SentinelOne完成12.5亿美元（含超额配售共14.375亿）2031年到期零息可转债发行，同步1.5亿美元回购与capped call，但属此前已公告、已定价交易的交割备案，无新增信息

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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):
October 13, 2026
SENTINELONE, INC.
(Exact name of registrant as specified in its charter)
Delaware
001-40531
99-0385461
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
444 Castro Street
Suite
400
Mountain View
California
94041
(Address, including zip code, of
principal executive offices)
Registrant’s telephone number, including
area code:
(
855
)
868-3733
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 (see General
Instruction A.2. below):
¨
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
Class A common stock, par value $0.0001
S
New York Stock Exchange
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.
Indenture and Notes
On October 16, 2026, SentinelOne, Inc.
(the “Company”) completed its previously announced private offering (the “Offering”) of $1,250,000,000 aggregate
principal amount of 0.00% Convertible Senior Notes due 2031 (the “Notes”), including the exercise in full of the initial purchasers’
option to purchase up to an additional $187,500,000 aggregate principal amount of the Notes (the “Option”). The Notes were
issued pursuant to an indenture, dated October 16, 2026 (the “Indenture”), between the Company and U.S. Bank Trust Company,
National Association, as trustee.
The Notes are general senior unsecured obligations
of the Company and will mature on October 1, 2031, unless earlier converted, redeemed or repurchased. The Notes will not bear regular
interest, and the principal amount of the Notes will not accrete. Special interest will accrue on the Notes in the circumstances and at
the rates provided in the Indenture. Any special interest will be payable semiannually in arrears on April 1 and October 1 of
each year, beginning on April 1, 2027 (if and to the extent that special interest is then payable on the Notes). Holders may convert
all or any portion of their Notes at their option at any time prior to the close of business on the business day immediately preceding
July 1, 2031 only under the following circumstances: (1) during any fiscal quarter of the Company commencing after the Company’s
fiscal quarter ending on January 31, 2027 (and only during such fiscal quarter), if the last reported sale price of the Company’s
Class A common stock, par value $0.0001 per share (the “common stock”), for at least 20 trading days (whether or not
consecutive) during a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding
fiscal quarter is greater than or equal to 150% of the conversion price for the Notes on each applicable trading day; (2) during
the five business day period after any 10 consecutive trading day period (the “measurement period”) in which the “trading
price” (as defined in the Indenture) per $1,000 principal amount of the Notes 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 and the conversion rate on each such trading day; (3) if
the Company calls such Notes for redemption, at any time prior to the close of business on the second scheduled trading day immediately
preceding the redemption date, but only with respect to the Notes called (or deemed called, in the case of an optional redemption (as
defined below)) for redemption; or (4) upon the occurrence of specified corporate events as set forth in the Indenture. On or after
July 1, 2031, until the close of business on the second scheduled trading day immediately preceding the maturity date, holders of
the Notes may convert all or any portion of their Notes at any time, regardless of the foregoing circumstances. Upon conversion, the Company
will pay or deliver, as the case may be, cash, shares of common stock or a combination of cash and shares of common stock, at the Company’s
election, in the manner and subject to the terms and conditions provided in the Indenture.
The conversion rate for the Notes will initially
be 32.0379 shares of common stock per $1,000 principal amount of Notes (equivalent to an initial conversion price of approximately $31.21
per share of common stock). The initial conversion price of the Notes represents a premium of approximately 30.0% over the last reported
sale price of $24.01 per share of the common stock on the New York Stock Exchange on October 13, 2026. The conversion rate for the
Notes is subject to adjustment in some events in accordance with the terms of the Indenture but will not be adjusted for any accrued and
unpaid special interest. In addition, following certain corporate events that occur prior to the maturity date of the Notes or if the
Company delivers a notice of redemption, the Company will, in certain circumstances, increase the conversion rate of the Notes for a holder
who elects to convert its Notes in connection with such a corporate event or convert its Notes called (or deemed called, in the case of
an optional redemption) for redemption during the related redemption period (as set forth in the Indenture), as the case may be.
The Company may not redeem the Notes prior to
October 9, 2029, except in the event of a cleanup redemption (as defined below). The Company may redeem for cash all or any portion
of the Notes (subject to the partial redemption limitation described below), at its option, on a redemption date on or after October 9,
2029 and before the 31st scheduled trading day immediately prior to the maturity date if the last reported sale price of the common stock
has been at least 130% of the conversion price for the Notes then in effect for at least 20 trading days (whether or not consecutive)
during any 30 consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day
immediately preceding the date on which the Company provides the related notice of redemption (such redemption, an “optional redemption”).
If the Company elects to redeem less than all of the outstanding Notes in an optional redemption, at least $100,000,000 aggregate principal
amount of Notes must be outstanding and not subject to such optional redemption as of, and after giving effect to, delivery of the relevant
notice of redemption (such limitation, the “partial redemption limitation”). In addition, subject to certain conditions described
in the Indenture, the Company may redeem for cash all, but not less than all, of the Notes at any time prior to the 31st scheduled trading
day immediately preceding the maturity date, if the aggregate principal amount of the Notes that remains outstanding as of the date the
Company sends the related notice of redemption is less than $100,000,000 (such redemption, a “cleanup redemption”). The redemption
price for any optional redemption or cleanup redemption will be equal to 100% of the principal amount of the Notes to be redeemed, plus
accrued and unpaid special interest, if any, to, but excluding, the relevant redemption date. No sinking fund is provided for the Notes.
If the Company undergoes a “fundamental
change” (as defined in the Indenture), then, subject to certain conditions and except as described in the Indenture, 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 accrued and unpaid special interest, if any, to, but excluding, the fundamental
change repurchase date.
The Indenture includes customary covenants and
sets forth certain events of default. The following events are considered “events of default” under the Indenture:
·
default in any payment of special interest, if any, on any Note when due and
payable and the default continues for a period of 30 days;
·
default in the payment of principal of any Note when due and payable at its
stated maturity, upon optional redemption, upon cleanup redemption, upon any required repurchase, upon declaration of acceleration or
otherwise;
·
failure by the Company to comply with its obligation to convert the Notes in
accordance with the Indenture upon exercise of a holder’s conversion right, and such failure continues for five business days;
·
failure by the Company to give (i) a fundamental change notice or notice of
a make-whole fundamental change, in either case when due and such failure continues for five business days, or (ii) notice of a specified
corporate transaction when due and such failure continues for three business days;
·
failure by the Company to comply with its obligations in respect of any consolidation,
merger or sale of assets;
·
failure by the Company to comply with any of the other agreements in the Notes
or the Indenture for 60 days after receipt of written notice of such failure from the trustee or the holders of at least 25% in principal
amount of the Notes then outstanding;
·
default by the Company or any of its significant subsidiaries (as defined in
the Indenture) 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 with a principal amount in excess of $80,000,000 (or its foreign currency
equivalent), in the aggregate of the Company and/or any of the Company’s significant subsidiaries, whether such indebtedness now
exists or shall hereafter be created, (i) resulting in such indebtedness becoming or being declared due and payable prior to its stated
maturity date or (ii) constituting a failure to pay the principal of any such debt when due and payable (after the expiration of all
applicable grace periods) at its stated maturity, upon required repurchase, upon declaration of acceleration or otherwise, and in the
cases of clauses (i) and (ii), such acceleration shall not have been rescinded or annulled or such failure to pay or default shall not
have been cured or waived, or such indebtedness is not paid or discharged, as the case may be, within 45 days after written notice to
the Company by the trustee or to the Company and the trustee by holders of at least 25% in aggregate principal amount of the Notes then
outstanding in accordance with the Indenture; and
·
certain events of bankruptcy, insolvency or reorganization of the Company or
any of the Company’s significant subsidiaries.
If certain bankruptcy and insolvency-related events
of default occur with respect to the Company, the principal of, and accrued and unpaid special interest, if any, on, all of the Notes
then outstanding shall automatically become due and payable. If an event of default with respect to the Notes, other than certain bankruptcy
and insolvency-related events of default with respect to the Company, occurs and is continuing, the trustee, by notice to the Company,
or the holders of at least 25% in principal amount of the outstanding Notes by notice to the Company and the trustee, may declare 100%
of the principal of and accrued and unpaid special interest, if any, on all the outstanding Notes to be due and payable. Notwithstanding
the foregoing, the Indenture provides that, to the extent the Company so elects, the sole remedy for an event of default relating to the
Company’s failure to comply with certain reporting covenants in the Indenture will, for the first 365 days after the occurrence
of such an event of default, consist exclusively of the right to receive special interest on the Notes.
The Indenture provides that the Company shall
not consolidate with or merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties
and assets of the Company and its subsidiaries, taken as a whole, 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) (each, a “business combination event”),
unless: (i) the resulting, surviving or transferee person (if not the Company) is a “qualified successor entity” (as
defined in the Indenture) (such qualified successor entity, the “successor entity”) organized and existing under the laws
of the United States of America, any state thereof or the District of Columbia, and such successor entity (if not the Company) expressly
assumes by supplemental indenture all of the Company’s obligations under the Notes and the Indenture; and (ii) immediately
after giving effect to such business combination event, no default or event of default has occurred and is continuing under the Indenture.
A copy of the Indenture is attached hereto as
Exhibit 4.1 (including the form of the Notes attached hereto as Exhibit 4.2) and is incorporated herein by reference (and this
description is qualified in its entirety by reference to such document).
Capped Call Transactions
On October 13, 2026, in connection with the
pricing of the Notes, and on October 14, 2026, in connection with the exercise in full by the initial purchasers of the Option, the
Company entered into privately negotiated capped call transactions with certain of the initial purchasers or affiliates thereof and certain
other financial institutions (the “option counterparties”), pursuant to capped call confirmations in substantially the form
filed as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference (and this description is
qualified in its entirety by reference to such document). The capped call transactions cover, subject to customary adjustments, the number
of shares of common stock initially underlying the Notes. The capped call transactions are expected generally to reduce the potential
dilution to the common stock upon any conversion of the Notes and/or offset any cash payments the Company is required to make in excess
of the principal amount of converted Notes, as the case may be, with such reduction and/or offset subject to a cap based on a cap price
initially equal to $48.02 per share of common stock (which represents a premium of 100.0% over the last reported sale price of the common
stock of $24.01 per share on the New York Stock Exchange on October 13, 2026), and is subject to certain adjustments under the terms
of the capped call transactions.
