its
Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, files a Schedule TO or any
schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial
owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common Stock representing more than 50% of the voting power of
the Common Stock , or (B) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other
than the Company, its Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, files
a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect
“beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common Stock representing more than 50% of the
total outstanding Common Stock;
(b)
the consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision,
combination or change in par value) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities,
other property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted
into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of related
transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person
other than one or more of the Company’s Wholly Owned Subsidiaries; provided, however, that neither (i) a transaction described
in clause (A) or (B) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own,
directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the
parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior to such transaction
nor (ii) any merger of the Company solely for the purpose of changing the Company’s jurisdiction of incorporation that results
in a reclassification, conversion or exchange of outstanding shares of the Common Stock solely into shares of common stock of the surviving
entity that is “listed stock” (as defined below) and such “listed stock” becomes the Reference Property for the
Notes shall be a Fundamental Change pursuant to this clause (b);
(c)
the stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(d)
the Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange, The
Nasdaq Capital Market, The Nasdaq Global Select Market or The Nasdaq Global Market (or any of their respective successors);
provided,
however, that a transaction or transactions described in clause (a) or clause (b) above shall not constitute a Fundamental Change,
if at least 90% of the consideration received or to be received by the common stockholders of the Company, excluding cash payments for
fractional shares or pursuant to statutory appraisal rights, in connection with such transaction or transactions consists of shares of
common stock or other Common Equity that are listed or quoted on any of The New York Stock Exchange, The Nasdaq Capital Market, The Nasdaq
Global Select Market or The Nasdaq Global Market (or any of their respective successors) or will be so listed or quoted when issued or
exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Notes become convertible
into such consideration (“listed stock”), excluding cash payments for fractional shares or pursuant to statutory appraisal
rights (subject to the provisions of Section 14.02(a)). If any transaction in which the Common Stock is replaced by the securities of
another entity occurs, following completion of any related Make-Whole Fundamental Change Period (or, in the case of a transaction that
would have been a Fundamental Change or a Make-Whole Fundamental Change but for the proviso immediately following clause (d) of this
definition, following the effective date of such transaction), references to the Company in this definition shall instead be references
to such other entity.
“Fundamental
Change Company Notice” shall have the meaning specified in Section 15.02(c).
“Fundamental
Change Repurchase Date” shall have the meaning specified in Section 15.02(a).
“Fundamental
Change Repurchase Notice” shall have the meaning specified in Section 15.02(b)(i).
“Fundamental
Change Repurchase Price” shall have the meaning specified in Section 15.02(a).
“Global
Note” shall have the meaning specified in Section 2.05(b).
“Holder,”
as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name
at the time a particular Note is registered on the Note Register.
“Indenture”
means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“Initial
Purchasers” means the several purchasers named in Schedule I to the Purchase Agreement.
“Interest
Payment Date” means each March 1 and September 1 of each year, beginning on March 1, 2025.
“Last
Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or, if no closing sale price is
reported, the average of the last bid and last ask prices per share or, if more than one in either case, the average of the average last
bid prices and the average last ask prices per share) on that date as reported in composite transactions for the principal U.S. national
or regional securities exchange on which the Common Stock is then listed. If the Common Stock is not listed for trading on a U.S. national
or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid
price per share for the Common Stock in the over-the-counter market on the relevant date as reported by OTC Markets Group Inc. or a similar
organization. If the Common Stock is not so quoted on the relevant date, the “Last Reported Sale Price” shall be the
average of the mid-point of the last bid price and last ask price for the Common Stock on the relevant date from a nationally recognized
independent investment banking firm selected by the Company for this purpose, which may be any of the Initial Purchasers.
“Make-Whole
Fundamental Change” means any transaction or event that constitutes a Fundamental Change (as defined above and determined after
giving effect to any exceptions to or exclusions from such definition, but without regard to clause (i) of the proviso in clause
(b) of the definition thereof).
“Make-Whole
Fundamental Change Period” shall have the meaning specified in Section 14.03(a).
“Market
Disruption Event” means, for the purposes of determining amounts due upon conversion (a) a failure by the primary U.S. national
or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its
regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the
Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed
on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock
or in any options contracts or futures contracts relating to the Common Stock.
“Maturity
Date” means September 1, 2031.
“Measurement
Period” shall have the meaning specified in Section 14.01(b)(i).
“Note”
or “Notes” shall have the meaning specified in the first paragraph of the recitals of this Indenture.
“Note
Register” shall have the meaning specified in Section 2.05(a).
“Note
Registrar” shall have the meaning specified in Section 2.05(a).
“Notice
of Conversion” shall have the meaning specified in Section 14.02(b).
“Observation
Period” with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date
occurs prior to March 1, 2031, the 20 consecutive Trading Day period beginning on, and including, the second Trading Day immediately
succeeding such Conversion Date; (ii) if the relevant Conversion Date occurs on or after the date of the Company’s issuance of
a Redemption Notice with respect to the Notes pursuant to Section 16.02 and prior to the close of business on the second Scheduled Trading
Day immediately preceding the relevant Redemption Date, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled
Trading Day immediately preceding such Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or
after March 1, 2031, the 20 consecutive Trading Days beginning on, and including, the 21st Scheduled Trading Day immediately preceding
the Maturity Date.
“Offering
Memorandum” means the preliminary offering memorandum dated August 12, 2024, as supplemented by the related pricing term sheet
dated August 12, 2024, relating to the offering and sale of the Notes.
“Officer”
means, with respect to the Company, the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Chief Accounting Officer, the General
Counsel, the Secretary or any Vice President of the Company.
“Officer’s
Certificate,” when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed
an Officer of the Company. Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required
by the provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the principal
executive, financial, legal or accounting officer of the Company.
“open
of business” means 9:00 a.m. (New York City time).
“Opinion
of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other
counsel acceptable to the Trustee, that is delivered to the Trustee, which opinion may contain customary exceptions and qualifications
as to the matters set forth therein and which legal counsel may, in providing such opinion, rely upon certifications or other representations
as to matters of fact. Each such opinion shall include the statements provided for in Section 17.05 if and to the extent required by
the provisions of such Section 17.05.
“Optional
Redemption” shall have the meaning specified in Section 16.01.
“outstanding,”
when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated
and delivered by the Trustee under this Indenture, except:
(a)
Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation;
(b)
Notes, or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent);
(c)
Notes that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any such
Notes are held by protected purchasers in due course;
(d)
Notes converted pursuant to Article 14 and required to be cancelled pursuant to Section 2.08;
(e)
Notes redeemed pursuant to Article 16; and
(f)
Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10.
“Partial
Redemption Limitation” shall have the meaning specified in Section 16.02(d).
“Paying
Agent” shall have the meaning specified in Section 4.02.
“Person”
means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company,
a trust, an unincorporated organization or any other entity or organization, including a government or an agency or a political subdivision
thereof.
“Physical
Notes” means permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and integral
multiples thereof.
“Physical
Settlement” shall have the meaning specified in Section 14.02(a).
“Predecessor
Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.06 in lieu of or in exchange
for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Note that it replaces.
“Purchase
Agreement” means that certain Purchase Agreement, dated as of August 12, 2024, 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
(or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such
other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination
of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date
is fixed by the Board of Directors, by statute, by contract or otherwise).
“Redemption
Date” shall have the meaning specified in Section 16.02(a).
“Redemption
Notice” shall have the meaning specified in Section 16.02(a).
“Redemption
Price” means, for any Notes to be redeemed pursuant to Section 16.01, 100% of the principal amount of such Notes, plus
accrued and unpaid interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record
Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date
will be paid to Holders of record of such Notes as of the close of business on such Regular Record Date, and the Redemption Price will
be equal to 100% of the principal amount of such Notes).
“Reference
Property” shall have the meaning specified in Section 14.07(a).
“Regular
Record Date” with respect to any Interest Payment Date, means the February 15 or August 15 (whether or not such day is a Business
Day) immediately preceding the applicable March 1 or September 1 Interest Payment Date, respectively.
“Repurchase
Date” shall have the meaning specified in Section 15.01(a).
“Repurchase
Expiration Time” shall have the meaning specified in Section 15.01(a).
“Repurchase
Notice” shall have the meaning specified in Section 15.01(a).
“Repurchase
Price” shall have the meaning specified in Section 15.01(a).
“Resale
Restriction Termination Date” shall have the meaning specified in Section 2.05(c).
“Responsible
Officer” means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee, including
any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee
who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or
to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity
with the particular subject and, in each case, who shall have direct responsibility for the administration of this Indenture.
“Restricted
Securities” shall have the meaning specified in Section 2.05(c).
“Rule
144” means Rule 144 as promulgated under the Securities Act.
“Rule
144A” means Rule 144A as promulgated under the Securities Act.
“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange
or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading,
“Scheduled Trading Day” means a Business Day.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Settlement
Amount” has the meaning specified in Section 14.02(a)(iv).
“Settlement
Method” means, with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as
elected (or deemed to have been elected) by the Company.
“Settlement
Notice” has the meaning specified in Section 14.02(a)(iii).
“Share
Exchange Event” shall have the meaning specified in Section 14.07(a).
“Significant
Subsidiary” means any Subsidiary of the Company that would be a “significant subsidiary” as defined in Article
1, Rule 1-02(w)(1)(ii) of Regulation S-X, pursuant to the Securities Act as in effect on the date the Notes were first issued.
“Specified
Dollar Amount” means the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified
(or deemed as specified) in the Settlement Notice related to any converted Notes.
“Spin-Off”
shall have the meaning specified in Section 14.04(c).
“Stock
Price” shall have the meaning specified in Section 14.03(c).
“Subsidiary”
means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total
voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, general partners or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries
of such Person.
“Successor
Company” shall have the meaning specified in Section 11.01(a).
“Trading
Day” means, except for purposes of determining amounts due upon conversion as set forth in the proviso below, a day on which
(i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on The Nasdaq
Capital Market or, if the Common Stock (or such other security) is not then listed on The Nasdaq Capital Market, on the principal other
U.S. national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock
(or such other security) is not then listed on a U.S. national or regional securities exchange, on the principal other market on which
the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price for the Common Stock (or closing sale price
for such other security) is available on such securities exchange or market; provided that if the Common Stock (or such other
security) is not so listed or traded, “Trading Day” means a Business Day; and provided, further, that
for purposes of determining amounts due upon conversion only, “Trading Day” means a day on which (x) there is no Market
Disruption Event and (y) trading in the Common Stock generally occurs on The Nasdaq Capital Market or, if the Common Stock is not then
listed on The Nasdaq Capital Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market
on which the Common Stock is then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading,
“Trading Day” means a Business Day.
“Trading
Price” of the Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid
Solicitation Agent for $5,000,000 (or such lesser amount as may then be outstanding) principal amount of Notes at approximately 3:30
p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Company selects
for this purpose, which may include one or more of the Initial Purchasers; provided that if three such bids cannot reasonably
be obtained by the Bid Solicitation Agent 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 Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot
reasonably obtain at least one bid for $5,000,000 (or such lesser amount as may then be outstanding) principal amount of Notes from a
nationally recognized securities dealer on any determination date, then the Trading Price per $1,000 principal amount of Notes on such
determination date shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate.
“transfer”
shall have the meaning specified in Section 2.05(c).
“Trigger
Event” shall have the meaning specified in Section 14.04(c).
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture.
This Indenture is not qualified under the Trust Indenture Act, and the Trust Indenture Act shall not apply to or in any way govern the
terms of this Indenture. As a result, no provisions of the Trust Indenture Act are incorporated into this Indenture unless expressly
incorporated pursuant to this Indenture.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor trustee shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include
each Person who is then a Trustee hereunder.
“unit
of Reference Property” shall have the meaning specified in Section 14.07(a).
“Valuation
Period” shall have the meaning specified in Section 14.04(c).
“Wholly
Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this
definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a
reference to “100%”.
Section
1.02. References to Interest. Unless the context otherwise requires, 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 to any of Section 4.06(d), Section 4.06(e) and Section 6.03. Unless the context otherwise requires, any express mention 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.
Article
2
Issue,
Description, Execution, Registration and Exchange of Notes
Section
2.01. Designation and Amount. The Notes shall be designated as the “2.125% Convertible Senior Notes due 2031.” The
aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $300,000,000,
subject to Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in
lieu of other Notes to the extent expressly permitted hereunder.
Section
2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially
in the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated
in and made a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture and
the Note, the provisions of this Indenture shall control and govern to the extent of such conflict.
Any
Global Note may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Notes are subject.
Any
of the Notes may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer
executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule
or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, or
to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
Each
Global Note shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations,
conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease
in the amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including
the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest
on, a Global Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining
Holders eligible to receive payment is provided for herein.
Section
2.03. Date and Denomination of Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered
form without coupons in minimum denominations of $1,000 principal amount and integral multiples of $1,000 in excess thereof. Each Note
shall be dated the date of its authentication and shall bear interest from the date specified on the face of such Note. Accrued interest
on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis
of the number of days actually elapsed in a 30-day month.
(b)
The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular
Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.
The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company maintained
by the Company for such purposes in the United States, which shall initially be the Corporate Trust Office, and (y) in the case of any
Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary or its nominee. The Company
shall pay interest (i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000
or less, by check mailed to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding
Physical Notes having an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application
by such a Holder to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds
to that Holder’s account within the United States if such Holder has provided the Company, the Trustee and the Paying Agent (if
other than the Trustee) with the requisite information necessary to make such wire transfer, which application shall remain in effect
until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
(c)
Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum
at the rate borne by the Notes from, and including, such relevant payment date, and such Defaulted Amounts together with such interest
thereon shall be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i)
The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed to be paid on
each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee of such notice,
unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a special record date for the
payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment,
and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the
Trustee of such special record date and the Trustee, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Amounts and the special record date therefor to be delivered to each Holder not less than 10 days prior to
such special record date (provided that the Trustee has received such notice at least 10 days prior to such special record date).
Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been so delivered, such Defaulted
Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of
business on such special record date and shall no longer be payable pursuant to the following clause (ii) of this Section 2.03(c).
(ii)
The Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the Trustee.
(iii)
The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Defaulted Amounts, or with
respect to the nature, extent, or calculation of the amount of Defaulted Amounts owed, or with respect to the method employed in such
calculation of the Defaulted Amounts.
Section
2.04. Execution, Authentication and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the
manual, electronic or facsimile signature of at least one (1) duly authorized Officer.
At
any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company
to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder. For
the avoidance of doubt, the Trustee shall not be obligated to authenticate a Note hereunder unless and until it has received a Company
Order and an Officer’s Certificate and Opinion of Counsel of the Company with respect to the issuance, authentication and delivery
of such Note in accordance with the terms hereof.
Only
such Notes as shall bear thereon a certificate of authentication substantially in the form set forth on the Form of Note attached as
Exhibit A hereto, executed manually by an authorized signatory of the Trustee (or an authenticating agent appointed by the Trustee as
provided by Section 17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate
by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so
authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In
case any Officer of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may
be signed on behalf of the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the
Company, although at the date of the execution of this Indenture any such person was not such an Officer.
Section
2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be
kept at the Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company
designated pursuant to Section 4.02, the “Note Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in written form
or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby initially appointed
the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided. The Company may
appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon
surrender for registration of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements
for such transfer set forth in this Section 2.05, the Company shall execute, and 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 denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.
Notes
may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes
to be exchanged at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered
for exchange, the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver, the Notes that
the Holder making the exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
All
Notes presented or surrendered for registration of transfer or for exchange, repurchase, redemption or conversion shall (if so required
by the Company, the Trustee, the Note Registrar or any co-Note Registrar) be duly endorsed, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Note Registrar and the Company and duly executed, by the Holder thereof or its
attorney-in-fact duly authorized in writing.
No
service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange
or registration of transfer of Notes, but the Company, the Trustee or the Note Registrar may require a Holder to pay a sum sufficient
to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder
of new Notes issued upon such exchange or registration of transfer being different from the name of the Holder of the old Notes surrendered
for exchange or registration of transfer.
None
of the Company, the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i)
any Notes surrendered for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for
conversion, (ii) any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or
(iii) any Notes selected for redemption in accordance with Article 16, except the unredeemed portion of any Note being redeemed in part.
All
Notes issued upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations
of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration
of transfer or exchange.
(b)
So long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject to the fourth
paragraph from the end of Section 2.05(c) all Notes shall be represented by one or more Notes in global form, without interest coupons
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary. The transfer and
exchange of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the
Depositary (but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.
(c)
Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c) (together with any
Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d), collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section 2.05(c) (including
the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written consent of the Company,
and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions
on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer” encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.
Until
the date (the “Resale Restriction Termination Date”) that is the later of (1) the date that is one year after the
last date of original issuance of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto,
and (2) such later date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued
in exchange therefor or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend
set forth in Section 2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred
pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective
at the time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then
in force under the Securities Act, or unless otherwise agreed by the Company in writing, with notice thereof to the Trustee):
THIS
SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(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 MARATHON DIGITAL HOLDINGS, 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)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER,
OR
(C)
TO A PERSON REASONABLY BELIEVED TO BE 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
(E)
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) OR (E) 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.
NO
AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF MARATHON DIGITAL HOLDINGS, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF MARATHON DIGITAL HOLDINGS, INC. DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE,
OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.
No
transfer of any Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable
box on the Form of Assignment and Transfer has been checked.