Proceeds
The Company’s net proceeds from the Offering,
including the exercise in full by the initial purchasers of the Option, were approximately $1,408 million after deducting the initial
purchasers’ discounts and commissions and estimated offering expenses payable by the Company. The Company used approximately $151.4
million of the net proceeds to pay the cost of the capped call transactions described above. The Company used approximately $150.0 million
of the net proceeds to repurchase shares of its common stock from purchasers of the Notes in the Offering in privately negotiated transactions
with or through one of the initial purchasers or its affiliates concurrently with the pricing of the Notes (the “Share Repurchases”).
The Company expects to use the remainder of the net proceeds for general corporate purposes, additional repurchases of its common stock,
working capital, capital expenditures, and potential acquisitions and strategic transactions or investments involving businesses, technologies,
or products that the Company may identify from time to time.
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 under 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 under 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 registration provided by Section 4(a)(2) of the Securities Act of 1933,
as amended (the “Securities Act”), and for resale by the initial purchasers to persons reasonably believed to be qualified
institutional buyers pursuant to the exemption from registration provided by Rule 144A under the Securities Act. The Company relied
on these exemptions from registration based in part on representations made by the initial purchasers in the purchase agreement dated
October 13, 2026 by and among the Company and the representatives of the initial purchasers.
The Notes and the shares of common stock issuable
upon conversion of the Notes, if any, have not 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 registration statement
for the resale of the Notes or any shares of common stock issuable upon conversion of the Notes.
Based on the initial conversion rate, the Notes
are convertible into 46,054,481 shares of common stock and, in limited circumstances, are convertible into a maximum of 59,870,868 shares
of common stock. The Notes are subject to customary anti-dilution adjustment provisions. To the extent that any shares of common stock
are issued upon conversion of the Notes, they will be issued in transactions anticipated to be exempt from registration under the Securities
Act by virtue of Section 3(a)(9) thereof because no commission or other remuneration is expected to be paid in connection with
conversion of the Notes and any resulting issuance of shares of common stock.
Item 8.01 Other Events.
Share Repurchases
Concurrently with the pricing of the Notes, the
Company used approximately $150.0 million of the net proceeds from the Offering to repurchase approximately 6.2 million shares of its
common stock in the Share Repurchases. The purchase price per share of the common stock repurchased in the Share Repurchases was equal
to the closing price per share of the common stock on the New York Stock Exchange on October 13, 2026, which was $24.01 per share.
The Share Repurchases are expected to settle on or about October 16, 2026.
Press Releases
On October 13, 2026, the Company issued a
press release announcing the proposed Offering. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated
herein by reference.
On October 14, 2026, the Company issued a
press release announcing the pricing of the Notes. A copy of the press release is attached hereto as Exhibit 99.2 and is incorporated
herein by reference.
Forward-Looking Statements
This Current Report on Form 8-K contains
forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended, including statements
regarding the anticipated use of proceeds from the Offering, the effects of the Share Repurchases, and expectations regarding the effect
of the capped call transactions and the actions of the option counterparties and their respective affiliates. In some cases, forward-looking
statements can be identified by terminology such as “will,” “may,” “should,” “could,”
“expects,” “intends,” “plans,” “aims,” “anticipates,” “believes,”
“estimates,” “predicts,” “potential,” “continue,” or the negative of these terms or other
comparable terminology, although not all forward-looking statements contain these words. The forward-looking statements in this Current
Report on Form 8-K are neither promises nor guarantees, and you should not place undue reliance on these forward-looking statements
because they involve known and unknown risks, uncertainties, and other factors, many of which are beyond the Company’s control and
which could cause actual results to differ materially from those expressed or implied by these forward-looking statements. These risks,
uncertainties, and other factors include, among others, those risks and uncertainties described under the heading “Risk Factors”
in the Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2026 and Quarterly Report on Form 10-Q
for the fiscal quarter ended July 31, 2026, each filed with the U.S. Securities and Exchange Commission (the “SEC”),
and in subsequent filings made by the Company with the SEC, which are available on the SEC’s website at www.sec.gov. Except as required
by law, the Company disclaims any intention or responsibility for updating or revising any forward-looking statements contained in this
Current Report on Form 8-K in the event of new information, future developments or otherwise. These forward-looking statements are
based on the Company’s current expectations and speak only as of the date of this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No.
Description
4.1
Indenture, dated as of October 16, 2026, by and between SentinelOne, Inc. and U.S. Bank Trust Company, National Association, as Trustee.
4.2
Form of Global Note, representing SentinelOne, Inc.’s 0.00% Convertible Senior Notes due 2031 (included as Exhibit A to the Indenture filed as Exhibit 4.1).
10.1
Form of Confirmation for Capped Call Transactions.
99.1
Press release titled “SentinelOne Announces Proposed Private Placement of $1.25 Billion of Convertible Senior Notes Due 2031”.
99.2
Press release titled “SentinelOne Announces Pricing of Offering of $1.25 Billion of 0.00% Convertible Senior Notes Due 2031”.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SENTINELONE, INC.
Date: October 16, 2026
By:
/s/ Sonalee Parekh
Sonalee Parekh
Chief Financial Officer

----- tm2627397d1_ex10-1.htm -----
EX-10.1
3
tm2627397d1_ex10-1.htm
EXHIBIT 10.1
Exhibit 10.1
BID VERSION
[_________]
1
To:
SentinelOne, Inc.
444 Castro Street, Suite 400
Mountain View, California 94041
From:
[
]
Re:
[Base]
2
[Additional]
3
Capped Call Transaction
Ref. No:
[
]
4
Date:
[
], 2026
Dear Ladies and Gentlemen:
The
purpose of this communication (this “
Confirmation
”) is to set forth the terms and conditions of the above-referenced
transaction entered into on the Trade Date specified below (the “
Transaction
”) between [___________] (“
Dealer
”)[,
represented by [_________] (“
Agent
”) as its agent,] and SentinelOne
, Inc. (“
Counterparty
”).
This communication constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below.
1.
This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “
2006
Definitions
”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “
Equity Definitions
”,
and together with the 2006 Definitions, the “
Definitions
”), in each case, as published by the International Swaps
and Derivatives Association, Inc. (“
ISDA
”). In the event of any inconsistency between the 2006 Definitions and the
Equity Definitions, the Equity Definitions will govern and in the event of any inconsistency between terms defined in the Equity Definitions
and this Confirmation, this Confirmation shall govern.
This Confirmation evidences a complete and binding
agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall
be subject to an agreement (the “
Agreement
”) in the form of the ISDA 2002 Master Agreement as if Dealer and Counterparty
had executed an agreement in such form on the Trade Date (but without any Schedule except for (i) the election of the laws of the State
of New York as the governing law (without reference to choice of law doctrine), [(ii) the election of an executed guarantee of [__________]
(“
Guarantor
”) dated as of the Trade Date in substantially the form attached hereto as Schedule 1 as a Credit Support
Document, (iii) the election of Guarantor as Credit Support Provider in relation to Dealer]
5
, [(ii)][(iv)] the election that
the “Cross-Default” provisions of Section 5(a)(vi) of the Agreement shall apply to Dealer, with (a) a “Threshold
Amount” of 3% of the shareholders’ equity of [Dealer][Dealer’s ultimate parent] on the Trade Date, (b) “Specified
Indebtedness” having the meaning set forth in Section 14 of the Agreement, except that it shall not include any obligation in respect
of deposits received in the ordinary course of Dealer’s [or Guarantor’s] banking business, (c) the phrase “, or
becoming capable at such time of being declared,” being deleted from clause (1) of such Section 5(a)(vi) of the Agreement and (d)
the following sentence being added to the end of Section 5(a)(vi) of the Agreement: “Notwithstanding the foregoing, a default under
subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative
or operational nature; (ii) funds were available to enable the relevant party to make payment when due; and (iii) the payment is made
within two Local Business Days of such party’s receipt of written notice of its failure to pay”, and [(iii)][(v)] the election
that the “Default Under Specified Transactions” provision of Section 5(a)(v) of the Agreement shall not apply to Counterparty).
1
Include Dealer name, address and logo
2
Include for base call option.
3
Include for additional call option.
4
If applicable
5
Requested if Dealer is not the highest rated entity in group, typically from Parent.
1
All provisions contained in, or incorporated by
reference to, the Agreement will govern this Confirmation except as expressly modified herein. In the event of any inconsistency between
this Confirmation and either the Definitions or the Agreement, this Confirmation shall govern.
The Transaction hereunder shall be the sole Transaction
under the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation or other agreement
between Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding
anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer and Counterparty
are parties, the Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master
Agreement.
2.
The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction
to which this Confirmation relates are as follows:
General
Terms
:
Trade
Date:
[____],
2026
Effective
Date:
[____]
6
,
2026, or such other date as agreed by the parties in writing.
Components:
The Transaction
will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number
of Options and Expiration Date set forth in
Annex A
to this Confirmation.  The exercise, valuation and settlement
of the Transaction will be effected separately for each Component as if each Component were a separate Transaction under the Agreement.
Option
Style:
“European”,
as described under “Procedures for Exercise” below.
Option
Type:
Call
Seller:
Dealer
Buyer:
Counterparty
Shares:
The Class
A common stock of Counterparty, par value USD 0.0001 per share (Ticker Symbol: “S”).
Number
of Options:
For each
Component, as provided in
Annex A
to this Confirmation.
7
Option
Entitlement:
One Share
per Option
Strike
Price:
USD [_____]
Cap
Price:
USD [_____];
provided
that in no event shall the Cap Price be reduced to an amount less than the Strike Price in connection with any adjustment
by the Calculation Agent under this Confirmation.
Number
of Shares:
As of
any date, a number of Shares equal to the product of (i) the aggregate Number of Options for all Components and (ii) the Option Entitlement.
6
To be the closing date for the Convertible Notes offering.
7
For the base capped call, the total should be equal to (i) the number of Convertible Notes in principal
amount of USD 1,000 initially issued on the closing date for the Convertible Notes (excluding any Convertible Notes sold pursuant to
the option to purchase additional notes)
multiplied by
(ii) the initial conversion rate. For the additional capped call, the total
should be equal to (i) the number of additional Convertible Notes in principal amount of USD 1,000
multiplied by
(ii) the initial
conversion rate.
2
Premium:
USD
[_____]
; Dealer and Counterparty hereby agree that notwithstanding anything to the contrary herein or in the Agreement, following
the payment of the Premium, in the event that (a) an Early Termination Date (whether as a result of an Event of Default or a Termination
Event) (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement that is within Counterparty’s
control) occurs or is designated with respect to the Transaction and, as a result, Counterparty owes to Dealer the amount calculated
under Section 6(d) and Section 6(e) or otherwise under the Agreement (calculated as if the Transaction terminated on such Early Termination
Date were the sole Transaction under the Agreement) or (b) Counterparty owes to Dealer, pursuant to Sections 12.2, 12.3, 12.6, 12.7,
12.8 or 12.9 of the Equity Definitions or otherwise under the Equity Definitions, an amount calculated under Section 12.8 of the
Equity Definitions, such amount shall be deemed to be zero.
Premium
Payment Date:
The Effective
Date
Exchange:
The New
York Stock Exchange
Related
Exchange:
All Exchanges;
provided
that Section 1.26 of the Equity Definitions shall be amended to add the words “United States” before
the word “exchange” in the tenth line of such Section.
Procedures
for Exercise
:
Expiration
Time:
The
Valuation Time
Expiration
Date:
For any
Component, as provided in
Annex A
to this Confirmation (or, if such date is not a Scheduled Valid Day, the next following
Scheduled Valid Day that is not already an Expiration Date for another Component);
provided
that if that date is a Disrupted
Day, the Expiration Date for such Component shall be the first succeeding Scheduled Valid Day that is not a Disrupted Day and is
not or is not deemed to be an Expiration Date in respect of any other Component of the Transaction hereunder; and
provided further
that in no event shall the Expiration Date be postponed to a date later than the Final Termination Date and, notwithstanding anything
to the contrary in this Confirmation or the Equity Definitions, the Relevant Price for such Expiration Date that occurs on the Final
Termination Date and is a Disrupted Day shall be the prevailing market value per Share determined by the Calculation Agent in a good
faith and commercially reasonable manner. Notwithstanding the foregoing or anything to the contrary in the Equity Definitions, if
a Market Disruption Event occurs on any Expiration Date, the Calculation Agent may determine in a good faith and commercially reasonable
manner that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make commercially reasonable
adjustments to the Number of Options for the relevant Component for which such day shall be the Expiration Date, shall designate
the Scheduled Valid Day determined in the manner described in the immediately preceding sentence as the Expiration Date for the remaining
Options for such Component and shall determine in good faith and a commercially reasonable manner the Relevant Price based on transactions
in the Shares on such Disrupted Day taking into account the nature and duration of such Market Disruption Event on such day. Any
Scheduled Valid Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall
be deemed not to be a Scheduled Valid Day; if a closure of the Exchange prior to its normal close of trading on any Scheduled Valid
Day is scheduled following the date hereof, then such Scheduled Valid Day shall be deemed to be a Disrupted Day in full. Section
6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.
3
Final
Termination Date:
December
26, 2031
Automatic
Exercise:
Applicable,
which means that the Number of Options for the relevant Component will be deemed to be automatically exercised at the Expiration
Time on the Expiration Date for such Component if at such time such Component is In-the-Money, unless Buyer notifies Seller (in writing)
prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur with respect to such Component,
in which case Automatic Exercise will not apply with respect to such Component.  “
In-the-Money
” means,
in respect of any Component, that the Relevant Price on the Expiration Date for such Component is greater than the Strike Price for
such Component.
Valuation
Time:
At the
close of trading of the regular trading session on the Exchange;
provided
that if the principal trading session is extended,
the Calculation Agent shall determine the Valuation Time in a good faith and commercially reasonable manner.
Valuation
Date:
For any
Component, the Expiration Date therefor.
Market
Disruption Event:
Section 6.3(a) of the Equity Definitions is hereby amended
by (x) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in
Valuation Time or Knock-out Valuation Time, as the case may be,” in clause (ii) thereof and (y) adding at the end of the first
sentence thereof the words “; provided, however, that a restriction on trading imposed solely by Rule 201 of Regulation SHO
shall not constitute a Market Disruption Event”.
Section 6.3(d) of the Equity Definitions is hereby amended
by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
Settlement
Terms
:
Settlement
Method Election:
Applicable;
provided
that (a) Section 7.1
of the Equity Definitions is hereby amended by replacing the term “Physical Settlement” with the term “Net Share
Settlement”, (b) Counterparty must make a single irrevocable election for all Components and (c) if Counterparty is electing
Cash Settlement, such Settlement Method Election will be effective only if Counterparty represents and warrants to Dealer in writing
on the date of such Settlement Method Election that (i) Counterparty is not in possession of any material non-public information
regarding Counterparty or the Shares, and (ii) such election is being made in good faith and not as part of a plan or scheme to evade
compliance with the federal securities laws.
Without limiting the generality of the foregoing, Counterparty
acknowledges its responsibilities under applicable securities laws, and in particular Sections 9 and 10(b) of the Securities Exchange
Act of 1934, as amended (the “
Exchange Act
”) and the rules and regulations promulgated thereunder in respect of
such election.
4
Electing
Party:
Counterparty
Settlement
Method Election Date:
The second
Scheduled Valid Day prior to the scheduled Expiration Date for the Component with the earliest scheduled Expiration Date.
Default
Settlement Method:
Net Share
Settlement
Net
Share Settlement:
With respect to any Component, if Net Share Settlement is applicable
to the Options exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for
each such Component, a number of Shares (the “
Net Share Settlement Amount
”) equal to (i) the Daily Option Value
on the Expiration Date of such Component
divided by
(ii) the Relevant Price on such Expiration Date.
Dealer will deliver cash in lieu of any fractional Shares to be
delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the Expiration Date of such Component.
Cash
Settlement:
With
respect to any Component, if Cash Settlement is applicable to the Options exercised or deemed exercised hereunder, in lieu of Section 8.1
of the Equity Definitions, Dealer will pay to Counterparty, on the Settlement Date, an amount of cash (the “
Cash Settlement
Amount
”) equal to the Daily Option Value on the Expiration Date of such Component.
Daily
Option Value:
For any
Component, an amount equal to (i) the Number of Options in such Component,
multiplied by
(ii) the Option Entitlement,
multiplied
by
(iii) (A) the lesser of the Relevant Price on the Expiration Date of such Component and the Cap Price,
minus
(B) the
Strike Price on such Expiration Date;
provided
that if the calculation contained in clause (iii) above results in a negative
number, the Daily Option Value for such Component shall be deemed to be zero. In no event will the Daily Option Value be less than
zero.
Valid
Day:
A day
on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange. If the Shares are
not listed, quoted or traded on any U.S. securities exchange or any other market, “
Valid Day
” means a Business
Day.
Scheduled
Valid Day:
A day
that is scheduled to be a Valid Day on the Exchange. If the Shares are not listed, quoted or traded on any U.S. securities exchange
or any other market, “
Scheduled Valid Day
” means a Business Day.
Business
Day:
Any day
other than a Saturday, a Sunday or other day on which banking institutions are authorized or required by law, regulation or executive
order to close or be closed in the State of New York.
Relevant
Price:
On any
Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page
“S <equity> AQR” (or its equivalent successor if such page is not available) (the “
VWAP
”) in
respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such
Valid Day (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day,
as determined by the Calculation Agent in a good faith and commercially reasonable manner using, if practicable, a volume-weighted
average method substantially similar to the method for determining the VWAP). The Relevant Price will be determined without regard
to after-hours trading or any other trading outside of the regular trading session trading hours.
5
Settlement
Date:
For
all Components of the Transaction, the date one Settlement Cycle immediately following the Expiration Date for the Component with
the latest Expiration Date.
Settlement
Currency:
USD
Other
Applicable Provisions:
The provisions
of Sections 9.1(c), 9.8, 9.9, 9.11 and 9.12 of the Equity Definitions will be applicable, except that all references in such provisions
to “Physical Settlement” shall be read as references to “Net Share Settlement.”
Representation
and Agreement:
Notwithstanding
anything to the contrary in the Equity Definitions (including, but not limited to, Section 9.11 thereof), the parties acknowledge
that (i) any Shares delivered to Counterparty shall be, upon delivery, subject to restrictions, obligations and limitations arising
from Counterparty’s status as issuer of the Shares under applicable securities laws, (ii) Dealer may deliver any Shares required
to be delivered hereunder in certificated form in lieu of delivery through the Clearance System and (iii) any Shares delivered to
Counterparty may be “restricted securities” (as defined in Rule 144 under the Securities Act of 1933, as amended (the
“
Securities Act
”)).
Adjustments
:
Method
of Adjustment:
Calculation
Agent Adjustment;
provided
that the parties agree that (x) open market Share repurchases at prevailing market prices, (y)
Share repurchases through a dealer pursuant to accelerated share repurchases, forward contracts or similar transactions (including,
without limitation, any discount to average VWAP prices) that are entered into at prevailing market prices and in accordance with
customary market terms for transactions of such type to repurchase the Shares and (z) any reacquisition of Shares pursuant to Counterparty’s
employee incentive plans in connection with the related equity transactions, or Counterparty’s withholding of Shares to cover
tax liabilities associated with such equity transactions, shall not be considered Potential Adjustment Events so long as, in the
case of each of clause (x) and clause (y), such repurchases would not reduce the number of Shares outstanding to be less than  [
]
8
Shares, as determined by the Calculation Agent and as adjusted by the Calculation Agent to account for any subdivision
or combination with respect to the Shares.
Extraordinary
Events
:
New
Shares:
In the
definition of New Shares in Section 12.1(i) of the Equity Definitions, (a) the text in clause (i) thereof shall be deleted in its
entirety and replaced with “publicly quoted, traded or listed on any of The New York Stock Exchange, The Nasdaq Global Market
or The Nasdaq Global Select Market (or their respective successors),” and (b) the following phrase shall be inserted immediately
prior to the period: “and (iii) of a corporation organized under the laws of the United States, any State thereof or the District
of Columbia that (x) also becomes Counterparty under the Transaction or (y) agrees to be subject to Sections 8(d) and 8(e) of the
Confirmation governing the Transaction, in either case, following such Merger Event or Tender Offer”.
8
To be 75% of TSO as of Trade Date.
6
Merger
Events:
Applicable
Consequences
of Merger Events:
(a)   Share-for-Share:
Modified
Calculation Agent Adjustment
(b)   Share-for-Other:
Cancellation
and Payment (Calculation Agent Determination)
(c)   Share-for-Combined:
Cancellation
and Payment (Calculation Agent Determination);
provided
that the Calculation Agent may elect Component Adjustment for all
or part of the Transaction
Tender
Offer:
Applicable;
provided
that
the definition of “Tender Offer” in Section 12.1(d) of the Equity Definitions will be amended
by replacing the phrase “greater than 10% and less than 100% of the outstanding voting shares of the Issuer” in the third
and fourth line thereof with “greater than 25% and less than 100% of the outstanding Shares of Counterparty”. In addition,
Section 12.1(e) of the Equity Definitions shall be amended by replacing “voting shares” in the first line thereof with
“Shares”, and Section 12.1(l) of the Equity Definitions shall be amended by replacing “voting shares” in
the fifth line thereof with “Shares”.