Any
Note (or security issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance
with their terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective
under the Securities Act and that continues to be effective at the time of such transfer or (iii) that has been sold pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender
of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new Note or
Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section 2.05(c) and
shall not be assigned a restricted CUSIP number. The Company shall be entitled to instruct the Custodian in writing to so surrender any
Global Note as to which any of the conditions set forth in clause (i) through (iii) of the immediately preceding sentence have been satisfied,
and, upon such instruction, the Custodian shall so surrender such Global Note for exchange; and any new Global Note so exchanged therefor
shall not bear the restrictive legend specified in this Section 2.05(c) and shall not be assigned a restricted CUSIP number. The Company
shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a registration statement,
if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under the Securities
Act.
Notwithstanding
any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be transferred
as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the second immediately
succeeding paragraph.
The
Depositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company
to act as Depositary with respect to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the
name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.
If
(i) the Depositary notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global
Notes and a successor depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under
the Exchange Act and a successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has
occurred and is continuing and, subject to the Depositary’s applicable procedures, a beneficial owner of any Note requests that
its beneficial interest therein be issued as a Physical Note, the Company shall execute, and the Trustee, upon receipt of an Officer’s
Certificate and a Company Order for the authentication and delivery of Notes, shall authenticate and deliver (x) in the case of clause
(iii), a Physical Note to such beneficial owner in a principal amount equal to the principal amount of such Note corresponding to such
beneficial owner’s beneficial interest and (y) in the case of clause (i) or (ii), Physical Notes to each beneficial owner of the
related Global Notes (or a portion thereof) in an aggregate principal amount equal to the aggregate principal amount of such Global Notes
in exchange for such Global Notes, and upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.
Physical
Notes issued in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or,
in the case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee in writing.
Upon execution and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are
so registered.
At
such time as all interests in a Global Note have been converted, canceled, repurchased, redeemed or transferred, such Global Note shall
be, upon receipt thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary
and the Custodian. At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted,
canceled, repurchased, redeemed or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged
or transferred for part of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures
and instructions existing between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an
endorsement shall be made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction
or increase.
None
of the Company, the Trustee (including in its capacity as Paying Agent) or any agent of the Company or the Trustee shall have any responsibility
or liability to any beneficial owner of a Global Note, a member of, or a participant in, the Depositary or other Person for any aspect
of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Notes (including any transfers between
or among the Depositary participants, members or beneficial owners in any Global Notes) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither
the Company, the Trustee, the Paying Agent nor the Conversion Agent nor any of their respective agents shall have any responsibility
or liability for any act or omission of the Depositary. All notices and communications to be given to the Holders and all payments to
be made to Holders in respect of the Notes shall be given or made only to, or upon the order of, the registered Holder(s) (which shall
be the Depositary or its nominee in the case of a Global Note). None of the Trustee or any agent shall have any responsibility or obligation
to any beneficial owner of an interest in a Global Note, a member of, or a participant in, the Depositary or other Person with respect
to the accuracy of the records of the Depositary or its nominee or of any participant member thereof, with respect to any ownership interest
in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary)
of any notice or the payment of any amount or delivery of any securities or property under or with respect to such Notes.
The
rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable procedures of
the Depositary. The Trustee and each agent may rely and shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.
(d)
Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note shall
bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement
that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer,
or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act,
or such Common Stock has been issued upon conversion of a Note that has transferred pursuant to a registration statement that has become
or been declared effective under the Securities Act and that continues to be effective at the time of such transfer, or pursuant to the
exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise
agreed by the Company with written notice thereof to the Trustee and any transfer agent for the Common Stock):
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF
A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(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 MARATHON DIGITAL HOLDINGS, 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 OF THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED 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)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER,
OR
(C)
TO A PERSON REASONABLY BELIEVED TO BE 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
(E)
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) OR (E) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S
COMMON STOCK RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE
REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Any
such Common Stock (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been
transferred pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues
to be effective at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule
144 or any similar provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares
of Common Stock for exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for a new certificate
or certificates for a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section
2.05(d).
(e)
Any Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by the Company or any Affiliate
of the Company (or any Person who was an Affiliate of the Company at any time during the three months immediately preceding) may not
be resold by the Company or such Affiliate (or such Person, as the case may be) unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common
Stock, as the case may be, no longer being a “restricted security” (as defined under Rule 144). The Company shall cause any
Note that is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.08.
(f)
Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Note Registrar shall be responsible for ascertaining
whether any transfer complies with the registration provisions of, or exemptions from, the Securities Act, applicable state securities
laws or other applicable law.
Section
2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the
Company in its discretion may execute, and upon its receipt of a Company Order, the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant
for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security and/or
indemnity satisfactory to the Company, the Trustee or if applicable, the authenticating agent, as may be required by them to save each
of them harmless from any loss, liability, cost or expense caused by or connected with such substitution, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to such authenticating agent evidence
to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
The
Trustee or such authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of a Company Order
and of such security and/or indemnity as the Trustee, the Company and, if applicable, such authenticating agent may require. No service
charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance
of any substitute Note, but the Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent may require a Holder
to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result
of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that became mutilated
or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase
or redemption or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the Company
may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion
of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment
or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security and/or indemnity
as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, evidence satisfactory to the Company, the Trustee and, if applicable, any Paying Agent
or Conversion Agent evidence of their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.
Every
substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found
at any time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth in) this Indenture equally
and proportionately with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned
upon the express condition that the foregoing provisions are exclusive with respect to the replacement, payment, redemption, conversion
or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, redemption, conversion or repurchase
of negotiable instruments or other securities without their surrender.
Section
2.07. Temporary Notes. Pending the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions,
insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note
shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially
the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall execute and deliver to
the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or all temporary Notes (other
than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by the Company pursuant to Section
4.02 and the Trustee or such authenticating agent shall, upon receipt of a Company Order, authenticate and deliver in exchange for such
temporary Notes an equal aggregate principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense
and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject
to the same limitations under this Indenture as Physical Notes authenticated and delivered hereunder.
Section
2.08. Cancellation of Notes Paid, Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment at
maturity, repurchase, redemption, registration of transfer or exchange or conversion, if surrendered to any Person other than the Trustee
(including the Company or any of the Company’s agents, Subsidiaries or Affiliates, in each case that the Company controls), to
be surrendered to the Trustee for cancellation. All Notes delivered to the Trustee for cancellation shall be canceled promptly by it
in accordance with its customary procedures. Except for any Notes surrendered for registration of transfer or exchange, or as otherwise
expressly permitted by any of the provisions of this Indenture, no Notes shall be authenticated in exchange for any Notes surrendered
to the Trustee for cancellation. The Trustee shall dispose of canceled Notes in accordance with its customary procedures and, after such
disposition, shall deliver evidence of such disposition to the Company, at the Company’s written request in a Company Order.
Section
2.09. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes
or on such notice and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly
notify the Trustee in writing of any change in the “CUSIP” numbers.
Section
2.10. Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen
this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences
in the issue date, the issue price and interest accrued prior to the issue date of such additional Notes) in an unlimited aggregate principal
amount; provided that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal
income tax or securities law purposes, such additional Notes shall have a separate CUSIP number. Prior to the issuance of any such additional
Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, such Officer’s
Certificate and Opinion of Counsel to cover such matters applicable to the issuance of additional Notes, in addition to those required
by Section 17.05. In addition, the Company may, to the extent permitted by law, and, without the consent of or notice to the Holders,
directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise,
whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through counterparties to private
agreements, including by cash-settled swaps or other derivatives. The Company may, at its option, cause any Notes so repurchased to be
surrendered to the Trustee for cancellation in accordance with Section 2.08. Any Notes repurchased by the Company will be considered
outstanding for all purposes under this Indenture (other than voting) unless and until such time the Company surrenders them to the Trustee
for cancellation and, upon receipt of a written order from the Company, the Trustee will cancel all Notes so surrendered. Notwithstanding
the foregoing, the Company shall not reissue or resell any Notes repurchased.
Article
3
Satisfaction
and Discharge
Section
3.01. Satisfaction and Discharge. This Indenture and the Notes shall upon request of the Company contained in an Officer’s
Certificate cease to be of further effect, and the Trustee, at the expense of the Company, shall execute instruments reasonably requested
by the Company acknowledging satisfaction and discharge of this Indenture and the Notes, when (a) (i) all Notes theretofore authenticated
and delivered (other than Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as provided
in Section 2.06) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered
to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, the Repurchase
Date, any Fundamental Change Repurchase Date, upon conversion or otherwise, cash or shares of Common Stock or a combination thereof,
as applicable, solely to satisfy the Company’s Conversion Obligation, sufficient to pay all of the outstanding Notes and all other
sums due and payable under this Indenture by the Company; and (b) the Company has delivered to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.06 shall survive.
Article
4
Particular
Covenants of the Company
Section
4.01. Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal (including
the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest
on, each of the Notes at the places, at the respective times and in the manner provided herein and in the Notes.
Section
4.02. Maintenance of Office or Agency. The Company will maintain in the United States of America, an office or agency where the
Notes may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“Paying Agent”)
or for conversion (“Conversion Agent”) and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be made or served. The Company will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office or any other office or agency in the United States of America so designated by the Trustee as a place where Notes
may be presented for payment or for registration of transfer.
The
Company may also from time to time designate as Paying Agent or Co-Note Registrars one or more other offices or agencies where the Notes
may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that
no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the United
States of America, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The terms “Paying Agent” and “Conversion
Agent” include any such additional or other offices or agencies, as applicable.
The
Company hereby initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate
Trust Office as the office or agency in the United States of America where Notes may be surrendered for registration of transfer or exchange
or for presentation for payment, redemption or repurchase or for conversion and where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be made or served; provided that the Corporate Trust Office shall not be a place for service
of legal process for the Company.
In
acting hereunder and in connection with the Notes, the Paying Agent, Conversion Agent, Custodian, and Note Registrar shall act solely
as agent of the Company and will not assume any fiduciary duty or other obligation towards or relationship of agency or trust for or
with any of the owners or Holders of the Notes.
Section
4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 7.09, a Trustee, so that there shall at all times be a Trustee
hereunder.
Section
4.04. Provisions as to Paying Agent. (a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will
cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.04:
(i)
that it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price, the Repurchase
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the
benefit of the Holders of the Notes;
(ii)
that it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including the Redemption
Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes
when the same shall be due and payable; and
(iii)
that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all
sums so held in trust.
provided,
that a Paying Agent appointed as contemplated under Section 4.02 shall not be required to deliver any such instrument.
The
Company shall, on or before each due date of the principal (including the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient
to pay such principal (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable)
or accrued and unpaid interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure
to take such action; provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent
by 11:00 a.m., New York City time, on such date; provided, further, that to the extent such deposit is received by the Paying
Agent after 11:00 a.m. New York City time, on any such due date, such deposit will be deemed deposited on the next Business Day.
(b)
If the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price,
the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set
aside, segregate and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the
Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so
becoming due and will promptly notify the Trustee in writing of any failure to take such action and of any failure by the Company to
make any payment of the principal (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price,
if applicable) of, or accrued and unpaid interest on, the Notes when the same shall become due and payable.
(c)
Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held in
trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be held by the Trustee upon
the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the Company or such
Paying Agent shall be released from all further liability but only with respect to such sums or amounts.
(d)
Subject to applicable escheatment laws, any money and shares of Common Stock deposited with the Trustee, the Conversion Agent, or any
Paying Agent, or then held by the Company, in trust for the payment of the principal (including the Redemption Price, the Repurchase
Price and the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest on and the consideration due upon conversion
of any Note and remaining unclaimed for two years after such principal (including the Redemption Price, the Repurchase Price and the
Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion has become due and payable shall be
paid to the Company on request of the Company contained in an Officer’s Certificate, or (if then held by the Company) shall be
discharged from such trust and the Trustee, the Conversion Agent or such Paying Agent, as applicable, shall have no further liability
with respect to such funds; 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, the Conversion Agent or such Paying Agent with respect to such trust money and
shares of Common Stock, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee, the Conversion Agent or such Paying Agent, before being required to make any such repayment, may at the expense of
the Company 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, notice that such money and shares of Common Stock remain
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money and shares of Common Stock then remaining will be repaid or delivered to the Company.
Section
4.05. [Reserved].
Section
4.06. Rule 144A Information Requirement and Annual Reports. (a) At any time the Company is not subject to Section 13 or 15(d)
of the Exchange Act, the Company shall, so long as any of the Notes or any shares of Common Stock issuable upon conversion thereof shall,
at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly
provide to the Trustee and, upon written request by a Holder, any Holder, beneficial owner or prospective purchaser of such Notes or
any shares of Common Stock issuable upon conversion of such Notes, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act to facilitate the resale of such Notes or shares of Common Stock pursuant to Rule 144A. The Company shall take
such further action as any Holder or beneficial owner of such Notes or such Common Stock may reasonably request to the extent from time
to time required to enable such Holder or beneficial owner to sell such Notes or shares of Common Stock in accordance with Rule 144A,
as such rule may be amended from time to time.
(b)
The Company shall file with the Trustee, within 15 days after the same are required to be filed with the Commission (giving effect to
any grace period provided by Rule 12b-25 under the Exchange Act and other relief granted by the Commission), copies of any documents
or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any
information, documents or reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission).
Any such document or report that the Company files with the Commission via the Commission’s EDGAR system (or any successor system
thereto) shall be deemed to be filed with the Trustee and the Holders for purposes of this Section 4.06(b) at the time such documents
are filed via the EDGAR system (or each such successor), it being understood that the Trustee shall have no responsibility to determine
if any documents have been filed.
(c)
Delivery of the reports and documents described in subsection (b) above to the Trustee is for informational purposes only, and the Trustee’s
receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively
rely on an Officer’s Certificate). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise,
the Company’s or any other Person’s compliance with the covenants under this Indenture or with respect to any reports or
other documents filed under this Indenture.
(d)
If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original
issuance of the Notes (including any Notes issued pursuant to the Initial Purchasers’ option to purchase additional Notes under
the Purchase Agreement), the Company fails to timely file any document or report that it 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 pursuant to Rule 144 by Holders other than the Company’s
Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately preceding (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
on the Notes. Such Additional Interest shall accrue on the Notes at the rate equal to 0.25% per annum of the principal amount of the
Notes outstanding for each day during such period for which the Company’s failure to file has occurred and is continuing or the
Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were
the Company’s Affiliates at any time during the three months immediately preceding) without restrictions pursuant to U.S. securities
laws or the terms of this Indenture or the Notes. As used in this Section 4.06(d), documents or reports that the Company is required
to “file” with the Commission pursuant to Section 13 or 15(d) of the Exchange Act do not include documents or reports that
the Company furnishes to the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
(e)
If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been removed, the Notes are assigned
a restricted CUSIP number or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s
Affiliates or Holders that were the Company’s Affiliates at any time during the three months immediately preceding (without restrictions
pursuant to U.S. securities laws or the terms of this Indenture or the Notes) as of the “de-legending deadline date” (as
defined below), the Company shall pay Additional Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of
Notes outstanding for each day from, and including, such de-legending deadline date until the restrictive legend on the Notes has been
removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP number and the Notes are freely tradable
pursuant to Rule 144 by Holders other than the Company’s Affiliates (or Holders that were the Company’s Affiliates at any
time during the three months immediately preceding) without restrictions pursuant to U.S. securities laws or the terms of this Indenture
or the Notes; provided, however, that no Additional Interest shall accrue or be owed pursuant to this Section 4.06(e) until the fifteenth
Business Day following written notification to the Company by the Trustee (at the direction of the Holders) or any Holder or beneficial
owner of the Notes (with a copy to the Trustee) requesting that the Company comply with its obligations described in this Section 4.06(e)
(which notice may be given at any time after the 330th day after the last date of original issuance of the Notes), it being
understood and agreed that in no event shall Additional Interest accrue or be owed pursuant to this Section 4.06(e) for any period prior
to the 380th day after the last date of original issuance of the Notes or any additional Notes, as the case may be. The “de-legending
deadline date” means, with respect to the Notes or any additional Notes, the 380th day after the last date of original
issuance of the Notes or such additional Notes, as applicable; provided that if such 380th day is after a Regular Record Date
and on or before the next Interest Payment Date, then the “de-legending deadline date” will instead be the fifth Business
Day immediately after such Interest Payment Date. The restrictive legend on the Notes shall be deemed removed pursuant to the terms of
this Indenture upon notice by the Company to the Trustee and delivery of the documents required pursuant to this Indenture, and, at such
time, the Notes will be automatically assigned an unrestricted CUSIP. However, for the avoidance of doubt, for Notes that are not in
certificated form, the Notes shall continue to bear Additional Interest pursuant to this Section 4.06(e) until such time as such Notes
are identified by an unrestricted CUSIP in the facilities of the Depositary as a result of completion of the Depositary’s mandatory
exchange process or otherwise.
(f)
Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest
on the Notes.
(g)
The Additional Interest that is payable in accordance with Section 4.06(d) or Section 4.06(e) shall be in addition to, and
not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section 6.03;
provided, however, that in no event shall any Additional Interest payable in accordance with Section 4.06(d) as a result
of the Company’s failure to timely file any document or report as set forth therein, when taken together with that of any Additional
Interest payable at the Company’s election pursuant to Section 6.03, accrue at a rate in excess of 0.50% per annum on any Notes,
regardless of the number of events or circumstances giving rise to the requirement to pay such Additional Interest.
(h)
If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall deliver
to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Additional Interest that is payable and (ii)
the date on which such Additional 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. 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. The Trustee shall have no duty to verify the Company’s determination of whether
Additional Interest is due or the Company’s calculations as to the amount of any Additional Interest.