Consequences
of Tender Offers:
(a)   Share-for-Share:
Modified
Calculation Agent Adjustment
(b)   Share-for-Other:
Modified
Calculation Agent Adjustment
(c)   Share-for-Combined:
Modified
Calculation Agent Adjustment
Consequences
of
Announcement Events:
Modified
Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions;
provided
that, in respect of an Announcement
Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references
to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event” in the definition
of Modified Calculation Agent Adjustment set forth in Section 12.3(d), (y) the phrase “exercise, settlement, payment or any other
terms of the Transaction (including, without limitation, the spread)” in the third and fourth lines of the definition of Modified
Calculation Agent Adjustment set forth in Section 12.3(d) shall be replaced with the phrase “Cap Price (
provided
that in
no event shall the Cap Price be less than the Strike Price)” and the words “whether within a commercially reasonable (as
determined by the Calculation Agent) period of time prior to or after the Announcement Event” shall be inserted prior to the word
“which” in the seventh line thereof, and (z) for the avoidance of doubt, the Calculation Agent shall, in good faith and a
commercially reasonable manner, determine whether the relevant Announcement Event has had a material economic effect on the Transaction
and, if so, shall adjust the Cap Price accordingly to take into account such economic effect on one or more occasions on or after the
date of the Announcement Event up to, and including, the related Expiration Date, any Early Termination Date and/or any other date of
cancellation, it being understood that (i) any adjustment in respect of an Announcement Event shall take into account any earlier adjustment
relating to the same Announcement Event and shall not be duplicative with any other adjustment or cancellation valuation made pursuant
to this Confirmation, the Equity Definitions or the Agreement and (ii) in making any adjustment the Calculation Agent shall solely take
into account changes in stock price, volatility, expected dividends, stock loan rate, and liquidity relevant to the Shares or to the
Transaction;
provided
that in no event shall the Cap Price be adjusted to be less than the Strike Price.  An Announcement
Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions
is applicable;
provided further
that if the Calculation Agent makes an adjustment, determined in a good faith and commercially
reasonable manner, to the Cap Price upon any Announcement Event, then the Calculation Agent shall make an adjustment to the Cap Price
upon any announcement regarding the same event that gave rise to the original Announcement Event regarding the abandonment of any such
event to the extent necessary to reflect the economic effect of such subsequent announcement on the Transaction (
provided
that
in no event shall the Cap Price be less than the Strike Price).
7
Announcement
Event:
(i)
The public announcement by Counterparty, any agent of Counterparty, any subsidiary of Counterparty or a Valid Third Party Entity
(each, a “
Relevant Party
”) of any transaction or event that, if completed, would constitute a Merger Event or
Tender Offer, or the announcement by Counterparty of any intention to enter into a Merger Event or Tender Offer, (ii) the public
announcement by Counterparty of an intention by Counterparty to solicit or enter into, or to explore strategic alternatives or other
similar undertaking that may include, a Merger Event or Tender Offer, (iii) the public announcement by a Relevant Party of any potential
acquisition or disposition by Counterparty and/or its subsidiaries where the consideration (excluding, for the avoidance of doubt,
any consideration in the form of earn-outs or bona fide other arrangements for consideration payable post-closing of such acquisition
or disposition contingent upon the satisfaction of specified facts or conditions) exceeds 35% of the market capitalization of Counterparty
as of the date of such announcement, or (iv) any subsequent public announcement of a change to a transaction or intention that is
the subject of an announcement of the type described in (x) clause (i) or (iii) of this sentence by a Relevant Party or (y) clause
(ii) of this sentence by Counterparty (in each case, including, without limitation, a new announcement relating to such a transaction
or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention).
For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude
the occurrence of a later Announcement Event with respect to such transaction or intention.  For purposes of this definition
of “Announcement Event,” “Merger Event” shall mean such term as defined under Section 12.1(b) of the Equity
Definitions (but, for the avoidance of doubt, the remainder of the definition of “Merger Event” in Section 12.1(b) of
the Equity Definitions following the definition of “Reverse Merger” therein shall be disregarded).
8
Valid
Third Party Entity:
In
respect of any transaction or event, any third party (or an agent or affiliate thereof) that the Calculation Agent reasonably determines
has a bona fide intent to enter into or consummate such transaction or event  (it being understood and agreed that in making
such a determination, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party
(or affiliate or agent of such a third party) on the Shares and/or options relating to the Shares).
Notice
of Merger Consideration and Consequences:
Upon
the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration
(determined based in part upon any form of stockholder election), Counterparty shall reasonably promptly (but in any event prior
to the relevant Merger Date) notify the Calculation Agent of (i) the type and amount of consideration that a holder of Shares would
have been entitled to in the case of reclassifications, consolidations, mergers, sales or transfers of assets or other transactions
that cause Shares to be converted into the right to receive more than a single type of consideration and (ii) the weighted average
of the types and amounts of consideration to be received by the holders of Shares that affirmatively make such an election.
Nationalization,
Insolvency or Delisting:
Cancellation
and Payment (Calculation Agent Determination);
provided
that in addition to the provisions of Section 12.6(a)(iii) of the
Equity Definitions, it will also constitute a Delisting if the Shares are not immediately re-listed, re-traded or re-quoted on any
of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors); if
the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation
system shall thereafter be deemed to be the Exchange.
Additional
Disruption Events
:
(a)
Change in Law:
Applicable;
provided
that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation”
in the third line thereof with the phrase “, or public announcement of, the formal or informal interpretation”, (ii)
adding the phrase “and/or the type of Hedge Position that would be entered into by a commercially reasonable dealer”
after the word “Shares” in clause (X) thereof, (iii) immediately following the word “Transaction” in clause
(X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date assuming the Hedging Party
maintains a commercially reasonable hedge position” and (iv) adding the words “
provided
that, in the case of clause
(Y) hereof and any law, regulation or interpretation, the consequence of such law, regulation or interpretation is applied consistently
by Dealer in good faith and in a commercially reasonable manner to all of its similarly situated counterparties and/or similar transactions”
after the semi-colon in the last line thereof; and
provided further
that Section 12.9(a)(ii) of the Equity Definitions is
hereby amended by (i) replacing the parenthetical beginning after the word “regulation” in the second line thereof with
the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of
new regulations authorized or mandated by existing statute)” and (ii) adding the words “, or holding, acquiring or disposing
of Shares or any Hedge Positions relating to,” after the words “obligations under” in clause (Y) thereof. Notwithstanding
anything to the contrary in the Equity Definitions, a Change in Law described in clause (Y) of Section 12.9(a)(ii) of the Equity
Definitions shall not constitute a Change in Law and instead shall constitute an Increased Cost of Hedging as described in Section
12.9(a)(vi) of the Equity Definitions.
9
(b)
Failure to Deliver:
Applicable
(c)
Insolvency Filing:
Applicable
(d)
Hedging Disruption:
Applicable;
provided
that “Hedging Disruption” shall be amended in its entirety to mean that the Hedging Party is unable,
after using commercially reasonable efforts to (A) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any
transaction(s) or asset(s) it deems necessary to hedge the equity price risk of entering into and performing its obligations with
respect to the Transaction, or (B) realize, recover or remit the proceeds of any such transaction(s) or asset(s),
provided
that any such inability that (1) is incurred solely due to the deterioration of the creditworthiness of the Hedging Party, or (2)
arises solely as a result of a failure of a system within the control of the Hedging Party, shall not be deemed a Hedging Disruption,
and, for the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to,
stock price and volatility risk;
provided further
that Section 12.9(b)(iii) of the Equity Definitions is hereby amended by
inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of
the Transaction affected by such Hedging Disruption”
.
(e)
Increased Cost of Hedging:
Applicable
solely with respect to a “Change in Law” described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions as
set forth in the last sentence opposite the caption “Change in Law” above.
Hedging
Party:
Dealer;
provided
that, when making any determination or calculation as “Hedging Party,” Dealer shall be bound by the same
obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation
as if Hedging Party were the Calculation Agent.
Determining
Party:
For all applicable Extraordinary Events, Dealer;
provided
that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations
relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as
if Determining Party were the Calculation Agent.
Following any determination or calculation by Determining Party
hereunder, upon a written request by Counterparty, Determining Party will promptly (but in any event within five Scheduled Trading
Days) provide to Counterparty in writing a report (in a commonly used file format for the storage and manipulation of financial data)
displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination
or calculation), it being understood that in no event will Determining Party be obligated to share with Counterparty any proprietary
or confidential data or information or any proprietary or confidential models used by it in making such determination or calculation
or any information that is subject to an obligation not to disclose such information.
10
Non-Reliance:
Applicable
Agreements
and Acknowledgments Regarding Hedging Activities:
Applicable
Additional
Acknowledgments:
Applicable
3.
Calculation Agent
:
Dealer;
provided
that, following the occurrence and during the continuance
of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party,
Counterparty shall have the right to designate a nationally recognized third party dealer in over-the-counter corporate equity derivatives
to replace Dealer as the Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required
by such replacement Calculation Agent.
Following any adjustment, determination or calculation by the Calculation Agent hereunder, upon a written
request by Counterparty, the Calculation Agent will promptly (but in any event within five Scheduled Trading Days) provide to Counterparty
in writing a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable
detail the basis for such adjustment, determination or calculation (including any assumptions used in making such adjustment, determination
or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary
or confidential data or information or any proprietary or confidential models used by it in making such adjustment, determination
or calculation or any information that is subject to an obligation not to disclose such information. Whenever the Calculation Agent
is required to act or to exercise judgment in any way, it will do so in good faith and in a commercially reasonable manner.
4.
Account Details
:
Dealer Payment Instructions:
[Bank:]
[_________]
[SWIFT:]
[_________]
[Bank Routing:]
[_________]
[Acct Name:]
[_________]
[Acct No.:]
[_________]
Counterparty Payment Instructions: To be
advised.
11
5.
Offices
:
The Office of Dealer for
the Transaction is: [____________]
The Office of Counterparty for the Transaction is:
Inapplicable, Counterparty is not a Multibranch Party.
6.
Notices
: For purposes of this Confirmation:
(a)
Address for notices or communications to Counterparty:
To:
SentinelOne, Inc.
444 Castro Street, Suite 400
Mountain View, California 94041
Attention: Chief Financial Officer and Chief Legal Officer
Email: sonalee.parekh@sentinelone.com; keenan.conder@sentinelone.com
(b)
Address for notices or communications to Dealer:
To:
[_________]
Attention:
[_________]
Telephone:
[_________]
Email:
[_________]
With a copy to:
To:
[_________]
Attention:
[_________]
Telephone:
[_________]
Email:
[_________]
For the avoidance of doubt, any notice or other communication
delivered by electronic messaging system, e-mail or facsimile transmission shall be deemed to be “in writing.”