Section
4.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other
law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture;
and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
Section
4.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2024) an Officer’s Certificate stating
whether the signer thereof has knowledge of any Default or Event of Default that has occurred and, if so, specifying each such Default
or Event of Default and the nature thereof.
In
addition, the Company shall deliver to the Trustee, as soon as possible, and in any event within 30 days after the occurrence of any
Event of Default or Default, an Officer’s Certificate setting forth the details of such Event of Default or Default, its status
and the action that the Company is taking or proposing to take in respect thereof; provided that no such Officer’s Certificate
shall be required if such Event of Default or Default has been cured or waived before the date the Company is required to deliver such
Officer’s Certificate.
Section
4.09. Further Instruments and Acts. Upon request of the Trustee, the Paying Agent, or the Conversion Agent or the Note Registrar,
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.
Article
5
Lists
of Holders
Section
5.01. Note Register. The Registrar will keep a record of the names and addresses of the Holders, the Notes held by each Holder
and the transfer, exchange, repurchase, Redemption and conversion of Notes in the Note Register. Absent manifest error, the entries in
the Note Register will be conclusive and the Company and the Trustee may treat each Person whose name is recorded as a Holder in the
Note Register as a Holder for all purposes. The Register will be in written form or in any form capable of being converted into written
form reasonably promptly.
Article
6
Defaults
and Remedies
Section
6.01. Events of Default. Each of the following events shall be an “Event of Default” with respect to the Notes:
(a)
default in any payment of interest on any Note when due and payable, and the default continues for a period of 30 days;
(b)
default in the payment of principal of any Note when due and payable on the Maturity Date, upon Optional Redemption, upon any required
repurchase, upon declaration of acceleration or otherwise;
(c)
failure by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a Holder’s
conversion right and such failure continues for a period of five Business Days;
(d)
failure by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c), notice of a Make-Whole Fundamental
Change in accordance with Section 14.03(b) or notice of a specified corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii),
and, in each case, such failure continues for five days;
(e)
failure by the Company to comply with its obligations under Article 11;
(f)
failure by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding has been received by the Company and the Trustee to comply with any of its other agreements contained in the Notes or
this Indenture (other than a default set forth in paragraphs (a), (b), (c), (d) or (e) above);
(g)
default by the Company or any Significant Subsidiary of the Company with respect to any mortgage, agreement or other instrument under
which there may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $50,000,000
(or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness
now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable prior to its stated
maturity or (ii) constituting a failure to pay the principal of any such debt when due and payable at its stated maturity, upon required
repurchase, upon declaration of acceleration or otherwise, in each case after the expiration of any applicable grace period, if such
acceleration shall not have been rescinded or annulled or such failure to pay or default is not cured or waived, or such acceleration
is not rescinded, within 30 days after written notice to the Company and the Trustee by either the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section 8.04;
(h)
the Company or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due; or
(i)
an involuntary case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking 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 or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of
the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 consecutive days.
The
Trustee shall not be deemed to have notice of any Default or Event of Default (other than a payment Default) unless written notice of
any event which is in fact such Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust
Office of the Trustee and such notice references the Notes, the Company and this Indenture.
Section
6.02. Acceleration; Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever
the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and
in each and every such case (other than an Event of Default specified in Section 6.01(h) or Section 6.01(i) with respect to the Company
and not solely with respect to a Significant Subsidiary of the Company), unless the principal of all of the Notes shall have already
become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding
determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Holders), may (and the
Trustee, at the written request of such Holders, shall) declare 100% of the principal of, and accrued and unpaid interest on, all the
Notes to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due
and payable, anything contained in this Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in
Section 6.01(h) or Section 6.01(i) with respect to the Company (and not solely with respect to one of its Significant Subsidiaries) occurs
and is continuing, 100% of the principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically
be immediately due and payable.
The
immediately preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have
been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered
as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and
unpaid interest upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with
interest on overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable
law, and on such principal at the rate borne by the Notes at such time) and amounts due to the Trustee pursuant to Section 7.06, and
if (1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events
of Default under this Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that
shall have become due solely by such acceleration, shall have been cured, remedied or waived pursuant to Section 6.09, then and in every
such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal amount of the
Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect
to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding
anything to the contrary herein, no such waiver or rescission and annulment shall extend to or shall affect any Default or Event of Default
resulting from (i) the nonpayment of the principal (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase
Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase any Notes when required or (iii)
a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.
Section
6.03. Additional Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary, if the Company so elects,
the sole remedy for an Event of Default relating to the Company’s failure to comply with its obligations as set forth in Section
4.06(b) shall, for the first 360 days after the occurrence of such an Event of Default (which, for the avoidance of doubt, shall not
commence until the notice described in Section 6.01(f) has been given, and the related 60-day period described in such Section 6.01(f)
has passed), consist exclusively of the right to receive Additional Interest on the Notes at a rate equal to (i) 0.25% per annum of the
principal amount of the Notes outstanding for each day during the first 180-day period on which such Event of Default is continuing beginning
on, and including the date on which such an Event of Default first occurs and (ii) 0.50% per annum of the principal amount of the Notes
outstanding for each day during the period from, and including, the 181st day after the occurrence of such Event of Default to, and including,
the 360th day after the occurrence of such Event of Default, during which such Event of Default is continuing. Additional Interest payable
pursuant to this Section 6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d) or
Section 4.06(e); provided, however, that in no event shall the rate of any such Additional Interest payable under this
Section 6.03, when taken together with any such Additional Interest payable pursuant to Section 4.06(d) as a result of the Company’s
failure to timely file any document or report as set forth therein, accrue at a rate in excess of 0.50% per annum on any Note, regardless
of the number of events or circumstances giving rise to the requirement to pay such Additional Interest. If the Company so elects, such
Additional Interest shall be payable in the same manner and on the same dates as the stated interest payable on the Notes. On the 361st
day after such Event of Default (if the Event of Default relating to the Company’s failure to file is not cured or waived prior
to such 361st day), the Notes shall be immediately subject to acceleration as provided in Section 6.02. The provisions of this paragraph
will not affect the rights of Holders of Notes in the event of the occurrence of any Event of Default other than the Company’s
failure to comply with its obligations as set forth in Section 4.06(b). In the event the Company does not elect to pay Additional Interest
following an Event of Default in accordance with this Section 6.03 or the Company has elected to make such payment but does not pay the
Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
In
order to elect to pay Additional Interest as the sole remedy during the first 360 days after the occurrence of any Event of Default described
in the immediately preceding paragraph, the Company must notify in writing all Holders of the Notes, the Trustee and the Paying Agent
of such election prior to the beginning of such 360-day period (which, for the avoidance of doubt, shall not commence until the notice
described in Section 6.01(f) has been given, and the related 60-day period described in such Section 6.01(f) has passed). Upon the failure
to timely give such notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
Section
6.04. Payments of Notes on Default; Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall
have occurred, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole
amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if
any, at the rate borne by the Notes at such time (to the extent such interest on overdue principal and interest is permitted by law),
and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06. If the
Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated.
In
the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the
Notes under Title 11 of the United States Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy
or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such
other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company
or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective
of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and
unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers
or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same
after the deduction of any amounts due to the Trustee in each of its capacities hereunder under Section 7.06; and any receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to
make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee in each of its capacities hereunder any amount due it for reasonable compensation,
expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section
7.06, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances
and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a
lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the
Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All
rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee in each of its capacities
hereunder, its agents and counsel, be for the ratable benefit of the Holders of the Notes.
In
any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make
any Holders of the Notes parties to any such proceedings.
In
case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or
abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason
or shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject
to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies
and powers of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.
Section
6.05. Application of Monies Collected by Trustee. Any monies collected by the Trustee pursuant to this Article 6 with respect
to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies,
upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully
paid:
First,
to the payment of all amounts due to the Trustee in each of its capacities hereunder, including its agents and counsel, under Section
7.06;
Second,
in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of any accrued and unpaid interest
on, and any cash due upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash
due upon conversion, as the case may be, with interest (to the extent that such interest has been collected by the Trustee) upon such
overdue payments at the rate borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;
Third,
in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the
whole amount (including, if applicable, the payment of the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase
Price and any cash due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest on the
overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the
rate borne by the Notes at such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price and any cash due upon conversion) and interest without preference or priority of principal over interest, or
of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note,
ratably to the aggregate of such principal (including, if applicable, the Redemption Price, the Repurchase Price and the Fundamental
Change Repurchase Price and any cash due upon conversion) and accrued and unpaid interest; and
Fourth,
to the payment of the remainder, if any, to the Company.
Section
6.06. Proceedings by Holders. Except to enforce the right to receive payment of principal (including, if applicable, the Redemption
Price, the Repurchase Price and the Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery
of the consideration due upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for
the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a)
such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein
provided;
(b)
Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c)
such Holders shall have offered, and, if requested, provided, to the Trustee such security and/or indemnity satisfactory to it against
any loss, liability or expense to be incurred therein or thereby;
(d)
the Trustee has not complied with such request for 60 days after its receipt of such notice, request and offer of such security and/or
indemnity; and
(e)
no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the
Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.09,
it
being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and Holder
and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all Holders (except as otherwise provided herein), it being understood that the Trustee does not have an affirmative
duty to ascertain whether or not any actions or forbearances by a Holder are prejudicial to other Holders. For the protection and enforcement
of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding
any other provision of this Indenture and any provision of any Note, each Holder shall have the right to receive payment or delivery,
as the case may be, of (x) the principal (including the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase
Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the consideration due upon conversion of, such Note, on
or after the respective due dates expressed or provided for in such Note or in this Indenture, or to institute suit for the enforcement
of any such payment or delivery, as the case may be, and such right to receive such payment or delivery, as the case may be.
Section
6.07. Proceedings by Trustee. In case of an Event of Default, the Trustee may proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by
suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
Section
6.08. Remedies Cumulative and Continuing. Except as provided in the last paragraph of Section 2.06, all powers and remedies given
by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the
Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair
any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and,
subject to the provisions of Section 6.06, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section
6.09. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal
amount of the Notes at the time outstanding determined in accordance with Section 8.04 shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee
with respect to the Notes; provided, however, that (a) such direction shall not be in conflict with any rule of law or
with this Indenture, and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
The Trustee may refuse to follow any direction that it determines is unduly prejudicial to the rights of any other Holder (it being understood
that the Trustee does not have an affirmative duty to ascertain whether or not any actions or forbearances by a Holder are prejudicial
to other Holders) or that would involve the Trustee in personal liability. Prior to taking any such action hereunder, the Trustee shall
be entitled to indemnification and/or security satisfactory to it against all losses, liabilities, expenses caused by taking or not taking
such action. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding (determined in accordance with
Section 8.04 and including waivers obtained in connection with a repurchase or, or tender or exchange offer for, Notes) may on behalf
of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in
the payment of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price, any Repurchase Price and any
Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii)
a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default
in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder
of an outstanding Note affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section
6.09, said Default or Event of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and to be
not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section
6.10. Notice of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of a Default or Event of Default
of which a Responsible Officer has actual knowledge, or, if it is not known to the Trustee at such time, promptly (and in any event within
20 business days) after it becomes known to a Responsible Officer, deliver to all Holders notice of all Defaults and Events of Default
known to a Responsible Officer, unless such Defaults or Events of Default shall have been cured or waived before the giving of such notice;
provided that, except in the case of a Default in the payment of the principal of (including the Redemption Price, the Repurchase
Price and the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default or
Event of Default in the payment or delivery of the consideration due upon conversion, the Trustee shall be protected in withholding such
notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
Section
6.11. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall
be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted
by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or to
any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any
Note (including, but not limited to, the Redemption Price, the Repurchase Price and the Fundamental Change Repurchase Price, if applicable)
on or after the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note,
or receive the consideration due upon conversion, in accordance with the provisions of Article 14.
Article
7
Concerning the Trustee
Section
7.01. Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing
or waiver of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture. In the event an Event of Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the
request or direction of any of the Holders unless such Holders have offered, and, if requested, provided, to the Trustee indemnity and/or
security satisfactory to it against any loss, liability or expense that might be incurred by it in compliance with such request or direction.
No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that:
(a)
prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:
(i)
the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)
in the absence of bad faith and/or willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein);
(b)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c)
the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the written
direction of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined
as provided in Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture;
(d)
whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this Section;
(e)
the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters
relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Note Registrar with respect
to the Notes;
(f)
if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent
to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred,
unless a Responsible Officer of the Trustee had actual knowledge of such event;
(g)
in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing
trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses, fees, taxes or
other charges incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date
or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment
to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder
in the absence of such written investment direction from the Company;
(h)
in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent or transfer agent hereunder,
the rights and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded to such Custodian, Note Registrar,
Paying Agent, Conversion Agent or transfer agent; and
(i)
the rights, privileges, immunities, benefits and protections afforded to the Trustee pursuant to this Article 7 shall also be afforded
to the Trustee in each of its capacities hereunder, and each agent, custodian, and other Person employed to act hereunder, including,
without limitation, in its capacities as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or transfer
agent hereunder;
(j)
the Trustee shall be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of
any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security satisfactory to
the Trustee against any loss, liability or expense that might be incurred by it in compliance with such request or direction;
None
of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers.
Section
7.02. Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a)
the Trustee may conclusively rely and shall be fully protected in acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, coupon or other paper or document believed by it in good faith to be genuine and
to have been signed or presented by the proper party or parties;
(b)
any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee
by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(c)
the Trustee may consult with counsel of its selection and require an Opinion of Counsel and any advice of such counsel or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith
and in reliance on such advice or Opinion of Counsel;
(d)
the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;
(e)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent,
custodian, nominee or attorney appointed by it with due care hereunder
(f)
the permissive rights of the Trustee enumerated herein shall not be construed as duties;
(g)
the Trustee shall not be required to give any bond or surety in respect of the execution of the trusts, powers, and duties under this
Indenture;
(h)
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, which Officer’s Certificate may be signed
by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded;
(i)
[reserved];
(j)
the Trustee shall not be responsible or liable for any action it takes or omits to take in good faith which it reasonably believes to
be authorized or within its rights or powers conferred upon it by this Indenture;
(k)
before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The
Trustee shall not be responsible or liable for any action it takes, suffers or omits to take in good faith in reliance on such Officer’s
Certificate or Opinion of Counsel;
(l)
[reserved];
(m)
neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary; in
no event shall the Trustee be liable or responsible for any punitive, special, indirect, or any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action; and
(n)
the Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible
Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall
have been received by a Responsible Officer of the Trustee at the Corporate Trust Office and such notice references the Notes, the Company
and this Indenture.
(o)
neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to
monitor the performance or any action of the Company, or any of its directors, members, officers, agents, affiliates or employees, nor
shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee shall not be responsible for
any inaccuracy in the information obtained from the Company or for any inaccuracy or omission in the records which may result from such
information or any failure by the Trustee to perform its duties as set forth herein as a result of any inaccuracy or incompleteness;
(p)
notwithstanding anything to the contrary in this Indenture, other than this Indenture and the Notes, the Trustee will have no duty to
know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument, or contract, nor will the
Trustee be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or contract,
whether or not a copy of such agreement has been provided to the Trustee; and
(q)
neither the Trustee nor the Conversion Agent shall be obligated to take possession of any Common Stock, whether upon conversion of Notes
or in connection with any discharge of this Indenture pursuant to Article 3 hereof, but shall satisfy its obligation as Conversion Agent
by working through the stock transfer agent of the Company from time to time as directed by the Company.
Section
7.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the Notes (except in the Trustee’s certificate
of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture, of the Notes or of any Common Stock.
The Trustee shall not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated
and delivered by the Trustee in conformity with the provisions of this Indenture. The Trustee shall not be accountable for the use or
application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture. The Trustee shall have no responsibility or liability with respect to any information, statement or recital
in the Offering Memorandum or other disclosure material prepared or distributed with respect to the issuance of the Notes.
Section
7.04. Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes. The Trustee, any Paying
Agent, any Conversion Agent, Bid Solicitation Agent (if other than the Company or any Affiliate thereof) or Note Registrar, in its individual
or any other capacity, may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee, Paying
Agent, Conversion Agent, Bid Solicitation Agent or Note Registrar.
Section
7.05. Monies and Shares of Common Stock to Be Held in Trust. All monies and shares of Common Stock 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 and shares of Common
Stock held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money or shares of Common Stock received by it hereunder except as may be agreed from
time to time by the Company and the Trustee.
Section
7.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder in any capacity (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in writing between the
Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any capacity thereunder
(including the reasonable compensation and the expenses and disbursements of its agents and counsel and of all Persons not regularly
in its employ) except any such expense, disbursement or advance as shall have been caused by its gross negligence or willful misconduct
(as adjudicated in a final non-appealable decision by a court of competent jurisdiction). The Company also covenants to indemnify the
Trustee (which for purposes of this Section 7.06 shall include its officers, directors, employees, agents, successors and assigns) in
any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents and any authenticating
agent for, and to hold them harmless against, any loss, claim, damage, liability or expense (including reasonable and documented out-of-pocket
attorneys’ fees) incurred without gross negligence or willful misconduct on the part of the Trustee, its officers, directors, agents,
employees, successors or assigns, or such agent or authenticating agent, as the case may be (as adjudicated in a final non-appealable
decision by a court of competent jurisdiction), and arising out of or in connection with the acceptance or administration of this Indenture
or in any other capacity hereunder (whether such claims arise by or against the Company or a third person), including the costs and expenses
of defending themselves against any claim of liability (including, without limitation any and all reasonable and documented out-of-pocket
attorneys’ fees and expenses) or enforcing the Company’s obligations hereunder. The obligations of the Company under this
Section 7.06 to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee,
except, subject to the effect of Section 6.05, funds held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s
right to receive payment of any amounts due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of
the Company and to secure the Company’s payment obligations under this Section 7.06, the Trustee shall have a lien prior to the
Notes on all money or property held or collected by the Trustee, in its capacity as the Trustee, other than money or property held in
trust to pay principal of and interest, if any, on particular Notes. The obligation of the Company under this Section 7.06 shall survive
the satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee. The Company need not pay for
any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this Section
7.06 shall extend to the officers, directors, agents and employees of the Trustee and any successor Trustee hereunder.