7.
Representations, Warranties and Agreements
:
(a)
In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents
and warrants to and for the benefit of, and agrees with, Dealer as follows:
(i)
On the Trade Date (A) Counterparty is not aware of any material non-public information regarding Counterparty or the Shares and
(B) all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act when
considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier
such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading.
(ii) On the Trade Date (A) the Shares
or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted
period,” as such term is defined in Regulation M under the Exchange Act (“
Regulation M
”) and (B) Counterparty
is not engaged in any “distribution,” as such term is defined in Regulation M, other than a distribution meeting the requirements
of the exceptions set forth in Rules 101(b)(10) and 102(b)(7) or Rule 102(c)(1)(i) of Regulation M. Counterparty shall not, until the
third Exchange Business Day immediately following the Trade Date, engage in any such distribution.
12
(iii)
On the Trade Date, neither Counterparty nor any “affiliated purchaser” (as defined in Rule 10b-18 of the Exchange
Act (“
Rule 10b-18
”)) shall directly or indirectly (including, without limitation, by means of any cash-settled or
other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any
tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership
or a depository share) or any security convertible into or exchangeable or exercisable for Shares.
(iv)
Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that neither Dealer nor any
of its affiliates is making any representations or warranties or taking any position or expressing any view with respect to the treatment
of the Transaction under any accounting standards including ASC Topic 260,
Earnings Per Share
, ASC Topic 815,
Derivatives and
Hedging
, or
ASC Topic 480, Distinguishing Liabilities from Equity
and ASC
815-40, Derivatives and Hedging
–
Contracts
in Entity’s Own Equity
(or any successor issue statements).
(v)
Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4
under the Exchange Act.
(vi)
On or prior to the Trade Date, upon request by Dealer, Counterparty shall deliver to Dealer a resolution of Counterparty’s
board of directors authorizing the Transaction.
(vii)
Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security
convertible into or exchangeable for Shares) or to manipulate the price of the Shares (or any security convertible into or exchangeable
for Shares) or otherwise in violation of the Exchange Act.
(viii)
Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as, an
“investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(ix)
On and immediately after each of the Trade Date and the Premium Payment Date, Counterparty is not “insolvent” (as
such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “
Bankruptcy
Code
”)) and Counterparty would be able to purchase the aggregate Number of Shares for the Transaction in compliance with the
laws of the jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154
and 160 of the General Corporation Law of the State of Delaware).
(x)
To Counterparty’s knowledge, no U.S. state or local law, rule, regulation or regulatory order applicable to the Shares would
give rise to any reporting, consent, registration or other requirement (including, without limitation, a requirement to obtain prior
approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares;
provided
that no such representation shall be made by Counterparty with respect to any rules and regulations applicable to Dealer (including any
rules and regulations of the Financial Industry Regulatory Authority, Inc.) arising from Dealer’s status as a regulated entity
under applicable law.
(xi)
Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions
and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations
of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets
of at least USD 50 million as of the date hereof.
(b)
Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in
Section 1a(18) of the U.S. Commodity Exchange Act, as amended.
13
(c)
Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration
under the Securities Act, by virtue of Section 4(a)(2) thereof. Accordingly, Counterparty represents and warrants to Dealer that (i)
it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment
and its investments in and liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate
to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in
the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities
Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale thereof, (iv) the
assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is
restricted under this Confirmation, the Securities Act and state securities laws, and (v) its financial condition is such that it has
no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any
existing or contemplated undertaking or indebtedness and is capable of assessing the merits of and understanding (on its own behalf or
through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.
(d)
Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant”
and “financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of the Bankruptcy Code. The parties
hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in
Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination
value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy
Code and a “settlement payment” within the meaning of Section 546 of the Bankruptcy Code, and (ii) a “swap agreement,”
as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection
herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning
of Section 362 of the Bankruptcy Code and a “transfer” within the meaning of Section 546 of the Bankruptcy Code, and (B)
that Dealer is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e),
546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.
(e)
As a condition to the effectiveness of the Transaction, Counterparty shall deliver to Dealer an opinion of counsel, dated as of
the Effective Date and reasonably acceptable to Dealer in form and substance, with respect to the matters set forth in Section 3(a)(i),
(ii), (iii) and (iv) of the Agreement.
(f)
Counterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection
with the Transaction and any other over-the-counter derivative transactions between Counterparty and Dealer or its affiliates, Dealer
or its affiliates is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise,
amendment, unwind or termination thereof.
(g)
[Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. applicable
to transactions in options, and further agrees not to violate the position and exercise limits set forth therein.
(h)
Counterparty represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and
a copy of the most recent disclosure pamphlet prepared by The Options Clearing Corporation entitled “Characteristics and Risks
of Standardized Options”.]
9
8.
Other Provisions
:
(a)
Right to Extend
. Dealer may divide any Component into additional Components and designate the Expiration Date and
the Number of Options for each such Component if Dealer determines, in good faith and a commercially reasonable manner (and, in the case
of clause (y), based on the advice of counsel), that such further division is necessary or advisable (x) to preserve a commercially reasonable
dealer’s hedging or hedge unwind activity with respect to the Transaction in light of existing liquidity conditions or (y) to enable
such a dealer to purchase or sell Shares or enter into swap or other derivatives transactions with respect to Shares in connection with
its commercially reasonable hedging, hedge unwind or settlement activity with respect to the Transaction in a manner that would, if such
dealer were Counterparty or an affiliated purchaser of Counterparty, be compliant and consistent with applicable legal, regulatory or
self-regulatory requirements generally applicable to transactions of the type of the Transaction, or with related policies and procedures
adopted by Dealer in a good faith and commercially reasonable manner so long as such policies and procedures are generally applicable
in similar situations and applied in a non-discriminatory manner;
provided
that in no event shall any Expiration Date for any
Component be postponed to a date later than the Final Termination Date.
9
Include only
for FINRA regulated dealers.
14
(b)
Additional Termination Events
. Promptly (but in any event within ten (10) Scheduled Trading Days) following any
repurchase, redemption, exchange or conversion of any of Counterparty’s 0.00% Convertible Senior Notes due 2031 (the “
Convertible
Notes
”) issued pursuant to Counterparty’s indenture (the “
Indenture
”) [to be]
10
dated October [__], 2026 between Counterparty and U.S. Bank Trust Company, National Association, as trustee, Counterparty may (but is
not required to) notify Dealer in writing of (i) such repurchase, redemption, exchange or conversion, (ii) the number of Convertible
Notes so repurchased, redeemed, exchanged or converted, (iii) the number of Shares underlying each USD 1,000 principal amount of Convertible
Notes (excluding any Shares by which the “conversion rate” for such Convertible Notes may be increased as a result of a “make-whole
fundamental change” or a notice of redemption) and (iv) the number of Options as to which Counterparty elects to exercise its termination
rights under this Section 8(b) (any such notice, a “
Repurchase Notification
” and any such event, a “
Repurchase
Event
”)[;
provided
that any “Repurchase Notification” delivered to Dealer pursuant to the Base Capped Call
Transaction Confirmation letter agreement dated October [__], 2026 between Dealer and Counterparty (the “
Base Call Option Confirmation
”)
shall be deemed to be a Repurchase Notification pursuant to this Confirmation and the terms of such Repurchase Notification shall apply,
mutatis mutandis
, to this Confirmation]
11
.
Notwithstanding anything to the contrary in this Confirmation, the receipt by Dealer from Counterparty of (x) any Repurchase Notification,
within the applicable time period set forth in the preceding sentence, (y) a written representation and warranty by Counterparty that,
as of the date of such Repurchase Notification, Counterparty is not in possession of any material non-public information regarding Counterparty
or the Shares, and (z) a written representation and warranty by Counterparty that the aggregate Repurchase Options, together with any
options being terminated concurrently under other capped call transactions entered into in connection with the issuance of the Convertible
Notes, will not exceed the number of Shares underlying the Convertible Notes specified in such Repurchase Notification
divided by
the Option Entitlement, shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt of any such Repurchase
Notification and the related written representations and warranties, Dealer shall promptly designate an Exchange Business Day following
receipt of such Repurchase Notification as an Early Termination Date with respect to the portion of the Transaction corresponding to
a number of Options (the “
Repurchase Options
”) equal to the lesser of (A) [(x)] the number of Options specified in
such Repurchase Notification[,
minus
(y) the number of “Repurchase Options” (as defined in the Base Call Option Confirmation),
if any, that relate to such Convertible Notes (and for the purposes of determining whether any Options under this Confirmation or under,
and as defined in, the Base Call Option Confirmation will be among the Repurchase Options hereunder or under, and as defined in, the
Base Call Option Confirmation, the number of Convertible Notes specified in such Repurchase Notification shall be allocated first to
the Base Call Option Confirmation until all Options thereunder are exercised or terminated)]
12
and (B) the aggregate Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the aggregate
Number of Options shall be reduced by the number of Repurchase Options on a pro rata basis across all Components, as determined by the
Calculation Agent. Any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the Agreement
as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Transaction and an
aggregate Number of Options equal to the number of Repurchase Options, (2) Counterparty were the sole Affected Party with respect to
such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction.
10
Include
if the Indenture is not completed at the time of the Confirmation.
11
Include in Additional Call Option Confirmation only.
12
Include in Additional Call Option Confirmation only.
15
(c)
Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events
. If (a) an Early Termination
Date (whether as a result of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b)
the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization,
Insolvency or Merger Event in which the consideration to be paid to all holders of Shares consists solely of cash, (ii) a Merger Event
or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the Defaulting Party
or a Termination Event in which Counterparty is the Affected Party, which Event of Default or Termination Event resulted from an event
or events within Counterparty’s control), and if Dealer would owe any amount to Counterparty pursuant to Section 6(d)(ii) and 6(e)
of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “
Payment Obligation
”),
then Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below) unless (a) Counterparty gives
irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m. (New York City
time) on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination
Date or date of cancellation, as applicable, of its election that the Share Termination Alternative shall not apply, (b) as of the date
of such election, Counterparty represents that it is not in possession of any material non-public information regarding Counterparty
or the Shares, and that such election is being made in good faith and not as part of a plan or scheme to evade compliance with the federal
securities laws, and (c) Dealer agrees, in its commercially reasonable discretion, to such election, in which case the provisions of
Section 12.7 or Section 12.9 of the Equity Definitions, or the provisions of Section 6(d)(ii) and 6(e) of the Agreement, as the case
may be, shall apply.
Share
Termination Alternative:
If
applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable
period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to Section 12.7 or 12.9 of the
Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the
manner reasonably requested by Counterparty free of payment.
Share
Termination Delivery Property:
A number
of Share Termination Delivery Units, as calculated by the Calculation Agent in a commercially reasonable manner, equal to the Payment
Obligation
divided by
the Share Termination Unit Price. The Calculation Agent shall, in a commercially reasonable manner,
adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal
to the value of such fractional security based on the values used to calculate the Share Termination Unit Price.
Share
Termination Unit Price:
The value
of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially
reasonable means and notified by the Calculation Agent to Dealer at the time of notification of the Payment Obligation. For the avoidance
of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider a variety
of factors, including the market price of the Share Termination Delivery Units and/or the purchase price paid in connection with
the commercially reasonable purchase of Share Termination Delivery Property.
Share
Termination Delivery Unit:
One Share
or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of
a Nationalization, Insolvency or Merger Event (any such cash or other property, the “
Exchange Property
”), a unit
consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement
to pay cash or other consideration in lieu of fractional amounts of any securities) in such Nationalization, Insolvency or Merger
Event, as determined by the Calculation Agent.
Failure
to Deliver:
Applicable
Other
Applicable Provisions:
If Share
Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions
and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will be applicable, except
that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination
Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”.  “Share
Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.
16
(d)
Disposition of Hedge Shares
. Counterparty hereby agrees that if, in the good faith reasonable judgment of Dealer,
based on the advice of legal counsel, the Shares acquired by Dealer for the purpose of effecting a commercially reasonable hedge of its
obligations pursuant to the Transaction (the “
Hedge Shares
”) cannot be sold in the U.S. public market by Dealer without
registration under the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in
a registered offering, make available to Dealer an effective registration statement under the Securities Act to cover the resale of such
Hedge Shares and (A) enter into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an
underwriting agreement for a registered offering for companies of a similar size in a similar industry, (B) provide accountant’s
“comfort” letters in customary form for registered offerings of equity securities for companies of a similar size in a similar
industry, (C) provide disclosure opinions of nationally recognized outside counsel to Counterparty in customary form for registered offerings
of equity securities for companies of a similar size in a similar industry, (D) provide other customary opinions, certificates and closing
documents customary in form for registered offerings of equity securities for companies of a similar size in a similar industry and (E)
afford Dealer a reasonable opportunity to conduct a “due diligence” investigation with respect to Counterparty customary
in scope for underwritten offerings of equity securities for companies of a similar size in a similar industry (
provided, however
,
that, if Counterparty elects clause (i) above but Dealer, in its good faith and sole reasonable discretion, is not satisfied with access
to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the registered offering
referred to above, then clause (ii) or clause (iii) of this Section 8(d) shall apply at the election of Counterparty, so long as Dealer
has given Counterparty reasonable notice of its determination and provided Counterparty with reasonable opportunity to satisfy Dealer’s
concerns); (ii) in order to allow Dealer to sell the Hedge Shares in a private placement, enter into a private placement agreement substantially
similar to private placement purchase agreements customary for private placements of equity securities of companies of a similar size
in a similar industry, in form and substance commercially reasonably satisfactory to Dealer using reasonable best efforts to include
customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due diligence
rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such other documentation as
is customary for private placements agreements of equity securities of companies of a similar size in a similar industry, as is reasonably
acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary,
in its good faith and commercially reasonable judgment, to compensate Dealer for any customary liquidity discount from the public market
price of the Shares incurred on the sale of Hedge Shares in a private placement) (
provided
that no “comfort letter”
or accountants’ consent shall be required to be delivered in connection with any private placements); or (iii) purchase the Hedge
Shares from Dealer at the then-prevailing market price at one or more times on such Exchange Business Days, and in the amounts, reasonably
requested by Dealer.
(e)
Repurchase Notices
. Counterparty shall, at least one Scheduled Valid Day prior to any day on which Counterparty
intends to effect any repurchase of Shares, give Dealer written notice of such repurchase (a “
Repurchase Notice
”)
on such day if, following such repurchase, the Notice Percentage would reasonably be expected to be (i) greater than [__]
13
%
and (ii) greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first
such Repurchase Notice, greater than the Notice Percentage as of the date hereof);
provided
that, in the case of any repurchases
of Shares pursuant to a plan under Rule 10b5-1 under the Exchange Act, Counterparty may elect to satisfy such requirement by promptly
providing Dealer with advance written notice on or prior to any such day of entry into such plan, the maximum number of Shares that may
be purchased thereunder and the approximate dates or periods during which such purchases may occur (with such maximum number of Shares
deemed repurchased on the date of such notice for purposes of this Section 8(e)), in each case so long as such advance written notice
shall not contain any material non-public information with respect to the Issuer or the Shares. The “
Notice Percentage
”
as of any day is the fraction, expressed as a percentage, the numerator of which is the aggregate Number of Shares,
plus
the aggregate
number of Shares underlying any other call options sold by Dealer to Counterparty and the denominator of which is the number of Shares
outstanding on such day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner
specified in this Section 8(e) then Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors,
officers, employees, agents and controlling persons (Dealer and each such person being an “
Indemnified Party
”) from
and against any and all commercially reasonable losses (including direct losses relating to Dealer’s commercially reasonable hedging
activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider,” including without limitation,
any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the
Transaction), claims, damages and liabilities (or actions in respect thereof), joint or several, to which such Indemnified Party may
become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act or under any U.S. state
or federal law, regulation or regulatory order, in each case relating to or arising out of such failure. If any Indemnified Party fails
to promptly notify Counterparty of any action commenced against it in respect of which indemnity may be sought hereunder, Counterparty
shall be relieved from liability to the extent Counterparty is materially prejudiced as a result of such failure. If for any reason the
foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty
shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such
loss, claim, damage or liability. In addition, Counterparty will reimburse any Indemnified Party for out-of-pocket commercially reasonable
expenses (including commercially reasonable documented outside out-of-pocket counsel fees and expenses) as they are incurred (after notice
to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim
or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such
claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty, in each case relating to or arising out of
such failure. Counterparty shall not have liability for any settlement of any proceeding contemplated by this paragraph that is effected
without its written consent, such consent not to be unreasonably withheld, but if settled with such consent or if there be a final judgment
for the plaintiff, Counterparty agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement
or judgment. This indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and
delegation of the Transaction made pursuant to this Confirmation or the Agreement and shall inure to the benefit of any permitted assignee
of Dealer. Counterparty will not be liable under this indemnity provision to the extent any loss, claim, damage, liability or expense
is conclusively found in a final and non-appealable judgment by a court of competent jurisdiction to have resulted from Dealer’s
gross negligence or willful misconduct.
13
To be 0.5% higher
than the number of Shares underlying the capped call (including any additional capped call) transactions with the Issuer of the Dealer
with the highest percentage allocation of the capped call.
17
(f)
Transfer and Assignment
. Either party may transfer or assign any of its rights or obligations under the Transaction
with the prior written consent of the non-transferring party, such consent not to be unreasonably withheld or delayed;
provided
that Dealer may transfer or assign its rights and obligations hereunder, in whole or in part, without Counterparty’s consent, to
any affiliate of Dealer (a “
Designated Transferee
”) (A) whose obligations would be guaranteed by Dealer or Dealer’s
ultimate parent or (B) that has, or whose obligations would be guaranteed by a person with, in either case under this clause (B), a rating
for its long-term, unsecured and unsubordinated indebtedness at least equivalent to Dealer’s (or its guarantor’s) at the
time of such transfer or assignment,
provided
,
however
, that, in the case of this clause (B), in no event shall the credit
rating of the Designated Transferee or of its guarantor (whichever is higher) be lower than A3 from Moody’s Investors Service,
Inc. or its successor or A- from S&P Global Ratings, a division of S&P Global Inc., or its successor at the time of such transfer
or assignment;
provided further
that (i) Dealer will notify Counterparty in writing prior to any proposed transfer or assignment
to a Designated Transferee, (ii) each of Dealer and the Designated Transferee in any transfer or assignment under this Section 8(f) is
a “dealer in securities” within the meaning of Section 475(c)(1) of the U.S. Internal Revenue Code of 1986, as amended (the
“
Code
”), or the transfer or assignment does not otherwise result in a deemed exchange for Counterparty within the
meaning of Section 1001 of the Code, (iii) after any such transfer or assignment, Counterparty will not, as a result of any withholding
or deduction made by the Designated Transferee as a result of any tax, receive from the Designated Transferee on any payment date or
delivery date (after accounting for amounts paid under Section 2(d)(i)(4) of the Agreement as well as such withholding or deduction from
the payment or delivery) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable,
that Counterparty would have received in the absence of such transfer or assignment, and (iv) Dealer shall cause the Designated Transferee
to make the Payee Tax Representations and provide Counterparty with a complete and accurate U.S. Internal Revenue Service Form W-9 or
W-8 (as applicable), and any other tax documentation as may be reasonably requested by Counterparty, prior to becoming a party to the
Transaction to permit Counterparty to determine that results described in clause (ii) will not occur upon or after such transfer or assignment.
At any time at which (1) the Equity Percentage exceeds 9.0% or (2) Dealer, Dealer Group (as defined below) or any person whose ownership
position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “
Dealer Person
”)
under any applicable “business combinations statute” or other federal, state or local law, rule, regulation or regulatory
order or organizational documents or contracts of Counterparty applicable to ownership of Shares (“
Applicable Restrictions
”),
owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership
in excess of a number of Shares equal to (x) the number of Shares that would give rise to reporting, registration, filing or notification
obligations or other requirements or adverse consequences (including obtaining prior approval by a state or federal regulator) of a Dealer
Person under Applicable Restrictions and with respect to which such requirements have not been met or the relevant approval has not been
received, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable
discretion
minus
(y) 1% of the number of Shares outstanding on the date of determination (either such condition described in clause
(1) or (2), an “
Excess Ownership Position
”), if Dealer, in its commercially reasonable discretion, is unable to effect
a transfer or assignment to a third party in accordance with the requirements set forth above after its commercially reasonable efforts
on pricing and terms and within a time period reasonably acceptable to Dealer such that an Excess Ownership Position no longer exists,
Dealer may designate any Scheduled Valid Day as an Early Termination Date with respect to a portion (the “
Terminated Portion
”)
of the Transaction, such that an Excess Ownership Position no longer exists following such partial termination. In the event that Dealer
so designates an Early Termination Date with respect to a portion of the Transaction, a payment or delivery shall be made pursuant to
Section 6 of the Agreement and Section 8(c) of this Confirmation as if (i) an Early Termination Date had been designated in respect of
a Transaction having terms identical to the Terminated Portion of the Transaction, (ii) Counterparty were the sole Affected Party with
respect to such partial termination, (iii) such portion of the Transaction were the only Terminated Transaction and (iv) Dealer were
the party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement and to determine the amount payable
pursuant to Section 6(e) of the Agreement. The “
Equity Percentage
” as of any day is the fraction, expressed as a percentage,
(A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with
Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within
the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which Dealer is or may be deemed to be a part (collectively, “
Dealer
Group
”) “beneficially owns” (within the meaning of Section 13 of the Exchange Act), without duplication, on such
day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations
thereunder results in a higher number, such higher number) and (B) the denominator of which is the number of Shares outstanding on such
day.