Without
prejudice to any other rights available to the Trustee under applicable law, when the Trustee and its agents and any authenticating agent
incur expenses or render services after an Event of Default specified in Section 6.01(h) or Section 6.01(i) occurs, the expenses and
the compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.
Section
7.07. Officer’s Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the
absence of gross negligence or willful misconduct on the part of the Trustee, be deemed to be conclusively proved and established by
an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate, in the absence of gross negligence or
willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions
of this Indenture upon the faith thereof.
Section
7.08. Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus
of at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any
supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section
7.09. Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving written notice of such resignation to
the Company and by delivering notice thereof to the Holders. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the giving of such notice of resignation to the Holders, the resigning Trustee may, at
the expense of the Company, upon ten Business Days’ notice to the Company and the Holders, petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months
(or since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all others
similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any of the following shall occur:
(i)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(ii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then,
in either case, the Company may by a Board Resolution remove the Trustee and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona fide holder of a Note or Notes for
at least six months (or since the date of this Indenture) may, on behalf of himself or herself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c)
The Holders of a majority in aggregate principal amount of the Notes at the time outstanding, as determined in accordance with Section
8.04, may at any time remove the Trustee and nominate a successor trustee that shall be deemed appointed as successor trustee unless
within ten days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or any
Holder, upon the terms and conditions and otherwise as in Section 7.09(a) provided and at the expense of the Company, may petition any
court of competent jurisdiction for an appointment of a successor trustee.
(d)
Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this Section 7.09
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.10.
Section
7.10. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 7.09 shall execute, acknowledge
and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to
act shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument transferring
to such successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any such successor trustee, the
Company shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a senior claim to which the Notes are hereby made
subordinate on all money or property held or collected by such trustee as such, except for funds held in trust for the benefit of Holders
of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No
successor trustee shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 7.08.
Upon
acceptance of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at
the written direction and at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee
hereunder to the Holders. If the Company fails to deliver such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be delivered at the expense of the Company.
Section
7.11. Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee
(including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity
succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible
under the provisions of Section 7.08.
In
case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee
or authenticating agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any
of the Notes shall not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee
may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor
trustee or to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
Section
7.12. Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from
the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights
of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application (which date shall not be less than three Business Days
after the date any officer that the Company has indicated to the Trustee should receive such application actually receives such application,
unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective
date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response
to such application specifying the action to be taken or omitted.
Article
8
Concerning the Holders
Section
8.01. Action by Holders. Whenever in this Indenture it is provided that the Holders of a specified percentage of the aggregate
principal amount of the Notes may take any action (including the making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by Holders in person
or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting of Holders duly
called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by the Holders of the Notes,
the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as the record date for determining
Holders entitled to take such action. The record date if one is selected shall be not more than fifteen days prior to the date of commencement
of solicitation of such action.
Section
8.02. Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section 7.02 and Section 9.05, proof of the execution
of any instrument by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by
the Note Register or by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided
in Section 9.06.
Section
8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent
and any Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as,
the absolute owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing
thereon made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the
principal (including any Redemption Price, any Repurchase Price and any Fundamental Change Repurchase Price) of and (subject to Section
2.03) accrued and unpaid interest on such Note, for conversion of such Note and for all other purposes; and neither the Company nor the
Trustee nor any Paying Agent nor any Conversion Agent nor any Note Registrar shall be affected nor incur any liability by any notice
to the contrary. The sole registered Holder of a Global Note shall be the Depositary or its nominee. All such payments or deliveries
so made to any Holder for the time being, or upon its order, shall be valid, and, to the extent of the sums or shares of Common Stock
so paid or delivered, effectual to satisfy and discharge the liability for monies payable or shares deliverable upon any such Note. Notwithstanding
anything to the contrary in this Indenture or the Notes following an Event of Default, any holder of a beneficial interest in a Global
Note may directly enforce against the Company, without the consent, solicitation, proxy, authorization or any other action of the Depositary
or any other Person, such holder’s right to exchange such beneficial interest for a Note in certificated form in accordance with
the provisions of this Indenture.
Section
8.04. Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes
have concurred in any direction, consent, waiver or other action under this Indenture, Notes that are owned by the Company, by any Subsidiary
thereof or by any Affiliate of the Company or any Subsidiary thereof shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are so owned shall be so disregarded.
Notes so owned that have been pledged in good faith may be regarded as outstanding for the purposes of this Section 8.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee’s right to so act with respect to such Notes and that the pledgee
is not the Company, a Subsidiary thereof or an Affiliate of the Company or a Subsidiary thereof. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Notes, if any, known by
the Company to be owned or held by or for the account of any of the above described Persons; and, subject to Section 7.01, the Trustee
shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Notes not listed therein are outstanding for the purpose of any such determination.
Section
8.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the Holders of the percentage of the aggregate principal amount of the Notes specified
in this Indenture in connection with such action, any Holder of a Note that is shown by the evidence to be included in the Notes the
Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust Office and upon
proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid, any such action taken
by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Note and of
any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether any notation
in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of transfer thereof.
Article
9
Holders’ Meetings
Section
9.01. Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of
this Article 9 for any of the following purposes:
(a)
to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture, or to consent
to the waiving of any Default or Event of Default hereunder (in each case, as permitted under this Indenture) and its consequences, or
to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;
(b)
to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article 7;
(c)
to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d)
to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes
under any other provision of this Indenture or under applicable law.
Section
9.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section
9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth
the time and the place of such meeting and in general terms the action proposed to be taken at such meeting and the establishment of
any record date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company.
Such notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any
meeting of Holders shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either
present by duly authorized representatives or have, before or after the meeting, waived notice.
Section
9.03. Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders
of at least 10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of
Holders, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall
not have delivered the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine
the time and the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by delivering notice
thereof as provided in Section 9.02.
Section
9.04. Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more
Notes on the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of
one or more Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section
9.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as
it may deem advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Holders of a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote at the
meeting.
Subject
to the provisions of Section 8.04, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in writing as aforesaid duly
designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant to the provisions of Section
9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate principal amount of Notes represented
at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section
9.06. Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed
the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was delivered as provided in Section 9.02. The record shall show the aggregate principal amount of the Notes
voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any
record so signed and verified shall be conclusive evidence of the matters therein stated.
Section
9.07. No Delay of Rights by Meeting. Nothing contained in this Article 9 shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance
or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions
of this Indenture or of the Notes.
Article
10
Supplemental Indentures
Section
10.01. Supplemental Indentures Without Consent of Holders. The Company, when authorized by the resolutions of the Board of Directors
and the Trustee, at the Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a)
to cure any ambiguity, omission, defect or inconsistency;
(b)
to provide for the assumption by a Successor Company of the obligations of the Company under this Indenture and the Notes pursuant to
Article 11;
(c)
to add guarantees with respect to the Notes;
(d)
to secure the Notes;
(e)
to add to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred
upon the Company;
(f)
to make any change that does not adversely affect the rights of any Holder;
(g)
in connection with any Share Exchange Event, to provide that the Notes are convertible into Reference Property, subject to the provisions
of Section 14.02, and make such related changes to the terms of the Notes to the extent expressly required by Section 14.07;
(h)
to conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Offering Memorandum;
(i)
to increase the Conversion Rate as provided in this Indenture;
(j)
to provide for the issuance of additional Notes in accordance with the limitations set forth in this Indenture;
(k)
to provide for the acceptance of appointment by a successor trustee, registrar, paying agent, bid solicitation agent or conversion agent
or facilitate the administration of the trusts under this Indenture by more than one trustee or paying agent;
(l)
to irrevocably elect or eliminate one of the Settlement Methods and/or irrevocably elect a Specified Dollar Amount to the extent that
no election or deemed election of any Settlement Method or Specified Dollar Amount has been effected, all as described in Section 14.02(a)(iii)(B);
or
(m)
to comply with the rules of any applicable securities depositary in a manner that does not adversely affect the rights of any Holder.
Upon
the written request of the Company, and subject to Section 10.05, the Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to, but may in its discretion, enter into any supplemental indenture that affects the Trustee’s
own rights, duties, privileges, liabilities, indemnities or immunities under this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section 10.01 may be executed by the Company and the Trustee without the
consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.
Section
10.02. Supplemental Indentures with Consent of Holders. With the consent (evidenced as provided in Article 8) of the Holders of
at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article 8 and including,
without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the Company, when
authorized by the resolutions of the Board of Directors and the Trustee, at the Company’s expense, may from time to time and at
any time 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 any supplemental indenture or of modifying in any manner the rights of the
Holders; provided, however, that, without the consent of each Holder of an outstanding Note affected, no such supplemental
indenture shall:
(a)
reduce the amount of Notes whose Holders must consent to an amendment;
(b)
reduce the rate of or extend the stated time for payment of interest on any Note;
(c)
reduce the principal of or extend the Maturity Date of any Note;
(d)
make any change that adversely affects the conversion rights of any Notes;
(e)
reduce the Redemption Price, the Repurchase Price or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner
adverse to the Holders the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in
the covenants, definitions or otherwise;
(f)
make any Note payable in a currency, or at a place of payment, other than that stated in the Note;
(g)
change the ranking of the Notes in any manner adverse to Holders;
(h)
impair the right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
or
(i)
make any change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.02 or Section 6.09.
Upon
the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject
to Section 10.05, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties, privileges, liabilities, indemnities or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
Holders
do not need under this Section 10.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient if
such Holders approve the substance thereof. After any such supplemental indenture becomes effective, the Company shall send to the Holders
a notice briefly describing such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in
the notice, will not impair or affect the validity of the supplemental indenture.
Section
10.03. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture pursuant to the provisions of this
Article 10, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation
of rights, obligations, privileges, duties, indemnities and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all
the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section
10.04. Notation on Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article 10 may, at the Company’s expense, bear a notation in a form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture
may, at the Company’s expense, be prepared and executed by the Company, authenticated, upon receipt of a Company Order, by the
Trustee (or an authenticating agent duly appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes
then outstanding, upon surrender of such Notes then outstanding.
Section
10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished Trustee. In addition to the documents required by Section
17.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized by this Indenture
and that such supplemental indenture constitutes the legal valid and binding obligation of the Company enforceable in accordance with
its terms, subject to customary exceptions and qualifications. The Trustee shall have no responsibility for determining whether any amendment
or supplemental indenture will or may have an adverse effect on any Holder.
Article
11
Consolidation, Merger, Sale, Conveyance and Lease
Section
11.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 11.02, the Company shall not consolidate
with, merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person
(other than any such sale, conveyance, transfer or lease to one or more of the Company’s direct or indirect Wholly Owned Subsidiaries),
unless:
(a)
the Company is the surviving corporation (in the case of a consolidation or merger) or the resulting, surviving or transferee Person
(the “Successor Company”), if not the Company, is, or, if such Person is treated as a disregarded entity for U.S.
federal income tax purposes, its regarded owner is treated as, for U.S. federal income tax purposes, a corporation organized and existing
under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company (if not the
Company) shall expressly assume, by supplemental indenture all of the obligations of the Company under the Notes and this Indenture;
and
(b)
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under this
Indenture.
For
purposes of this Section 11.01, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one
or more Subsidiaries of the Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be
the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company to another Person.
Section
11.02. Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease
and upon the assumption by the Successor 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 accrued and unpaid interest on all of the Notes, the due
and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be performed by the Company, such Successor Company (if not the
Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets,
shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor
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 written 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 any such consolidation, merger, sale, conveyance
or transfer (but not in the case of a lease), upon compliance with this Article 11 the Person named as the “Company” in the
first paragraph of this Indenture (or any successor that shall thereafter have become such in the manner prescribed in this Article 11)
may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from
its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.
In
case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance)
may be made in the Notes thereafter to be issued as may be appropriate.
Section
11.03. Officer’s Certificate and Opinion of Counsel to Be Given to Trustee. No such consolidation, merger, sale, conveyance,
transfer or lease shall be effective unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or lease 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 Article 11.
Article
12
Immunity of Incorporators, Stockholders, Officers and Directors
Section
12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid
interest on any Note, nor for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any Note, nor because of the creation of
any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, Officer or director or Subsidiary,
as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Notes.
Article
13
Intentionally Omitted
Article
14
Conversion of Notes
Section
14.01. Conversion Privilege. (a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note
shall have the right, at such Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal
amount or an integral multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at
any time prior to the close of business on the Business Day immediately preceding March 1, 2031 under the circumstances and during the
periods set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), on or after March 1, 2031
and prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, at an initial
conversion rate of 52.9451 shares of Common Stock (subject to adjustment as provided in this Article 14, the “Conversion Rate”)
per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement provisions of Section 14.02, the “Conversion
Obligation”).
(b)
(i) Prior to the close of business on the Business Day immediately preceding March 1, 2031, a Holder may surrender all or any portion
of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day period
(the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined following
a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period was less than
98% of the product of the Last Reported Sale Price of the Common Stock on each such Trading Day and the Conversion Rate on each such
Trading Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition
of Trading Price set forth in this Indenture. 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 pursuant to the definition of Trading
Price, along with appropriate contact information for each. The Bid Solicitation Agent (if other than the Company) shall have no obligation
to determine the Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination, and the Company
shall have no obligation to make such request (or, if the Company is acting as Bid Solicitation Agent, the Company shall have no obligation
to determine the Trading Price per $1,000 principal amount of Notes) unless a Holder of at least $1,000,000 aggregate principal amount
of Notes requests in writing that the Company make such a determination and provides the Company with reasonable evidence that the Trading
Price per $1,000 principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of
the Common Stock on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct three nationally
recognized securities dealers to deliver bids and instruct the Bid Solicitation Agent (if other than the Company) to determine, or if
the Company is acting as Bid Solicitation Agent, the Company shall determine, the Trading Price per $1,000 principal amount of Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is
greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company
is not acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent to determine the Trading Price
per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation
Agent to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid Solicitation
Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either case, the
Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price
of the Common Stock and the Conversion Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been
met, the Company shall so notify in writing the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any
time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater
than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company
shall so notify in writing the Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).
(ii)
If, prior to the close of business on the Business Day immediately preceding March 1, 2031, the Company elects to:
(A)
issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder
rights plan so long as such rights have not separated from the shares of the Common Stock) entitling them, for a period of not more than
45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per
share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B)
distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase
securities of the Company (other than pursuant to a stockholder rights plan so long as such rights have not separated from the
shares of the Common Stock), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding
10% of the Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution,
then,
in either case, the Company shall notify in writing all Holders of the Notes, the Trustee and the Conversion Agent (if other than
the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution (or, if later in the
case of any such separation of rights issued pursuant to a stockholder rights plan, no later than the Business Day after the Company
becomes aware that such separation has occurred or will occur); provided, however, that if the Company elects Physical
Settlement (to the extent that the Company has not elected another Settlement Method to apply, including pursuant to Section 14.02)
in the applicable notice in respect of any conversions that occurs from, and including, the date the Company provides such notice
to, and including, the close of business on the Business Day immediately preceding the Ex-Dividend Date for such distribution or
issuance (or, if earlier, the date the Company announces that such issuance or distribution will not take place) (the
“Distribution Trigger Irrevocable Physical Settlement Period”), the Company shall be permitted to provide no less
than 10 Scheduled Trading Days’ notice prior to the Ex-Dividend Date for the applicable issuance or distribution, in which
case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the Distribution
Trigger Irrevocable Physical Settlement Period by Physical Settlement, and the Company shall describe the same in such notice. Once
the Company has given such notice, a Holder may surrender all or any portion of its Notes for conversion at any time until the
earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend Date for such issuance or
distribution and (2) the Company’s announcement that such issuance or distribution will not take place, in each case, even if
the Notes are not otherwise convertible at such time. Notwithstanding the foregoing, Holders may not convert their Notes under this
Section 14.01(b)(ii) if they participate (other than in the case of a share split or share combination) at the same time and upon
the same terms as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described
under this Section 14.01(b)(ii)(A) or (B) without having to convert their Notes as if they held a number of shares of Common Stock
equal to the then-effective Conversion Rate multiplied by the principal amount (expressed in thousands) of Notes held by such
Holder. Neither the Trustee not the Conversion Agent shall have any duty to determine or verify the Company’s determination of
whether an issuance or distribution described in this clause (ii) has occurred.
(iii)
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 March 1, 2031, regardless of whether a Holder has the right to require the Company to repurchase
the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than a Share Exchange Event that is
solely for the purpose of changing the Company’s jurisdiction of organization that does not constitute a Fundamental Change or
Make-Whole Fundamental Change) that occurs prior to the close of business on the Business Day immediately preceding March 1, 2031, in
each case, pursuant to which the Common Stock would be converted into cash, securities or other assets, all or any portion of a Holder’s
Notes may be surrendered for conversion at any time from or after the effective date of the transaction until the earlier of (x) 35 Trading
Days after the effective date of such transaction or, if such transaction also constitutes a Fundamental Change, until the close of business
on the Business Day immediately preceding the related Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately
preceding the Maturity Date. The Company shall notify in writing Holders, the Trustee and the Conversion Agent (if other than the Trustee)
no later than the effective date of such transaction. Neither the Trustee nor the Conversion Agent shall have any duty to determine or
verify the Company’s determination of whether a Fundamental Change or a Make-Whole Fundamental Change has occurred.