18
In the case of a transfer or assignment by Counterparty
of its rights and obligations hereunder and under the Agreement, in whole or in part (any such Options so transferred or assigned, the
“
Transfer Options
”), to any party, withholding of such consent by Dealer shall not be considered unreasonable if such
transfer or assignment does not meet the reasonable conditions that Dealer may impose including, but not limited, to the following conditions:
(A)
with respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant
to Section 8(e) or any obligations under Section 2 (regarding Extraordinary Events) or Section 8(d) of this Confirmation;
(B)
any Transfer Options shall only be transferred or assigned to a third party that is a U.S. person (as defined in Section 7701(a)(30)
of the Code);
(C)
such transfer or assignment shall be effected on terms, including any commercially reasonable undertakings by such third party
(including, but not limited to, undertakings with respect to compliance with applicable securities laws in a manner that, in the reasonable
judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and
delivery of customary legal opinions with respect to securities laws and other matters by such third party and Counterparty as are reasonably
requested and reasonably satisfactory to Dealer;
(D)
Dealer will not, as a result of such transfer or assignment, be required to pay the transferee or assignee on any payment date
an amount or number of Shares, as applicable, under Section 2(d)(i)(4) of the Agreement greater than an amount or number of Shares, as
applicable, that Dealer would have been required to pay to Counterparty in the absence of such transfer or assignment or receive from
the transferee or assignee on any payment date (after accounting for amounts paid under Section 2(d)(i)(4) of the Agreement as well as
such withholding or deduction from the payment) an amount lower than the amount that Dealer would have received from Counterparty in
the absence of such transfer or assignment;
19
(E)
an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F)
without limiting the generality of clause (B), Counterparty shall have caused the transferee or assignee to make such Payee Tax
Representations and to provide a properly executed IRS Form W-9 or W-8 (as applicable) and any such tax documentation as may be reasonably
requested by Dealer to permit Dealer to determine that results described in clause (D) will not occur upon or after such transfer or
assignment; and
(G)
Counterparty shall be responsible for commercially reasonable out-of-pocket costs and expenses, including reasonable documented
out-of-pocket counsel fees, incurred by Dealer in connection with such transfer or assignment.
Notwithstanding any other provision in this Confirmation
to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive
any payment in cash, to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares
or other securities, or to make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect of the
Transaction and any such designee may assume such obligations. For the avoidance of doubt, the representations and covenants with respect
to Sections 8(v) and 8(w)(ii) shall remain unaffected by such designation. Dealer shall be discharged of its obligations to Counterparty
to the extent of any such performance.
(g)
Staggered Settlement
. If Dealer determines reasonably and in good faith based on the reasonable advice of counsel
(a) with respect to applicable legal and regulatory requirements, including any requirements relating to Dealer’s commercially
reasonable hedging activities hereunder, that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any
or all of the Shares to be delivered by Dealer on the Settlement Date or (b) that the number of Shares required to be delivered to Counterparty
hereunder on the Settlement Date would result in an Excess Ownership Position, then, in either case, Dealer may, by notice to Counterparty
prior to the Settlement Date (a “
Nominal Settlement Date
”), elect to deliver any Shares due to be delivered on two
or more dates (each, a “
Staggered Settlement Date
”) or at two or more times on the Nominal Settlement Date as follows:
(i)
in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior
to the tenth Scheduled Trading Day after such Nominal Settlement Date) or delivery times and how it will allocate the Shares it is required
to deliver hereunder on the Settlement Date among the Staggered Settlement Dates or delivery times; and
(ii)
the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery
times will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date;
provided
that in no event shall any Staggered Settlement Date be a date later than the Final Termination Date.
(h)
Tax Disclosure
. Effective from the date of commencement of discussions concerning the Transaction, Counterparty
and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are
provided to Counterparty relating to such tax treatment and tax structure.
(i)
No Netting and Set-off
.
The provisions of Section 2(c) and Section 6(f) of the Agreement shall not apply to the
Transaction. Each party waives any and all rights it may have to set-off delivery or payment obligations it owes to the other party under
the Transaction against any delivery or payment obligations owed to it by the other party, whether arising under the Agreement, under
any other agreement between parties hereto, by operation of law or otherwise.
20
(j)
Equity Rights
. Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with
respect to the Transaction that are senior to the claims of common stockholders in the event of Counterparty’s bankruptcy. For
the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s
bankruptcy to any claim arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement.
For the avoidance of doubt, the parties acknowledge that the obligations of Counterparty under this Confirmation are not secured by any
collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.
(k)
Early Unwind
. In the event the sale of the [“Initial Securities”]
14
[“Option Securities”]
15
(as defined in the Purchase Agreement dated as of October [__], 2026, among Counterparty and J.P. Morgan Securities LLC, BofA Securities,
Inc., Morgan Stanley & Co. LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC as representatives of the Initial Purchasers
party thereto (the “
Initial Purchasers
”)) is not consummated with the Initial Purchasers for any reason by 5:00 p.m.
(New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such
later date, the “
Early Unwind Date
”), the Transaction shall automatically terminate (the “
Early Unwind
”)
on the Early Unwind Date and (i) the Transaction and all of the respective rights and obligations of Dealer and Counterparty under the
Transaction shall be cancelled and terminated and (ii) each party shall be released and discharged by the other party from and agrees
not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to
be performed in connection with the Transaction either prior to or after the Early Unwind Date. Each of Dealer and Counterparty represents
and acknowledges to the other that, upon an Early Unwind, all obligations with respect to the Transaction shall be deemed fully and finally
discharged.
(l)
[
Reserved
].
(m)
Wall Street Transparency and Accountability Act
.
In connection with Section 739 of the Wall Street Transparency
and Accountability Act of 2010 (“
WSTAA
”), the parties hereby agree that neither the enactment of WSTAA or any regulation
under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s
otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable,
arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation,
the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Increased
Cost of Hedging, Hedging Disruption, an Excess Ownership Position, or Illegality (as defined in the Agreement)).
(n)
Amendments to Equity Definitions
. The following amendments shall be made to the Equity Definitions:
(i)
solely for purposes of applying the Equity Definitions and for purposes of this Confirmation, any reference in the Equity Definitions
to a Strike Price shall be deemed to be a reference to either of the Strike Price or the Cap Price, or both, as appropriate;
(ii)
for the purpose of any adjustment under Section 11.2(c) of the Equity Definitions, the first sentence of Section 11.2(c) of the
Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: “If “Calculation Agent Adjustment”
is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or
occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has, in the
commercially reasonable judgment of the Calculation Agent, a material economic effect on the theoretical value of the relevant Shares
or options on the Shares (
provided
that such event is not based on (x) an observable market, other than the market for Counterparty’s
own stock or (y) an observable index, other than an index calculated and measured solely by reference to Counterparty’s own operations)
and, if so, will (i) make appropriate adjustment(s), if any, determined in a commercially reasonable manner, to any one or more of:”,
and the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or
concentrative” and the words “(
provided
that no adjustments will be made to account solely for changes in volatility,
expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words
“(
provided
that solely in the case of Sections 11.2(e)(i), (ii)(A) and (iv), no adjustments will be made to account solely
for changes in volatility, expected dividends, stock loan rate, or liquidity relative to the relevant Shares as determined by the Calculation
Agent in a commercially reasonable manner, but, for the avoidance of doubt, solely in the case of Sections 11.2(e)(ii)(B) through (D),
(iii), (v), (vi) and (vii), adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate
or liquidity relative to the relevant Shares)”;
14
Insert for Base
Call Option Confirmation.
15
Insert for Additional
Call Option Confirmation.
21
(iii)
Section 11.2(a) of the Equity Definitions is hereby amended by (1) deleting the words “in the determination of the Calculation
Agent, a diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing these words with “in
the commercially reasonable judgment of the Calculation Agent, a material economic effect on the theoretical value of the Shares or options
on such Shares”; and (2) adding at the end thereof “;
provided
that such event is not based on (i) an observable
market, other than the market for Counterparty’s own stock or (ii) an observable index, other than an index calculated and measured
solely by reference to Counterparty’s own operations”;
(iv)
Section 11.2(e)(vii) of the Equity Definitions is hereby amended and restated as follows: “any other corporate event involving
the Issuer that in the commercially reasonable judgment of the Calculation Agent has a material economic effect on the theoretical value
of the Shares or options on the Shares;
provided
that such corporate event involving the Issuer is not based on (a) an observable
market, other than the market for Counterparty’s own stock or (b) an observable index, other than an index calculated and measured
solely by reference to Counterparty’s own operations.”;
(v)
Section 12.7(b) of the Equity Definitions is hereby amended by deleting the words “(and in any event within five Exchange
Business Days) by the parties after” appearing after the words “agreed promptly” and replacing with the words “by
the parties on or prior to”;
(vi)
“Extraordinary Dividend” (as such term is used in the Equity Definitions) means any cash dividend on the Shares; and
(vii)
Section 12.9(b)(vi) of the Equity Definitions is hereby amended by adding the phrase “,
provided
that the Non-Hedging
Party may not elect to terminate the Transaction unless concurrently with electing to terminate the Transaction, it represents and warrants
to the Hedging Party that (X) it is not in possession of any material non-public information with respect to the Non-Hedging Party or
the Shares and (Y) such election is being made in good faith and not as part of a plan or scheme to evade compliance with the federal
securities laws” at the end of subsection (C).
(o)
Governing Law
.
THE AGREEMENT, THIS CONFIRMATION AND ALL MATTERS ARISING IN CONNECTION WITH THE AGREEMENT AND
THIS CONFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE
TO ITS CHOICE OF LAW DOCTRINE, OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HERETO IRREVOCABLY
SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN
ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS CONFIRMATION OR THE TRANSACTION CONTEMPLATED HEREBY.
(p)
Amendment to the Agreement
. Section 12(a) of the Agreement is hereby amended by (i) deleting the phrase “or
e-mail” in the third line thereof and (ii) deleting the phrase “or that communication is delivered (or attempted) or received,
as applicable, after the close of business on a Local Business Day” in the final clause thereof.