(iv)
Prior to the close of business on the Business Day immediately preceding March 1, 2031, a Holder may surrender all or any portion of
its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on December 31, 2024 (and
only during such calendar quarter), if the Last Reported 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, and including, the last Trading Day of the immediately preceding
calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. The Company shall determine
at the beginning of each calendar quarter commencing after December 31, 2024 whether the Notes may be surrendered for conversion in accordance
with this clause (iv) and shall provide written notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee)
if the Notes become convertible in accordance with this clause (iv). Neither the Trustee nor the Conversion Agent shall have any duty
to determine or verify the Company’s determination of whether the condition set forth in this clause (iv) has been met.
(v)
If the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business Day
immediately preceding March 1, 2031, then a Holder may surrender all or any part of such of its Notes as called for redemption for conversion
at any time prior to the close of business on the second Scheduled Trading Day prior to the Redemption Date, even if the Notes are not
otherwise convertible at such time. After that time, the right to convert such Notes pursuant to this Section 14.01(b)(v) shall expire,
unless the Company defaults in the payment of the Redemption Price, in which case a Holder of Notes may convert its Notes until the Redemption
Price has been paid or duly provided for.
Section
14.02. Conversion Procedure; Settlement Upon Conversion.
(a)
Subject to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver,
as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash
Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common
Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination of cash and
shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock in accordance with
subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set forth in this Section 14.02.
(i)
All conversions (x) for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect
to the Notes and prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption Date
(y) for which the relevant Conversion Date occurs on or after March 1, 2031 and (z) following the Company’s irrevocable election
of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case shall be settled using the same Settlement Method.
(ii)
Except (w) for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice
with respect to the Notes but prior to the close of business on the second Scheduled Trading Day immediately preceding the related Redemption
Date, (x) for any conversions for which the relevant Conversion Date occurs on or after March 1, 2031, (y) to the extent the Company
elects Physical Settlement to apply pursuant to Section 14.01(b)(ii) and (z) for any conversions following the Company’s irrevocable
election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), in each case the Company shall use the same Settlement Method for
all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same Settlement Method with respect
to conversions with different Conversion Dates.
(iii)
(A) Subject to the Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), if, in respect of
any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the case may be), the
Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method in respect of such
Conversion Date (or such period, as the case may be), the Company, shall deliver such Settlement Notice to the Trustee and the Conversion
Agent (if other than the Trustee) and the converting Holders no later than the close of business on the Trading Day immediately following
the relevant Conversion Date (or, in the case of any conversions of any Notes (x) for which the relevant Conversion Date occurs (A) on
or after the date of issuance of a Redemption Notice with respect to the Notes and prior to the close of business on the second Scheduled
Trading Day immediately preceding the related Redemption Date, in such Redemption Notice or (B) on or after March 1, 2031, no later than
the close of business on the Business Day immediately preceding March 1, 2031 or (y) for which the Company has irrevocably elected Physical
Settlement pursuant to Section 14.01(b)(ii), in the related notice described therein). If the Company does not elect a Settlement Method
prior to the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement
or Physical Settlement with respect to the relevant Conversion Date (or such period, as the case may be) 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 shall be equal to $1,000. Such Settlement Notice shall specify the relevant Settlement Method and in the case of an election
of Combination Settlement, the relevant Settlement Notice shall indicate the Specified Dollar Amount per $1,000 principal amount of Notes.
If the Company delivers a Settlement Notice electing Combination Settlement in respect of its Conversion Obligation but does not indicate
a Specified Dollar Amount per $1,000 principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal
amount of Notes shall be deemed to be $1,000.
(B)
By notice to the Holders, the Trustee and the Conversion Agent (if other than the Trustee), the Company may prior to the close of business
on the Scheduled Trading Day immediately preceding March 1, 2031, at its option, irrevocably elect to satisfy its Conversion Obligation
with respect to the Notes through Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of at least
$1,000 for all Conversion Dates occurring subsequent to the delivery of such notice and for which another Settlement Method does not
otherwise apply. If the Company irrevocably elects Combination Settlement with an ability to continue to set the Specified Dollar Amount
per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of such election, either post the
fixed Settlement Method on the Company’s website or disclose the same in a current report on Form 8-K (or any successor form) that
is filed with the Commission (and make such determination of such Specified Dollar Amount on or prior to the dates set forth above in
respect of a Combination Settlement as if an irrevocable election had not otherwise occurred, or if the Company does not make such determination
by such date the Specified Dollar Amount shall be $1,000 per $1,000 principal amount of Notes).
(iv)
The cash, shares of Common Stock or combination of cash and shares of Common Stock payable or deliverable by the Company in respect of
any conversion of Notes (the “Settlement Amount”) shall be computed as follows:
(A)
if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company shall deliver
to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal
to the Conversion Rate in effect on the Conversion Date (plus cash in lieu of any fractional share of Common Stock issuable upon conversion
pursuant to Section 14.02(j));
(B)
if the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay to
the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum of the Daily
Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and
(C)
if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted,
a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the related Observation
Period (plus cash in lieu of any fractional share of Common Stock issuable upon conversion pursuant to Section 14.02(j)).
(v)
The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly
following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion
Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock, the Company shall
notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the Daily Conversion Values,
as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock. The Trustee and the Conversion
Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b)
Subject to Section 14.02(e), before any Holder of a Note shall be entitled to convert a Note as set forth above, such Holder shall (i)
in the case of a Global Note, comply with the procedures of the Depositary in effect at that time and, if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h) and, if required,
pay all transfer or similar taxes, if any, and (ii) in the case of a Physical Note (1) complete, manually sign and deliver an irrevocable
notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile or electronic communication in PDF format)
(a “Notice of Conversion”) at the Corporate Trust Office or the office of the Conversion Agent (if other than the
Trustee) and state in writing therein the principal amount of Notes to be converted and the name or names (with addresses) in which such
Holder wishes the certificate or certificates for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation
to be registered, (2) surrender such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and
transfer documents), at the Corporate Trust Office or the office of the Conversion Agent (if other than the Trustee), (3) if required,
furnish appropriate endorsements and transfer documents, (4) if required, pay funds equal to interest payable on the next Interest Payment
Date to which such Holder is not entitled as set forth in Section 14.02(h) and (5) if required, pay all transfer or similar taxes, if
any. The Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the
Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such
Holder has also delivered a Repurchase Notice or Fundamental Change Repurchase Notice to the Company in respect of such Notes and has
not validly withdrawn such Repurchase Notice or Fundamental Change Repurchase Notice, as the case may be, in accordance with Section
15.03.
If
more than one Note shall be surrendered for conversion at one time by the same Holder, the Conversion Obligation with respect to such
Notes shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted
thereby) so surrendered.
(c)
A Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion Date”)
that the Holder has complied with the requirements set forth in subsection (b) above. Except as set forth in Section 14.03(b) and
Section 14.07(a), the Company shall pay or deliver, as the case may be, the consideration due in respect of the Conversion Obligation
on the second Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement (provided
that, with respect to any conversion following the Regular Record Date immediately preceding the Maturity Date where Physical Settlement
applies, the Company shall settle any such conversion on the Maturity Date or, if the Maturity Date is not a Business Day, the next succeeding
Business Day, and the Conversion Date shall be deemed to be the second Business Day immediately before such date), or on the second Business
Day immediately following the last Trading Day of the Observation Period, in the case of any other Settlement Method. If any shares of
Common Stock are due to a converting Holder, the Company shall issue or cause to be issued, and deliver (if applicable) to the Conversion
Agent or to such Holder, or such Holder’s nominee or nominees, the full number of shares of Common Stock to which such Holder shall
be entitled, in book-entry format through the Depositary, in satisfaction of the Company’s Conversion Obligation.
(d)
In case any Note shall be surrendered for partial conversion, the Company shall execute and upon receipt of a Company Order, the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service
charge by the converting Holder but, if required by the Company, the Conversion Agent or Trustee, with payment of a sum sufficient to
cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or that may be imposed in
connection therewith as a result of the name of the Holder of the new Notes issued upon such conversion being different from the name
of the Holder of the old Notes surrendered for such conversion.
(e)
If a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the issue
of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to be issued in a name other
than the Holder’s name, in which case the Holder shall pay that tax. The Conversion Agent may refuse to deliver the certificates
representing the shares of Common Stock being issued in a name other than the Holder’s name until the Trustee receives a sum sufficient
to pay any tax that is due by such Holder in accordance with the immediately preceding sentence.
(f)
Except as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion
of any Note as provided in this Article 14.
(g)
Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make a notation
on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing
of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h)
Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below.
The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal
amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued
and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than cancelled,
extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued and unpaid interest
will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after
the close of business on a Regular Record Date but prior to the open of business on the immediately following Interest Payment Date,
Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such
Notes on the corresponding Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from
the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied
by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1)
for conversions following the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption
Date that is after a Regular Record Date and on or prior to the second Scheduled Trading Day immediately following the corresponding
Interest Payment Date; (3) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and
on or prior to the Business Day immediately following the corresponding Interest Payment Date; or (4) to the extent of any Defaulted
Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for the avoidance of doubt,
all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity Date, a Fundamental Change
Repurchase Date or a Redemption Date shall receive the full interest payment due on the Maturity Date, the Fundamental Change Repurchase
Date or the Redemption Date in cash regardless of whether their Notes have been converted following such Regular Record Date and the
converting Holder shall not be required to make a corresponding payment.
(i)
The Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as
of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related Conversion Obligation by Physical
Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects to satisfy the related Conversion Obligation
by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered
for conversion.
(j)
The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering
any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date (in the case of
Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in the case of Combination
Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that
shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation
Period and any fractional shares remaining after such computation shall be paid in cash.
Section
14.03. Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Redemption
Notice. (a) If (i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (ii) the Company issues
a Redemption Notice pursuant to Section 16.02 with respect to any or all of the Notes and, in each case, a Holder elects to convert its
Notes in connection with such Make-Whole Fundamental Change or a Redemption Notice, as applicable, the Company shall, in each case, under
the circumstances described below, 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 below. A conversion of Notes shall be deemed for these
purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant Notice of Conversion is received by
the Conversion Agent from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the Business
Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would
have been a Fundamental Change but for clause (i) of the proviso in clause (b) of the definition thereof, the 35th Trading Day
immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole Fundamental Change
Period”). A conversion of Notes shall be deemed for these purposes to be “in connection with” a Redemption Notice
if the Notice of Conversion is received by the Conversion Agent from, and including the date of the Redemption Notice until the close
of business on the second Scheduled Trading Day immediately preceding the Redemption Date.
(b)
Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii) or a Redemption
Notice pursuant to Section 14.01(b)(v), the Company shall, at its option, satisfy the related Conversion Obligation by Physical Settlement,
Cash Settlement or Combination Settlement in accordance with Section 14.02; provided, however, that if, at the effective
time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Reference Property following
such Make-Whole Fundamental Change is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole
Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed
to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any adjustment for Additional
Shares), multiplied by such Stock Price. In such event, the Conversion Obligation shall be paid to Holders in cash on the second
Business Day immediately following the Conversion Date. The Company shall notify in writing the Holders, the Trustee and the Conversion
Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change and issue a press release announcing such
Effective Date no later than five Business Days after such Effective Date.
(c)
The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table
below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective, or the date of the Redemption Notice,
as the case may be (in each case, the “Effective Date”) and the price paid (or deemed to be paid) per share of the
Common Stock in the Make-Whole Fundamental Change or determined with respect to the Optional Redemption, as the case may be (the “Stock
Price”). If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental
Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share. Otherwise,
the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on,
and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change or the date of the Redemption
Notice, as the case may be. In the event that a conversion in connection with a Redemption Notice would also be deemed to be in connection
with a Make-Whole Fundamental Change, a Holder of the Notes to be converted shall be entitled to a single increase to the Conversion
Rate with respect to the first to occur of the date of the applicable Redemption Notice or the Effective Date of the applicable Make-Whole
Fundamental Change, and the later event shall be deemed not to have occurred for purposes of this Section 14.03. The Company shall make
appropriate adjustments to the Stock Price, in its good faith determination, to account for any adjustment to the Conversion Rate that
becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date (as such term
is used in Section 14.04) or expiration date of the event occurs during such five consecutive Trading Day period.
(d)
The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate is
otherwise 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 the table
below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth in Section 14.04.
(e)
The following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal amount
of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:
| |
Stock Price | |
Effective Date | |
$15.11 | | |
$17.00 | | |
$18.89 | | |
$21.00 | | |
$24.55 | | |
$30.00 | | |
$40.00 | | |
$60.00 | | |
$80.00 | | |
$100.00 | | |
$125.00 | |
August 14, 2024 | |
| 13.2362 | | |
| 10.9871 | | |
| 8.8549 | | |
| 7.0929 | | |
| 5.0640 | | |
| 3.2243 | | |
| 1.6013 | | |
| 0.4798 | | |
| 0.1301 | | |
| 0.0102 | | |
| 0.0000 | |
September 1, 2025. | |
| 13.2362 | | |
| 10.9871 | | |
| 8.8549 | | |
| 7.0929 | | |
| 5.0297 | | |
| 3.1303 | | |
| 1.5143 | | |
| 0.4428 | | |
| 0.1178 | | |
| 0.0088 | | |
| 0.0000 | |
September 1, 2026 | |
| 13.2362 | | |
| 10.9871 | | |
| 8.8549 | | |
| 6.9781 | | |
| 4.7597 | | |
| 2.8730 | | |
| 1.3433 | | |
| 0.3783 | | |
| 0.0954 | | |
| 0.0049 | | |
| 0.0000 | |
September 1, 2027 | |
| 13.2362 | | |
| 10.9871 | | |
| 8.6151 | | |
| 6.5138 | | |
| 4.2892 | | |
| 2.4947 | | |
| 1.1233 | | |
| 0.3032 | | |
| 0.0705 | | |
| 0.0023 | | |
| 0.0000 | |
September 1, 2028 | |
| 13.2362 | | |
| 10.5353 | | |
| 7.7210 | | |
| 5.6686 | | |
| 3.6057 | | |
| 2.0193 | | |
| 0.8713 | | |
| 0.2253 | | |
| 0.0468 | | |
| 0.0000 | | |
| 0.0000 | |
September 1, 2029 | |
| 13.2362 | | |
| 9.1671 | | |
| 6.6236 | | |
| 4.7119 | | |
| 2.8086 | | |
| 1.4450 | | |
| 0.5813 | | |
| 0.1468 | | |
| 0.0261 | | |
| 0.0000 | | |
| 0.0000 | |
September 1, 2030 | |
| 13.2362 | | |
| 8.1712 | | |
| 5.2525 | | |
| 3.2724 | | |
| 1.6147 | | |
| 0.7060 | | |
| 0.2738 | | |
| 0.0727 | | |
| 0.0106 | | |
| 0.0000 | | |
| 0.0000 | |
September 1, 2031 | |
| 13.2362 | | |
| 5.8782 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | | |
| 0.0000 | |
The
exact Stock Price and Effective Date may not be set forth in the table above, in which case:
(i)
if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective 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 Effective Dates, as applicable, based on a 365-day year;
(ii)
if the Stock Price is greater than $125.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate; and
(iii)
if the Stock Price is less than $15.11 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding
the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 66.1813 shares of Common Stock, subject
to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f)
Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole
Fundamental Change.
Section
14.04. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following
events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other
than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms
as holders of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04,
without having to convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied
by the principal amount (expressed in thousands) of Notes held by such Holder.
(a)
If the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company
effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula:
where,
CR0 |
= |
the
Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or
immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable; |
|
|
|
CR1 |
= |
the
Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date; |
|
|
|
OS0 |
= |
the
number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date
(before giving effect to any such dividend, distribution, split or combination); and |
|
|
|
OS1 |
= |
the
number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share
combination. |
Any
adjustment made under this Section 14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for
such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination,
as applicable. If any dividend or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the
Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend
or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b)
If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection
with a stockholder rights plan) entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance,
to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale
Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:
CR1 |
= |
CR0 |
× |
OS0
+ X |
|
|
|
|
OS0
+ Y |
where,
CR0 |
= |
the
Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance; |
|
|
|
CR1 |
= |
the
Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; |
|
|
|
OS0 |
= |
the
number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date; |
|
|
|
X |
= |
the
total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and |
|
|
|
Y |
= |
the
number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants. |
Any
increase made under this Section 14.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall
become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common
Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion
Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the
basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued,
the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance
had not occurred.
For
purposes of this Section 14.04(b) and for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants
entitle the holders of the Common Stock to subscribe for or purchase shares of the Common Stock at less than such average of the Last
Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable
on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c)
If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or rights,
options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding
(i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a) or Section 14.04(b), (ii)
dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 14.04(d) shall apply, (iii) except
as otherwise set forth below in this Section 14.04(c), rights issued pursuant to a stockholder rights plan of the Company, (iv) any dividends
or distributions of Reference Property in exchange for Common Stock in connection with a transaction described in Section 14.07 and (v)
Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of such shares of Capital Stock, evidences
of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed
Property”), then the Conversion Rate shall be increased based on the following formula:
CR1 |
= |
CR0 |
× |
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; |
|
|
|
SP0 |
= |
the
average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and |
|
|
|
FMV |
= |
the
fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of
the Common Stock on the Ex-Dividend Date for such distribution. |
Any
increase made under the portion of this Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend
Date for such distribution. If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate
that would then be in effect if such distribution had not been declared.
Notwithstanding
the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in
lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same
time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property
such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the
Ex-Dividend Date for the distribution. If the Board of Directors determines the “FMV” (as defined above) of any distribution
for purposes of this Section 14.04(c) by reference to the actual or when-issued trading market for any securities, it shall in doing
so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
With
respect to an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the
Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business
unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”),
the Conversion Rate shall be increased based on the following formula:
CR1 |
= |
CR0 |
× |
FMV0
+ MP0 |
|
|
|
|
MP0 |
where,
CR0 |
= |
the
Conversion Rate in effect immediately prior to the end of the Valuation Period; |
|
|
|
CR1 |
= |
the
Conversion Rate in effect immediately after the end of the Valuation Period; |
|
|
|
FMV0 |
= |
the
average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock
applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in
Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive
Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and |
|
|
|
MP0 |
= |
the
average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. |
The
increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation
Period; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion
Date occurs during the Valuation Period, references to “10” in the preceding paragraph shall be deemed to be replaced with
such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the
Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination
Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation
Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days
as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, such Trading Day in determining the Conversion
Rate as of such Trading Day. If any dividend or distribution that constitutes a Spin-Off is declared but not so paid or made, the Conversion
Rate shall be immediately decreased, as of the date the Board of Directors determines not to pay or make such dividend or distribution,
to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced.
For
purposes of this Section 14.04(c) (and subject in all respect to Section 14.11), rights, options or warrants distributed by the Company
to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including
Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified
event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed
for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under this Section 14.04(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 14.04(c). If any such right, option
or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness
or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend
Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be
deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution
(or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately
preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to
the Conversion Rate under this Section 14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have
been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall
be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to
give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or
warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of
such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without
exercise by any holders thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the
increase made for the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares
of the Common Stock actually delivered upon exercise of such rights, options or warrants.
For
purposes of Section 14.04(a), Section 14.04(b) and this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c)
is applicable also includes one or both of:
(A)
a dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”);
or
(B)
a dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause B Distribution”),
then,
in either case, (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed
to be a dividend or distribution to which this Section 14.04(c) is applicable (the “Clause C Distribution”) and any
Conversion Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the
Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate
adjustment required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined by the
Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend
Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution
shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date”
within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date”
within the meaning of Section 14.04(b).
(d)
If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate shall be adjusted
based on the following formula:
where,
CR0 |
= |
the
Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; |
|
|
|
CR1 |
= |
the
Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; |
|
|
|
SP0 |
= |
the
Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution;
and |
|
|
|
C |
= |
the
amount in cash per share the Company distributes to all or substantially all holders of the Common Stock. |
Any
increase pursuant to this Section 14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for
such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as
of the date the Board of Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined
above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of
a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the
Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to
the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.
(e)
If the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock that is subject
to the then-applicable tender offer rules under the Exchange Act, other than an odd lot tender offer, to the extent that the cash and
value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale
Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the
last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased
based on the following formula:
CR1
= CR0 × AC + (SP1 × OS1)
OS0
× SP1
where,
CR0 |
= |
the Conversion Rate in effect
immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding
the date such tender or exchange offer expires; |
|
|
|
CR1 |
= |
the Conversion Rate in effect
immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding
the date such tender or exchange offer expires; |
|
|
|
AC |
= | the
aggregate value of all cash and any other consideration (as determined by the Board of Directors)
paid or payable for shares of Common Stock purchased in such tender or exchange offer; |
|
| |
OS0 |
= |
the number of shares of Common
Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all
shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); |
|
|
|
OS1 |
= |
the number of shares of Common
Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares
of Common Stock accepted for purchase or exchange in such tender or exchange offer); and |
|
|
|
SP1 |
= |
the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding
the date such tender or exchange offer expires. |
The
increase to the Conversion Rate under this Section 14.04(e) shall occur at the close of business on the 10th Trading Day immediately
following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in
respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10
Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer,
references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading
Days as have elapsed from, and including, the Trading Day next succeeding the date that such tender or exchange offer expires to, and
including, the Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement
or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such conversion and
within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or
exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser
number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the expiration date of such tender or exchange
offer to, and including, such Trading Day in determining the Conversion Rate as of such Trading Day.
If
the Company is obligated to purchase the Common Stock pursuant to any such tender or exchange offer described in this Section 14.04(e)
but the Company is permanently prevented by applicable law from effecting any such purchase or any such purchase is rescinded, then the
Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been
made or had been made in respect of the purchases that have been effected.
(f)
Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, if a Conversion Rate adjustment becomes effective
on any Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record
Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section
14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions
in this Section 14.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder.
Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis and
participate in the related dividend, distribution or other event giving rise to such adjustment.
(g)
Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities
convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible
or exchangeable securities.
(h)
In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04, and to the extent permitted by
applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the
Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board of Directors
determines that such increase would be in the Company’s best interest. In addition, to the extent permitted by applicable law and
subject to the applicable rules of any exchange on which any of the Company’s securities are then listed, the Company may (but
is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase
Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or
similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding two sentences, the Company shall deliver
to the Holder of each Note, the Trustee and the Conversion Agent (if other than the Trustee) a notice of the increase at least 15 days
prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period
during which it will be in effect.
(i)
Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not be adjusted:
(i)
upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or
interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under
any plan;
(ii)
upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;
(iii)
upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued (other than any rights plan
as described under Section 14.04(c));
(iv)
upon the repurchase of any shares of Common Stock pursuant to an open-market share repurchase program or other buy-back transaction that
is not a tender offer or exchange offer of the nature described in Section 14.04(e);
(v)
solely for a change in the par value of the Common Stock; or
(vi)
for accrued and unpaid interest, if any.
(j)
Notwithstanding this Section 14.04 or any other provision of this Indenture or the Notes, the Company shall not be required to make an
adjustment pursuant to this Section 14.04 unless such adjustment would result in a change of at least 1% in the then-effective Conversion
Rate. However, the Company shall carry forward any adjustments that the Company would otherwise have to make and take that adjustment
into account in any subsequent adjustment. Notwithstanding the foregoing, all such carried-forward adjustments shall be made (1) in connection
with any subsequent adjustment to the Conversion Rate of at least 1% (when all such carried-forward adjustments not yet made are aggregated
and taken into account), (2) (x) on the Conversion Date for any Notes (in the case of Physical Settlement) and (y) on each Trading Day
of any Observation Period (in the case of Cash Settlement or Combination Settlement), (3) on the Effective Date of any Fundamental Change
and/or Make-Whole Fundamental Change and (4) on or after March 1, 2031, unless the adjustment has already been made. All calculations
and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten thousandth (1/10,000th)
of a share.
(k)
Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee (and the Conversion Agent
if not the Trustee) an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry
that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each
adjustment becomes effective and shall deliver such notice of such adjustment of the Conversion Rate to each Holder. Failure to deliver
such notice shall not affect the legality or validity of any such adjustment.
(l)
For purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock
held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.
Section
14.05. Adjustments of Prices. Whenever any provision of this Indenture requires the Company to calculate the Last Reported Sale
Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including, without
limitation, an Observation Period and the period, if any, for determining the Stock Price for purposes of a Make-Whole Fundamental Change
or a Redemption Notice), the Board of Directors shall make appropriate adjustments to each to account for any adjustment to the Conversion
Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date, Effective Date or
expiration date, as the case may be, of the event occurs, at any time during the period when the Last Reported Sale Prices, the Daily
VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.
Section
14.06. Shares to Be Fully Paid. The Company shall provide, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes
are presented for conversion (assuming delivery of the maximum number of Additional Shares pursuant to Section 14.03 and that at the
time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical Settlement were
applicable).
Section
14.07. Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.
(a)
In the case of:
(i)
any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii)
any consolidation, merger, combination or similar transaction involving the Company,
(iii)
any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially
as an entirety, or
(iv)
any statutory share exchange,
in
each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or
assets (including cash or any combination thereof) (any such event, a “Share Exchange Event”), then, at and after
the effective time of such Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right
to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including
cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to
such Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit
of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled
to receive) upon such Share Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company or the successor
or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) 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 Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to
be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in
cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock
that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable
in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive
in such Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property.
If
the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type
of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes
will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders
of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration
referred to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Share
Exchange Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Share Exchange
Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the
Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied
by the price paid per share of Common Stock in such Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation
by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall
notify in writing 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.
Such
supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments
that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Share Exchange
Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof)
of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Share Exchange Event, then
such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests
of the Holders of the Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including the provisions
providing for the purchase rights set forth in Article 15.
(b)
When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file
with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property
or asset that will comprise a unit of Reference Property after any such Share Exchange Event, any adjustment to be made with respect
thereto and that all conditions precedent have been complied with, and shall promptly deliver notice thereof to all Holders. The Company
shall cause notice of the execution of such supplemental indenture to be delivered to each Holder within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c)
The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the
foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination
of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date of such
Share Exchange Event.
(d)
The above provisions of this Section shall similarly apply to successive Share Exchange Events.
Section
14.08. Reserve and Status of Common Stock Issued upon Conversion. (a) At all times when any Notes are outstanding, the Company
will reserve, out of its authorized, unreserved and not outstanding shares of Common Stock, a number of shares of Common Stock to permit
the conversion of all then-outstanding Notes, assuming (x) Physical Settlement will apply to such conversion; and (y) the Conversion
Rate is increased by the maximum amount pursuant to which the Conversion Rate may be increased pursuant to Section 14.03. To the extent
the Company delivers shares of Common Stock held in its treasury in settlement of the conversion of any Notes, each reference in this
Indenture or the Notes to the issuance of shares of Common Stock in connection therewith will be deemed to include such delivery, mutatis
mutandis.
(b)
Each share of Common Stock, if any, delivered upon conversion of any Note will be a newly issued or treasury share (except that any share
of Common Stock delivered by a designated financial institution pursuant to Section 14.12 need not be a newly issued or treasury share)
and will be duly and validly issued, fully paid, non-assessable, free from preemptive rights and free of any lien or adverse claim (except
to the extent of any lien or adverse claim created by the action or inaction of the Holder of such Note or the Person to whom such share
of Common Stock will be delivered). If the Common Stock is then listed on any securities exchange, or quoted on any inter-dealer quotation
system, then the Company will use commercially reasonable efforts to cause each share of Common Stock, when delivered upon conversion
of any Note, to be admitted for listing on such exchange or quotation on such system.
Section
14.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility
to any Holder to determine the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment
(including any increase) of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee
and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any Note; and
the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any Conversion Agent
shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or
other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 14.07 relating either to the kind or amount of shares of stock or securities or property (including
cash) receivable by Holders upon the conversion of their Notes after any event referred to in such Section 14.07 or to any adjustment
to be made with respect thereto, but, subject to the provisions of Section 7.01, may accept (without any independent investigation) as
conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate
and Opinion of Counsel (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event
contemplated by Section 14.01(b) has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company
has delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b) with respect to the commencement or
termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the Company agrees
to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event or at such other times
as shall be provided for in Section 14.01(b). In no event shall the Trustee or the Conversion Agent be charged with knowledge of or have
any duty to monitor the Stock Price or Measurement Period. The parties agree that all notices to the Trustee or the Conversion Agent
under this Article 13 must be in writing.
Section
14.10. Notice to Holders Prior to Certain Actions. In case of any:
(a)
action by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 14.04 or
Section 14.11;
(b)
Share Exchange Event; or
(c)
voluntary or involuntary dissolution, liquidation or winding-up of the Company or any of its Subsidiaries;
then,
in each case (unless notice of such event is otherwise required pursuant to another provision of this Indenture), the Company shall deliver
to the Trustee and the Conversion Agent (if other than the Trustee) and cause to be delivered to each Holder, as promptly as possible
but in any event at least 20 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record
is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to be taken, the date
as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Company or one of its Subsidiaries,
or (ii) the date on which such Share Exchange Event, dissolution, liquidation or winding-up is expected to become effective or occur,
and 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 Share Exchange Event, dissolution, liquidation or winding-up. Failure to give such notice, or
any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Share Exchange
Event, dissolution, liquidation or winding-up.
Section
14.11. Stockholder Rights Plans. If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share
of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms
of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the
rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the
Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the
Common Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination
or redemption of such rights.
Section
14.12. Exchange in Lieu of Conversion. (a) When a Holder surrenders its Notes for conversion, the Company may, at its election
(an “Exchange Election”), direct the Conversion Agent in writing to surrender, on or prior to the second Business
Day immediately following the relevant Conversion Date, such Notes to a financial institution designated by the Company for exchange
in lieu of conversion. In order to accept any Notes surrendered for conversion, the designated institution must agree to timely pay and/or
deliver, in exchange for such Notes, cash, shares of Common Stock or a combination of cash and shares of Common Stock, at the Company’s
election, that would otherwise be due upon conversion as described in Section 14.02 (the “Conversion Consideration”).
If the Company makes an Exchange Election, the Company shall, by the close of business on the Business Day immediately following the
relevant Conversion Date, notify in writing the Holder surrendering its Notes for conversion, the Trustee and the Conversion Agent (if
other than the Trustee) that the Company has made the Exchange Election and the Company shall notify the designated institution of the
Settlement Method the Company has elected with respect to such conversion and the relevant deadline for payment and/or delivery of the
Conversion Consideration.
(b)
If the designated institution accepts any such Notes, it shall pay and/or deliver, as the case may be, the cash, shares of Common Stock
or a combination thereof due upon conversion to the Conversion Agent, and the Conversion Agent shall pay and/or deliver such cash and/or
shares of Common Stock to such Holder on the third Business Day immediately following the relevant Conversion Date. Any Notes exchanged
by the designated institution will remain outstanding, subject to applicable procedures of The Depository Trust Company (“DTC”).
If the designated institution agrees to accept any Notes for exchange but does not timely pay and/or deliver the related Conversion Consideration,
or if such designated institution does not accept the Notes for exchange, the Company shall pay and/or deliver the relevant Conversion
Consideration as if the Company had not made an Exchange Election.
(c)
The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require such institution
to accept any Notes. The Company may, but shall not be obligated to, enter into a separate agreement with any designated institution
that would compensate it for any such transaction.
Article
15
Repurchase
of Notes at Option of Holders
Section
15.01. Repurchase at Option of Holders. (a) Each Holder shall have the right, at such Holder’s option, to require the Company
to repurchase for cash on March 1, 2029 (the “Repurchase Date”), all of such Holder’s Notes, or any portion
thereof that is an integral multiple of $1,000 principal amount, at a repurchase price (the “Repurchase Price”) that
is equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest to, but excluding, the
Repurchase Date; provided that any such accrued and unpaid interest shall be paid not to the Holders submitting the Notes for
repurchase on the Repurchase Date but instead to the Holders of such Notes at the close of business on the Regular Record Date immediately
preceding the Repurchase Date. Not later than 20 Business Days prior to the Repurchase Date, the Company shall deliver a notice (the
“Company Notice”) to the Trustee, to the Paying Agent, to the Conversion Agent and to each Holder shown in the Note
Register of the Note Registrar (and to beneficial owners as required by applicable law). The Company Notice shall include a Form of Repurchase
Notice to be completed by a holder and shall state:
(i)
the last date on which a Holder may exercise its repurchase right pursuant to this Section 15.01 (the “Repurchase Expiration
Time”);
(ii)
the Repurchase Price;
(iii)
the Repurchase Date;
(iv)
the name and address of the Conversion Agent and Paying Agent;
(v)
that the Notes with respect to which a Repurchase Notice has been delivered by a Holder may be converted only if the Holder withdraws
the Repurchase Notice in accordance with the terms of this Indenture;
(vi)
that the Holder shall have the right to withdraw any Notes surrendered prior to the Repurchase Expiration Time; and
(vii)
the procedures a Holder must follow to exercise its repurchase rights under this Section 15.01 and a brief description of those
rights.
At
the Company’s written request given at least three (3) Business Days before such notice is to be sent (unless the Trustee consents
to a shorter period), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided,
however, that, in all cases, the text of such Company Notice shall be prepared by the Company.
Simultaneously
with providing the Company Notice, the Company shall publish a notice containing the information included in the Company Notice in a
newspaper of general circulation in The City of New York or publish such information on the Company’s website or through such other
public medium as the Company may use at that time.
Repurchases
of Notes under this Section 15.01 shall be made, at the option of the Holder thereof, upon:
(A)
delivery to the Paying Agent by the Holder of a duly completed notice (the “Repurchase Notice”) in the form set forth
in Attachment 3 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance with the Depositary’s
procedures for surrendering interests in global notes, if the Notes are Global Notes, in each case during the period beginning at any
time from the open of business on the date that is 20 Business Days prior to the Repurchase Date until the close of business on the second
Business Day immediately preceding the Repurchase Date; and
(B)
delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Repurchase Notice (together
with all necessary endorsements) at the address of the Paying Agent set forth in the Company Notice, or book-entry transfer of the Notes,
if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery being a condition to receipt
by the Holder of the Repurchase Price therefor.
Each
Repurchase Notice shall state:
(A)
in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(B)
the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(C)
that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided,
however, that if the Notes are Global Notes, the Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the Repurchase Notice contemplated by this Section 15.01
shall have the right to withdraw, in whole or in part, such Repurchase Notice at any time prior to the close of business on the second
Business Day immediately preceding the Repurchase Date, in the case of Physical Notes, by delivery of a duly completed written notice
of withdrawal to the Paying Agent in accordance with Section 15.03, and, in the case of Global Notes, by complying with the applicable
withdrawal procedures of the Depositary.
The
Paying Agent shall promptly notify the Company of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
No
Repurchase Notice with respect to any Notes may be delivered and no Note may be surrendered for repurchase pursuant to this Section
15.01 by a Holder thereof to the extent such Holder has also delivered a Fundamental Change Repurchase Notice with respect to such Note
in accordance with Section 15.02 and not validly withdrawn such Fundamental Change Repurchase Notice in accordance with Section
15.03.
(b)
Notwithstanding the foregoing, no Notes may be repurchased by the Company at the option of the Holders on the Repurchase Date if the
principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such Repurchase Date
(except in the case of an acceleration resulting from a Default by the Company in the payment of the Repurchase Price with respect to
such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration
of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Repurchase Price with
respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary
shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.
Section
15.02. Repurchase at Option of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time prior to the
Maturity Date, each Holder shall have the right, at such Holder’s option, to require the Company to repurchase for cash all of
such Holder’s Notes, or any portion thereof that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental
Change Repurchase Date”) specified by the Company that is not less than 20 Business Days or more than 35 Business Days following
the date of the Fundamental Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which
such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders
of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount
of Notes to be repurchased pursuant to this Article 15. To the extent that the provisions of any securities laws or regulations conflict
with the provisions of the Notes and this Indenture relating to the Company’s obligation to purchase Notes upon a Fundamental Change,
the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligation
under the provisions of this Indenture by virtue of such conflict.
(b)
Repurchases of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:
(i)
delivery to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in
the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance
with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or
before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii)
delivery of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase
Notice (together with all necessary endorsements for transfer) at the address of the Paying Agent set forth in the Fundamental Change
Company Notice, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary,
in each case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The
Fundamental Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i)
in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii)
the portion of the principal amount of Notes to be repurchased, which must be $1,000 or an integral multiple thereof; and
(iii)
that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided,
however, that if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary
procedures.
Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this
Section 15.02 shall have the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date by, in the case of Physical Notes,
delivery of a written notice of withdrawal to the Paying Agent in accordance with Section 15.03 or in accordance with the applicable
procedures of the Depositary in the case of Global Notes.
The
Paying Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of
withdrawal thereof.
(c)
On or before the 20th Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to all
Holders of Notes, the Trustee, the Conversion Agent (in the case of a Conversion Agent other than the Trustee) and the Paying Agent (in
the case of a Paying Agent other than the Trustee) a notice (the “Fundamental Change Company Notice”) of the occurrence
of the effective date of the Fundamental Change and of the repurchase right at the option of the Holders arising as a result thereof.
In the case of Physical Notes, such notice shall be by first class mail or, in the case of Global Notes, such notice shall be delivered
in accordance with the applicable procedures of the Depositary. Simultaneously with providing such notice, the Company shall publish
a notice containing the information set forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City
of New York or publish such information on the Company’s website or through such other public medium as the Company may use at
that time. Each Fundamental Change Company Notice shall specify:
(i)
the events causing the Fundamental Change;
(ii)
the effective date of the Fundamental Change;
(iii)
the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv)
the Fundamental Change Repurchase Price;
(v)
the Fundamental Change Repurchase Date;
(vi)
the name and address of the Paying Agent and the Conversion Agent (if other than the Trustee), if applicable;
(vii)
if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii)
that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only if the
Holder validly withdraws the Fundamental Change Repurchase Notice in accordance with the terms of this Indenture; and
(ix)
the procedures that Holders must follow to require the Company to repurchase their Notes.
No
failure of the Company to give the foregoing notices and no defect therein shall limit the Holders’ repurchase rights or affect
the validity of the proceedings for the repurchase of the Notes pursuant to this Section 15.02.
At
the Company’s written request given at least three (3) Business Days before such notice is to be sent (unless the Trustee consents
to a shorter period), the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided,
however, that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d)
Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental
Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date
(except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price
with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during
the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental
Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the
procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental
Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
(e)
Notwithstanding anything to the contrary in this Indenture, the Company shall not be required to purchase, or make an offer to repurchase,
the Notes upon a Fundamental Change otherwise required under this Section 15.02 if a third party makes an offer to purchase the
Notes in the same manner, at the same time and otherwise in compliance with the requirements set forth in this Indenture applicable to
such an offer by the Company as if the Company made it, and such third party purchases all Notes properly surrendered and not validly
withdrawn under its offer in the same manner, at the same time and otherwise in compliance with the requirements set forth in this Indenture
applicable to such an offer by the Company.
Section
15.03. Withdrawal of Repurchase Notice or Fundamental Change Repurchase Notice. (a) A Repurchase Notice or Fundamental Change
Repurchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the address of the Paying
Agent set forth in Company Notice or the Fundamental Change Company Notice, as the case may be, in accordance with this Section 15.03
at any time prior to the close of business on the second Business Day immediately preceding the Repurchase Date or prior to the close
of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, as the case may be, specifying:
(i)
the principal amount of the Notes with respect to which such notice of withdrawal is being submitted,
(ii)
if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted,
and
(iii)
the principal amount, if any, of such Note that remains subject to the original Repurchase Notice or Fundamental Change Repurchase Notice,
as the case may be, which portion must be in principal amounts of $1,000 or an integral multiple of $1,000;
provided,
however, that if the Notes are Global Notes, the notice must comply with appropriate procedures of the Depositary.
Section
15.04. Deposit of Repurchase Price or Fundamental Change Repurchase Price. (a) The Company will deposit with the Paying Agent,
or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.04) on or prior
to 11:00 a.m., New York City time, on the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, an amount of money
sufficient to repurchase all of the Notes to be repurchased at the appropriate Repurchase Price or Fundamental Change Repurchase Price;
provided, further, that to the extent such deposit is received by the Paying Agent after 11:00 a.m. New York City time, on any such due
date, such deposit will be deemed deposited on the next Business Day. Subject to receipt of funds and/or Notes by the Paying Agent, payment
for Notes surrendered for repurchase (and not withdrawn prior to the close of business on the second Business Day immediately preceding
the Repurchase Date or prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date)
will be made on the later of (i) the Repurchase Date or Fundamental Change Repurchase Date, as the case may be (provided the Holder
has satisfied the conditions in Section 15.01 or Section 15.02, as the case may be) and (ii) the time of book-entry transfer or
the delivery of such Note to the Paying Agent by the Holder thereof in the manner required by Section 15.01 or Section 15.02, as
applicable, by mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register;
provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee. The Paying Agent shall, promptly after such payment and upon written demand by the Company,
return to the Company any funds in excess of the Repurchase Price or Fundamental Change Repurchase Price, as the case may be.
(b)
If by 11:00 a.m. New York City time, on the Repurchase Date or Fundamental Change Repurchase Date, as the case may be, the Paying Agent
holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Repurchase Date or Fundamental
Change Repurchase Date, as the case may be, then, with respect to the Notes that have been properly surrendered for repurchase and have
not been validly withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or
not book-entry transfer of the Notes has been made or the Notes have been delivered to the Trustee) and (iii) all other rights of the
Holders of such Notes will terminate (other than the right to receive the Repurchase Price or Fundamental Change Repurchase Price, as
the case may be).
(c)
Upon surrender of a Note that is to be repurchased in part pursuant to Section 15.01 or Section 15.02, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the
unrepurchased portion of the Note surrendered.
Section
15.05. Covenant to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company
will, if required:
(a)
comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act;
(b)
file a Schedule TO or any other required schedule under the Exchange Act; and
(c)
otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;
in
each case, so as to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in
this Article 15.
Article
16
Optional Redemption
Section
16.01. Optional Redemption. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company prior
to September 6, 2028. On or after September 6, 2028, the Company may redeem (an “Optional Redemption”) for cash all
or any portion of the Notes (subject to the Partial Redemption Limitation), at the Redemption Price, if the Last Reported Sale Price
of the Common Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days (whether or not consecutive),
including the Trading Day immediately preceding the date on which the Company provides a Redemption Notice, during any 30 consecutive
Trading Day period ending on, and including, the Trading Day immediately preceding the date on which the Company provides the Redemption
Notice in accordance with Section 16.02.
Section
16.02. Notice of Optional Redemption; Selection of Notes. (a) In case the Company exercises its Optional Redemption right to redeem
all or, as the case may be, any part of the Notes pursuant to Section 16.01, it shall fix a date for redemption (each, a “Redemption
Date”) and it or, at its written request received by the Trustee not less than three (3) Business Days before such notice is
to be sent (unless the Trustee consents to a shorter period), the Trustee, in the name of and at the expense of the Company, shall deliver
or cause to be delivered a notice of such Optional Redemption (a “Redemption Notice”) not less than 25 nor more than
45 Scheduled Trading Days prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole or in part; provided,
however, that, if the Company shall give such notice, it shall also give written notice of the Redemption Date to the Trustee,
the Paying Agent (if other than the Trustee) and the Conversion Agent (if other than the Trustee). However, if in accordance with Section
14.02(a)(iii) the Company elects to settle all conversions with a Conversion Date that occurs on or after the date of the Redemption
Notice and before the related Redemption Date by Physical Settlement, or if Physical Settlement otherwise applies as a result of the
Company’s irrevocable election of a Settlement Method pursuant to Section 14.02(a)(iii)(B), then the Company may instead provide
such Redemption Notice not less than 30 nor more than 60 calendar days prior to the Redemption Date. The Redemption Date must be a Business
Day.
(b)
The Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice. In any case, failure to give such Redemption Notice by mail or any defect in the Redemption Notice
to the Holder of any Note designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption
of any other Note.
(c)
Each Redemption Notice shall specify:
(i)
the Redemption Date;
(ii)
the Redemption Price;
(iii)
that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon,
if any, shall cease to accrue on and after the Redemption Date;
(iv)
the place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v)
that Holders may surrender their Notes for conversion at any time prior to the close of business on the Scheduled Trading Day immediately
preceding the Redemption Date;
(vi)
the procedures a converting Holder must follow to convert its Notes and the Settlement Method and Specified Dollar Amount, if applicable;
(vii)
the Conversion Rate and, if applicable, the number of Additional Shares added to the Conversion Rate in accordance with Section 14.03;
(viii)
the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(ix)
in case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Redemption
Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.
A
Redemption Notice shall be irrevocable.
(d)
If the Company elects to redeem fewer than all of the outstanding Notes, at least $75 million aggregate principal amount of Notes must
be outstanding and not subject to redemption as of the date of the relevant Redemption Notice (such requirement, the “Partial
Redemption Limitation”). If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select the Notes
or portions thereof of a Global Note or the Notes in certificated form to be redeemed (in principal amounts of $1,000 or multiples thereof)
by lot, on a pro rata basis or by another method the Trustee considers to be fair and appropriate and, in the case of global securities,
subject to the applicable procedures of DTC. If any Note selected for partial redemption is submitted for conversion in part after such
selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected for
redemption.
Section
16.03. Payment of Notes Called for Redemption. (a) If any Redemption Notice has been given in respect of the Notes in accordance
with Section 16.02, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice
and at the applicable Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Redemption Notice,
the Notes shall be paid and redeemed by the Company at the applicable Redemption Price.
(b)
Prior to the open of business on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary
of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount of cash (in immediately
available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes to be redeemed on such
Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be made on the Redemption
Date for such Notes. The Paying Agent shall, promptly after such payment and upon written demand by the Company, return to the Company
any funds in excess of the Redemption Price.
Section
16.04. Restrictions on Redemption. The Company may not redeem any Notes if the Redemption Date would fall after the Maturity Date.
In addition, no Notes may be redeemed on any date if the principal amount of the Notes has been accelerated in accordance with the terms
of this Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of an acceleration
resulting from a Default by the Company in the payment of the Redemption Price with respect to such Notes).
Article
17
Miscellaneous Provisions
Section
17.01. Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements of the Company
contained in this Indenture shall bind its successors and assigns whether so expressed or not.
Section
17.02. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect
by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the
Company.
Section
17.03. Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders on the Company shall be deemed to have been sufficiently given or made, for all purposes
if given or served by being deposited postage prepaid by registered or certified mail in a post office letter box addressed (until another
address is filed by the Company with the Trustee) to Marathon Digital Holdings, Inc., 101 NE Third Avenue, Suite 1200, Fort Lauderdale,
FL, Attention: General Counsel, with a copy to Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York,
New York 10019, Attention: Luke R. Jennings. Any notice, direction, request or demand hereunder to or upon the Trustee shall be in writing
(including facsimile or electronic communications in PDF format). Notices by certified or registered mails shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid by registered or certified mail in
a post office letter box addressed to the Corporate Trust Office. Notice to the Trustee by electronic mail shall be deemed to have been
sufficiently given or made, for all purposes, if sent to the Corporate Trust Office or such other email address as the Trustee may from
time to time designate in writing to the Company the Holders absent receipt of a failure to deliver notice and shall be deemed to have
been sufficiently given or made, for all purposes, upon the receipt by a Responsible Officer of the Trustee at the Corporate Trust Office.
The
Trustee, by notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any
notice or communication delivered or to be delivered to a Holder of Physical Notes pursuant to this Indenture shall be in writing by
first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to its
address as it appears on the Note Register and shall be sufficiently given to it if so mailed within the time prescribed. However, any
notice or communication delivered or to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable
procedures of the Depositary and shall be deemed to be duly sent or given in writing if so delivered within the time prescribed. Notwithstanding
any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any Notice
of Redemption or any Fundamental Change Company Notice) to a Holder of a Global Note (whether by mail or otherwise), such notice shall
be sufficiently given if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee,
including by electronic mail in accordance with the Depositary’s applicable procedures.
Failure
to mail or deliver a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed or delivered, as the case may be, in the manner provided above, it is duly given, whether or not
the addressee receives it.
In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice
to Holders by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
The
Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer instruction,
(each, a “Notice”) received pursuant to this Agreement by electronic transmission (including by e-mail, facsimile
transmission, web portal or other electronic methods) and shall not have any duty to confirm that the person sending such Notice is,
in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other applicable
law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other
digital signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original signatures for
all purposes. Each other party to this Agreement assumes all risks arising out of the use of electronic signatures and electronic methods
to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice and the risk of
interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance and in its sole discretion require
that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of, or in addition to,
any such electronic Notice. The Trustee shall not be liable for any losses, costs, or expenses arising directly or indirectly from the
Trustee’s reliance upon and compliance with any Notice notwithstanding such instructions conflict or are inconsistent with a subsequent
written notice.
Section
17.04. Governing Law; Jurisdiction. THIS INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED
TO THIS INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
The
Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal
action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with
this Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough
of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect
to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have
to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture brought
in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York
and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient forum.
Section
17.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application
or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested
by the Trustee, furnish to the Trustee an Officer’s Certificate and Opinion of Counsel stating that such action is permitted by
the terms of this Indenture and that all conditions precedent to such actions have been complied with.
Each
Officer’s Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the
Trustee with respect to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall
include (a) a statement that the person signing such certificate is familiar with the requested action and this Indenture; (b) a brief
statement as to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based;
(c) a statement that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable
him or her to express an informed judgment as to whether or not such action is permitted by this Indenture; and (d) a statement as to
whether or not, in the judgment of such person, such action is permitted by this Indenture and that all conditions precedent to such
action have been complied with.
Notwithstanding
anything to the contrary in this Section 17.05, if any provision in this Indenture specifically provides that the Trustee shall or may
receive an Opinion of Counsel in connection with any action to be taken by the Trustee or the Company hereunder, the Trustee shall be
entitled to, or entitled to request, such Opinion of Counsel.
Section
17.06. Legal Holidays. In any case where any Interest Payment Date, any Fundamental Change Repurchase Date, any Redemption Date
or the Maturity Date is not a Business Day, then any action to be taken on such date need not be taken on such date, but may be taken
on the next succeeding Business Day with the same force and effect as if taken on such date, and no interest shall accrue in respect
of the delay.
Section
17.07. No Security Interest Created. Nothing in this Indenture or in the Notes, expressed or implied, shall be construed to constitute
a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
Section
17.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other
than the Holders, the parties hereto, any Paying Agent, any Conversion Agent, any Custodian, any authenticating agent, any Note Registrar
and their successors hereunder, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section
17.09. Table of Contents, Headings, Etc. The table of contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section
17.10. Authenticating Agent. The Trustee may appoint an authenticating agent that shall be authorized to act on its behalf and
subject to its direction in the authentication and delivery of Notes in connection with the original issuance thereof and transfers and
exchanges of Notes hereunder, including under Section 2.04, Section 2.05, Section 2.06, Section 2.07, Section 10.04 and Section 15.04
as fully to all intents and purposes as though the authenticating agent had been expressly authorized by this Indenture and those Sections
to authenticate and deliver Notes. For all purposes of this Indenture, the authentication and delivery of Notes by the authenticating
agent shall be deemed to be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any requirement hereunder or in the Notes for
the Trustee’s certificate of authentication. Such authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 7.08.
Any
corporation or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any
corporation or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party,
or any corporation or other entity succeeding to the corporate trust business of any authenticating agent, shall be the successor of
the authenticating agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10, without
the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.
Any
authenticating agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may
at any time terminate the agency of any authenticating agent by giving written notice of termination to such authenticating agent and
to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent
shall cease to be eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall
give written notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.
The
Company agrees to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may
terminate the authenticating agent, if it determines such agent’s fees to be unreasonable.
The
provisions of Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable to any authenticating
agent.
If
an authenticating agent is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
|
, |
as
Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture. |
|
Section
17.11. 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.
Section
17.12. Severability. In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable,
then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected
or impaired.
Section
17.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
17.14. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, epidemics, pandemics, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section
17.15. Calculations. Except as otherwise provided herein, the Company shall be responsible for making all calculations called
for under the Notes. These calculations include, but are not limited to, determinations of the Trading Price (for purposes of determining
whether the notes are convertible as described herein), the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily
Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate. The Company shall make
all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders
of Notes, the Trustee and the Conversion Agent. The Company shall provide a schedule of its calculations to each of the Trustee, the
Paying Agent (if other than the Trustee) and the Conversion Agent (if other than the Trustee), and each of the Trustee, the Paying Agent
and the Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification
(and neither the Trustee nor the Paying Agent nor the Conversion Agent shall have any responsibility for such calculations). The Trustee
will forward the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense
of the Company.
Section
17.16. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee,
like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify,
and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee.
The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee
to satisfy the requirements of the USA PATRIOT Act.
Section
17.17. Tax Withholding. The Company or the Trustee, as the case may be, shall be entitled to make a deduction or withholding from
any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the extent
so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof
or any law implementing an intergovernmental approach thereto or by virtue of the relevant Holder failing to satisfy any certification
or other requirements in respect of the Notes, in which event the Company or the Trustee, as the case may be, shall make such payment
after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted
and shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
|
MARATHON
DIGITAL HOLDINGS, INC. |
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By: |
/s/
Fred Thiel |
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Name: |
Fred
Thiel |
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Title: |
Chief
Executive Officer |
[Signature
Page to Indenture]
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U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
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By: |
/s/
Brandon Bonfig |
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Name: |
Brandon
Bonfig |
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Title: |
Vice
President |
[Signature
Page to Indenture]
EXHIBIT
A
[FORM
OF FACE OF NOTE]
[INCLUDE
FOLLOWING LEGEND IF A GLOBAL NOTE]
[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE
FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS
SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(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 MARATHON DIGITAL HOLDINGS, 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)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER,
OR
(C)
TO A PERSON REASONABLY BELIEVED TO BE 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
(E)
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) OR (E) 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.]
NO
AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF MARATHON DIGITAL HOLDINGS, INC. OR PERSON THAT HAS BEEN AN AFFILIATE (AS
DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF MARATHON DIGITAL HOLDINGS, INC. DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE,
OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL INTEREST HEREIN.
Marathon
Digital Holdings, Inc.
2.125%
Convertible Senior Note due 2031
No.
[_____] |
[Initially]1
$[_________] |
CUSIP
No. [_________]
Marathon
Digital Holdings, Inc., a corporation duly organized and validly existing under the laws of the State of Nevada (the “Company,”
which term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received
hereby promises to pay to [CEDE & CO.]2 [_______]3, or registered assigns, the principal sum [as set forth
in the “Schedule of Exchanges of Notes” attached hereto]4 [of $[_______]]5, which amount, taken together
with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $300,000,000 in aggregate
at any time (as increased by an amount equal to the aggregate principal amount of any 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), in accordance with the
rules and procedures of the Depositary, on September 1, 2031, and interest thereon as set forth below.
This
Note shall bear interest at the rate of 2.125% per year from August 14, 2024, or from the most recent date to which interest had been
paid or provided for to, but excluding, the next scheduled Interest Payment Date until September 1, 2031. Interest is payable semi-annually
in arrears on each March 1 and September 1, commencing on March 1, 2025, to Holders of record at the close of business on the preceding
February 15 and August 15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth
in Section 4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect
of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable
pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional Interest
in any provision therein shall not be construed as excluding Additional Interest in those provisions thereof where such express mention
is not made.
Any
Defaulted Amounts shall accrue interest per annum at the rate borne by the Notes from, and including, the relevant payment date to, but
excluding, the date on which such Defaulted Amounts shall have been paid by the Company, at its election, in accordance with Section
2.03(c) of the Indenture.
1
Include if a global note.
2
Include if a global note.
3
Include if a physical note.
4
Include if a global note.
5
Include if a physical note.
The
Company shall pay or cause the Paying Agent to pay the principal of and interest on this Note, if and so long as such Note is a Global
Note, by wire transfer in immediately available funds to the Depositary or its nominee, as the case may be, as the registered Holder
of such Note. As provided in and subject to the provisions of the Indenture, the Company shall pay or cause the Paying Agent to pay the
principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The
Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its Corporate Trust Office
located in the United States of America, as a place where Notes may be presented for payment or for registration of transfer and exchange.
Reference
is made to the further provisions of this Note set forth on the reverse hereof, including, without limitation, provisions giving the
Holder of this Note the right to convert this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock,
as applicable, on the terms and subject to the limitations set forth in the Indenture. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This
Note, and any claim, controversy or dispute arising under or related to this Note, shall be construed in accordance with and governed
by the laws of the State of New York (without regard to the conflicts of laws provisions thereof).
In
the case of any conflict between this Note and the Indenture, the provisions of the Indenture shall control and govern.
This
Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed manually
by the Trustee or a duly authorized authenticating agent under the Indenture.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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MARATHON
DIGITAL HOLDINGS, INC. |
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By: |
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Name: |
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Title: |
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Dated:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION |
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U.S.
BANK TRUST COMPANY, NATIONAL ASSOCIATION |
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as
Trustee, certifies that this is one of the Notes described in the within-named Indenture. |
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By: |
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Authorized
Signatory |
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[FORM
OF REVERSE OF NOTE]
Marathon
Digital Holdings, Inc.
2.125%
Convertible Senior Note due 2031
This
Note is one of a duly authorized issue of Notes of the Company, designated as its 2.125% Convertible Senior Notes due 2031 (the “Notes”),
limited to the aggregate principal amount of $300,000,000 (as increased by an amount equal to the aggregate principal amount of any 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), all issued or to be issued under and pursuant to an Indenture dated as of August 14, 2024 (the “Indenture”),
between the Company and U.S. Bank Trust Company, National Association (the “Trustee”), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the Holders of the Notes. Additional Notes may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined in this
Note shall have the respective meanings set forth in the Indenture.
In
case certain Events of Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by
either the Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.
Subject
to the terms and conditions of the Indenture, the Company will make all payments and deliveries in respect of the Repurchase Price on
the Repurchase Date, the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date, the Redemption Price on the relevant
Redemption Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to a Paying Agent
to collect such payments in respect of the Note. The Company will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
The
Indenture contains provisions permitting the Company and the Trustee in certain circumstances, without the consent of the Holders of
the Notes, and in certain other circumstances, with the consent of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms
of the Indenture and the Notes as described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders
of a majority in aggregate principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive
any past Default or Event of Default under the Indenture and its consequences.
Each
Holder shall have the right to receive payment or delivery, as the case may be, of (x) the principal (including the Redemption Price,
the Repurchase Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and
(z) the consideration due upon conversion of, this Note at the place, at the respective times, at the rate and in the lawful money or
shares of Common Stock, as the case may be, herein prescribed.
The
Notes are issuable in registered form without coupons in denominations of $1,000 principal amount and integral multiples thereof. At
the office or agency of the Company referred to on the face hereof, and in the manner and subject to the limitations provided in the
Indenture, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations, without payment of
any service charge but, if required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax
that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes
being different from the name of the Holder of the old Notes surrendered for such exchange.
The
Notes shall be redeemable at the Company’s option on or after September 6, 2028 in accordance with the terms and subject to the
conditions specified in the Indenture. No sinking fund is provided for the Notes.
Upon
the occurrence of a Fundamental Change prior to the Maturity Date, the Holder has the right, at such Holder’s option, to require
the Company to repurchase for cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral
multiples thereof) on the Fundamental Change Repurchase Date at a price equal to the Fundamental Change Repurchase Price.
The
Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes or
any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on March 1, 2029 at a price equal to the Repurchase
Price.
Subject
to the provisions of the Indenture, the Holder hereof has the right, at its option, during certain periods and upon the occurrence of
certain conditions specified in the Indenture, prior to the close of business on the second Scheduled Trading Day immediately preceding
the Maturity Date, to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common
Stock or a combination of cash and shares of Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted
from time to time as provided in the Indenture.
ABBREVIATIONS
The
following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN
COM = as tenants in common
UNIF
GIFT MIN ACT = Uniform Gifts to Minors Act
CUST
= Custodian
TEN
ENT = as tenants by the entireties
JT
TEN = joint tenants with right of survivorship and not as tenants in common
Additional
abbreviations may also be used though not in the above list.
SCHEDULE
A6
SCHEDULE
OF EXCHANGES OF NOTES
Marathon
Digital Holdings, Inc.
2.125%
Convertible Senior Notes due 2031
The
initial principal amount of this Global Note is [_______] DOLLARS ($[_________]). The following increases or decreases in this Global
Note have been made:
Date
of
exchange |
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Amount
of
decrease in
principal amount
of this Global Note |
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Amount
of
increase in
principal amount
of this Global Note |
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Principal
amount
of this Global Note
following such
decrease or increase |
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Signature
of
authorized signatory
of Trustee or
Custodian |
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6
Include if a global note.
ATTACHMENT
1
[FORM
OF NOTICE OF CONVERSION]
To:
U.S. Bank Trust Company, National Association, as Conversion Agent
The
undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal
amount or an integral multiple thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common
Stock, as applicable, in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any
shares of Common Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes
representing any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name
has been indicated below. If any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance
with Section 14.02(d) and Section 14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest
accompanies this Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
Dated: |
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Signature(s) |
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Signature
Guarantee |
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Signature(s)
must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if shares
of Common Stock are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder. |
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Fill
in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder: |
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(Name) |
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(Street
Address) |
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(City,
State and Zip Code) |
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Please
print name and address |
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Principal
amount to be converted (if less than all): $______,000 |
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NOTICE:
The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular
without alteration or enlargement or any change whatever. |
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Security or Other Taxpayer |
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Identification
Number |
ATTACHMENT
2
[FORM
OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
To:
U.S. Bank Trust Company, National Association, as Paying Agent
The
undersigned registered owner of this Note hereby acknowledges receipt of a notice from Marathon Digital Holdings, Inc. (the “Company”)
as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests
and instructs the Company to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to in this
Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof)
below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record Date and
on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental
Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
In
the case of Physical Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
Dated:
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Security or Other Taxpayer |
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Number |
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Principal
amount to be repurchased (if less than all): $______,000 |
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NOTICE:
The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular
without alteration or enlargement or any change whatever. |
ATTACHMENT
3
[FORM
OF REPURCHASE NOTICE]
To: |
Marathon Digital Holdings,
Inc. |
U.S.
Bank Trust Company, National Association, as Paying Agent
The
undersigned registered owner of this Note hereby acknowledges receipt of a notice from Marathon Digital Holdings, Inc. (the “Company”)
regarding the right of Holders to elect to require the Company to repurchase the entire principal amount of this Note, or the portion
thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, in accordance with the applicable provisions
of the Indenture referred to in this Note, at the Repurchase Price to the registered Holder hereof. Capitalized terms used herein but
not defined shall have the meanings ascribed to such terms in the Indenture.
In
the case of certificated Notes, the certificate numbers of the Notes to be purchased are as set forth below:
Certificate
Number(s): _____________________
Dated:
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Security or Other Taxpayer |
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Identification
Number |
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Principal
amount to be repurchased (if less than all): $______,000 |
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NOTICE:
The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular
without alteration or enlargement or any change whatever. |
ATTACHMENT
4
[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 _____________________
attorney to transfer the said Note on the books of the Company, with full power of substitution in the premises.
In
connection with any transfer of the within Note 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 Marathon Digital Holdings, Inc. or a subsidiary thereof; or
☐
Pursuant to a registration statement that has become or been declared effective under the Securities Act of 1933, as amended; or
☐
Pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended; or
☐
Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Dated:
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Guarantee |
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Signature(s)
must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15 if Notes
are to be delivered, other than to and in the name of the registered holder. |
|
|
NOTICE:
The signature on the assignment must correspond with the name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
Exhibit
99.1
Marathon
Digital Holdings, Inc. Completes $300 Million Offering of 2.125% Convertible Senior Notes Due 2031, Purchases $249 Million of Bitcoin
Fort
Lauderdale, FL, August 14, 2024 (GLOBE NEWSWIRE) — Marathon Digital Holdings, Inc. (NASDAQ: MARA) (“MARA” or the “Company”),
a global leader in leveraging digital asset compute to support the energy transformation, today announced the closing of its offering
of 2.125% convertible senior notes due 2031 (the “notes”). The aggregate principal amount of the notes sold in the offering
was $300 million, which includes $50 million aggregate principal amount of notes issued pursuant to an option to purchase, within a 13-day
period beginning on, and including, the date on which the notes were first issued, granted to the initial purchasers under the purchase
agreement, which the initial purchasers exercised in full on August 13, 2024 and which additional purchase was completed on August 14,
2024. The notes were sold in a private offering to persons reasonably believed to be qualified institutional buyers in reliance on Rule
144A under the Securities Act of 1933, as amended (the “Securities Act”).
The
net proceeds from the sale of the notes were approximately $292.5 million, after deducting the initial purchasers’ discounts and
commissions but before estimated offering expenses payable by MARA. On August 14, 2024, MARA also announced that, during the period between
August 12, 2024 and August 14, 2024, MARA acquired approximately 4,144 bitcoin for approximately $249 million in cash, using proceeds
from the sale of the notes, at an average price of approximately $59,500 per bitcoin, inclusive of fees and expenses. MARA intends to
use the remaining net proceeds from the sale of the notes to acquire additional bitcoin and for general corporate purposes, which may
include working capital, strategic acquisitions, expansion of existing assets, and repayment of debt and other outstanding obligations.
The
notes are unsecured, senior obligations of MARA and bear interest at a rate of 2.125% per annum, payable semi-annually in arrears on
March 1 and September 1 of each year, beginning on March 1, 2025. The notes will mature on September 1, 2031, unless earlier repurchased,
redeemed or converted in accordance with their terms. Subject to certain conditions, on or after September 6, 2028, MARA may redeem for
cash all or any portion of the notes 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, if the last reported sale price of MARA’s common stock has
been at least 130% of the conversion price then in effect for a specified period of time ending on, and including, the trading day immediately
before the date MARA provides the notice of redemption. If MARA redeems fewer than all the outstanding notes, at least $75 million aggregate
principal amount of notes must be outstanding and not subject to redemption as of the relevant redemption notice date.
Holders
of notes may require MARA to repurchase for cash all or any portion of their notes on March 1, 2029 or upon the occurrence of certain
events that constitute a fundamental change under the indenture governing the notes at a repurchase price equal to 100% of the principal
amount of the notes to be repurchased, plus any accrued and unpaid interest to, but excluding, the date of repurchase. In connection
with certain corporate events or if MARA calls any note for redemption, it will, under certain circumstances, be required to increase
the conversion rate for holders who elect to convert their notes in connection with such corporate event or notice of redemption.
The
notes are convertible into cash, shares of MARA’s common stock, or a combination of cash and shares of MARA’s common stock,
at MARA’s election. Prior to March 1, 2031, the notes are convertible only upon the occurrence of certain events and during certain
periods, and thereafter, at any time until the close of business on the second scheduled trading day immediately preceding the maturity
date.
The
conversion rate for the notes is initially 52.9451 shares of MARA’s common stock per $1,000 principal amount of notes, which is
equivalent to an initial conversion price of approximately $18.89 per share. The conversion rate is subject to adjustment upon the occurrence
of certain events.
The
notes were sold to persons reasonably believed to be qualified institutional buyers pursuant to Rule 144A under the Securities Act. The
offer and sale of the notes and the shares of MARA’s common stock issuable upon conversion of the notes, if any, have not been
and will not be registered under the Securities Act or the securities laws of any other jurisdiction, and the notes and any such shares
may not be offered or sold in the United States absent registration or an applicable exemption from such registration requirements. The
offering of the notes was made only by means of a private offering memorandum.
This
press release shall not constitute an offer to sell, or a solicitation of an offer to buy, the notes, nor shall there be any sale of
the notes in any state or jurisdiction in which such offer, solicitation or sale would be unlawful under the securities laws of any such
state or jurisdiction.
About
MARA
MARA
(NASDAQ:MARA) is a global leader in digital asset compute that develops and deploys innovative technologies to build a more sustainable
and inclusive future. MARA secures the world’s preeminent blockchain ledger and supports the energy transformation by converting
clean, stranded, or otherwise underutilized energy into economic value.
Forward-Looking
Statements
Statements
in this press release about future expectations, plans, and prospects, as well as any other statements regarding matters that are not
historical facts, may constitute “forward-looking statements” within the meaning of The Private Securities Litigation Reform
Act of 1995. These statements include, but are not limited to, statements relating to MARA’s use of the net proceeds of the offering.
The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,”
“intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,”
“target,” “will,” “would,” and similar expressions are intended to identify forward-looking statements,
although not all forward-looking statements contain these identifying words. Actual results may differ materially from those indicated
by such forward-looking statements as a result of various important factors, including the factors discussed in the “Risk Factors”
section of MARA’s Annual Report on Form 10-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on
February 28, 2024, as amended on May 24, 2024, the “Risk Factors” section of MARA’s Quarterly Report on Form 10-Q filed
with the SEC on August 1, 2024 and the risks described in other filings that MARA may make from time to time with the SEC. Any forward-looking
statements contained in this press release speak only as of the date hereof, and MARA specifically disclaims any obligation to update
any forward-looking statement, whether as a result of new information, future events, or otherwise, except to the extent required by
applicable law.
MARA
Company Contact:
Telephone:
800-804-1690
Email:
ir@mara.com
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