(q)
Adjustments
. For the avoidance of doubt, whenever the Calculation Agent, Hedging Party or Determining Party is called
upon to make any calculation, determination or adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take
into account the effect of an event, the Calculation Agent, Hedging Party or Determining Party shall make such calculation, determination
or adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially
reasonable hedge position.
22
(r)
Delivery or Receipt of Cash
. For the avoidance of doubt, other than payment of the Premium by Counterparty, nothing
in this Confirmation shall be interpreted as requiring Counterparty to cash settle the Transaction, except in circumstances where cash
settlement is within Counterparty’s control (including, without limitation, where Counterparty elects to deliver or receive cash)
or in those circumstances in which holders of Shares would also receive cash.
(s)
Waiver of Jury Trial
.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS CONFIRMATION OR THE TRANSACTION CONTEMPLATED HEREBY.
(t)
Amendment
.
This Confirmation and the Agreement may not be modified, amended or supplemented, except in a written
instrument signed by Counterparty and Dealer.
(u)
Counterparts
. This Confirmation may be executed in several counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. Delivery of an executed signature page by electronic transmission
(e.g. “pdf” or “tif”), or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act or other applicable law, e.g., www.docusign.com, shall be effective as delivery of a manually executed counterpart
hereof.
(v)
Tax Forms
. For the purpose of Sections 4(a)(i) and (ii) of the Agreement, Counterparty agrees to deliver to Dealer
one duly executed and completed U.S. Internal Revenue Service Form W-9 (or successor thereto) and Dealer agrees to deliver to Counterparty,
as applicable, a U.S. Internal Revenue Service Form W-8 or Form W-9 (or successor thereto). Such forms or documents shall be delivered
upon (i) execution of this Confirmation, (ii) Counterparty or Dealer, as applicable, learning that any such tax form previously provided
by it has become obsolete or incorrect, and (iii) reasonable request of the other party.
(w)
Payee Tax Representations
.
(i)
For the purpose of Section 3(f) of the Agreement, Counterparty makes the representations below:
Counterparty is a corporation created
or organized under the laws of Delaware and its U.S. taxpayer identification number is 99-0385461. It is “exempt” within
the meaning of Treasury Regulation sections 1.6041-3(p) and 1.6049-4(c) from information reporting on IRS Form 1099 and backup withholding.
(ii)
For the purpose of Section 3(f) of the Agreement, Dealer makes the representations below:
Dealer is a [_______________________________________________________________________].
16
(x)
Withholding Tax Imposed on Payments to Non-U.S. Counterparties under the United States Foreign Account Tax Compliance Provisions
of the HIRE Act
. “Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall not include any withholding
tax imposed or collected pursuant to FATCA (a “
FATCA Withholding Tax
”). “FATCA” is defined as Sections
1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant
to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental
agreement entered into in connection with the implementation of such Sections of the Code. For the avoidance of doubt, a FATCA Withholding
Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
(y)
Section 871(m)
.
“Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall not include any
tax imposed on payments treated as dividends from sources within the United States under Section 871(m) of the Code or any regulations
issued thereunder. For the avoidance of doubt, any such tax imposed under Section 871(m) of the Code is a Tax the deduction or withholding
of which is required by applicable law for the purposes of Section 2(d) of the Agreement
.
16
Insert applicable
Dealer tax representation.
23
(z)
Agreements and Acknowledgements Regarding Hedging
.
Counterparty understands, acknowledges and agrees that: (A) at
any time on or prior to the final Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell
options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to
the Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities
in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market
activities in securities of the Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and
market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and its affiliates with respect to Shares may
affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.
(aa)
[
U.S. Resolution Stay Protocol
.
To the extent that the QFC Stay Rules are applicable hereto, then the parties agree that (i) to the extent that prior to the date hereof
both parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “
Protocol
”), the terms of the Protocol
are incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a Protocol Covered
Agreement and each party shall be deemed to have the same status as “Regulated Entity” and/or “Adhering Party”
as applicable to it under the Protocol; (ii) to the extent that prior to the date hereof the parties have executed a separate agreement
the effect of which is to amend the qualified financial contracts between them to conform with the requirements of the QFC Stay Rules
(the “
Bilateral Agreement
”), the terms of the Bilateral Agreement are incorporated into and form a part of this Confirmation
and each party shall be deemed to have the status of “Covered Entity” or “Counterparty Entity” (or other similar
term) as applicable to it under the Bilateral Agreement; or (iii) if clause (i) and clause (ii) do not apply, the terms of Section 1
and Section 2 and the related defined terms (together, the “
Bilateral Terms
”) of the form of bilateral template entitled
“Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)” published by ISDA on November 2, 2018 (currently
available on the 2018 ISDA U.S. Resolution Stay Protocol page at www.isda.org and, a copy of which is available upon request), the effect
of which is to amend the qualified financial contracts between the parties thereto to conform with the requirements of the QFC Stay Rules,
are hereby incorporated into and form a part of this Confirmation, and for such purposes this Confirmation shall be deemed a “Covered
Agreement,” Dealer shall be deemed a “Covered Entity” and Counterparty shall be deemed a “Counterparty Entity.”
In the event that, after the date of this Confirmation, both parties hereto become adhering parties to the Protocol, the terms of the
Protocol will replace the terms of this paragraph. In the event of any inconsistencies between this Confirmation and the terms of the
Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “
QFC Stay Terms
”), as applicable, the QFC Stay
Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules.
For purposes of this paragraph, references to “this Confirmation” include any related credit enhancements entered into between
the parties or provided by one to the other. In addition, the parties agree that the terms of this paragraph shall be incorporated into
any such related covered affiliate credit enhancements, with all references to Dealer replaced by references to the covered affiliate
support provider.
“
QFC Stay Rules
” means the
regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions,
require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation
Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights related
directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered
affiliate credit enhancements.]
17
[(
bb
)
Dealer Boilerplate
. Insert additional Dealer boilerplate, if applicable]
[
Signature Pages Follow
]
17
Insert preferred form of US QFC Stay Rule language for each Dealer.
24
Please confirm that the foregoing correctly sets
forth the terms of our agreement by executing this Confirmation and returning it to Dealer.
Yours faithfully,
[
DEALER
]
By:
Name:
Title:
[
Signature Page to [Base][Additional]Capped
Call Confirmation
]
Agreed and Accepted By:
SENTINELONE, INC.
By
Name:
Title:
[
Signature Page to [Base][Additional]Capped
Call Confirmation
]
Schedule 1
18
[Form of Guarantee]
18
NTD: Include
if applicable.
Schedule 1
Annex A
For each Component of the Transaction, the Number of Options and Expiration
Date is set forth below.
Component
Number
Number
of Options
Expiration
Date
1
August
18, 2031
2
August
19, 2031
3
August
20, 2031
4
August
21, 2031
5
August
22, 2031
6
August
25, 2031
7
August
26, 2031
8
August
27, 2031
9
August
28, 2031
10
August
29, 2031
11
September
2, 2031
12
September
3, 2031
13
September
4, 2031
14
September
5, 2031
15
September
8, 2031
16
September
9, 2031
17
September
10, 2031
18
September
11, 2031
19
September
12, 2031
20
September
15, 2031
21
September
16, 2031
22
September
17, 2031
23
September
18, 2031
24
September
19, 2031
25
September
22, 2031
26
September
23, 2031
27
September
24, 2031
28
September
25, 2031
29
September
26, 2031
30
September
29, 2031
Annex A

----- tm2627397d1_ex4-1.htm -----
EX-4.1
2
tm2627397d1_ex4-1.htm
EXHIBIT 4.1
Exhibit 4.1
SENTINELONE, INC.
AND
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of October 16, 2026
0.00% Convertible Senior Notes due 2031
TABLE OF CONTENTS
Page
Article 1
Definitions
Section 1.01.
Definitions
1
Section 1.02.
References to Interest
16
Article 2
Issue,
Description, Execution, Registration and Exchange of Notes
Section 2.01.
Designation and Amount
16
Section 2.02.
Form of Notes
16
Section 2.03.
Date and Denomination of Notes; No Regular Interest;
Payments of Special Interest and Defaulted Amounts
17
Section 2.04.
Execution, Authentication and Delivery of Notes
19
Section 2.05.
Exchange and Registration of Transfer of Notes;
Restrictions on Transfer; Depositary
20
Section 2.06.
Mutilated, Destroyed, Lost or Stolen Notes
27
Section 2.07.
Temporary Notes
28
Section 2.08.
Cancellation of Notes Paid, Converted, Etc.
29
Section 2.09.
CUSIP Numbers
29
Section 2.10.
Additional Notes; Repurchases
29
Article 3
Satisfaction
and Discharge
Section 3.01.
Satisfaction and Discharge
30
Article 4
Particular
Covenants of the Company
Section 4.01.
Payment of Principal and Special Interest
31
Section 4.02.
Maintenance of Office or Agency
31
Section 4.03.
Appointments to Fill Vacancies in Trustee’s
Office
32
Section 4.04.
Provisions as to Paying Agent
32
Section 4.05.
Existence
33
Section 4.06.
Rule 144A Information Requirement and Annual
Reports
33
Section 4.07.
Stay, Extension and Usury Laws
36
Section 4.08.
Compliance Certificate; Statements as to Defaults
36
Section 4.09.
Further Instruments and Acts
37
Article 5
Lists
of Holders and Reports by the Company and the Trustee
Section 5.01.
Lists of Holders
37
Section 5.02.
Preservation and Disclosure of Lists
37
i
Article 6
Defaults
and Remedies
Section 6.01.
Events of Default
37
Section 6.02.
Acceleration; Rescission and Annulment
39
Section 6.03.
Special Interest
40
Section 6.04.
Payments of Notes on Default; Suit Therefor
41
Section 6.05.
Application of Monies Collected by Trustee
43
Section 6.06.
Proceedings by Holders
44
Section 6.07.
Proceedings by Trustee
45
Section 6.08.
Remedies Cumulative and Continuing
45
Section 6.09.
Direction of Proceedings and Waiver of Defaults
by Majority of Holders
45
Section 6.10.
Notice of Defaults
46
Section 6.11.
Undertaking to Pay Costs
46
Article 7
Concerning
the Trustee
Section 7.01.
Duties and Responsibilities of Trustee
47
Section 7.02.
Reliance on Documents, Opinions, Etc.
49
Section 7.03.
No Responsibility for Recitals, Etc.
50
Section 7.04.
Trustee, Paying Agents, Conversion Agents, Bid Solicitation
Agent or Note Registrar May Own Notes
50
Section 7.05.
Monies and Shares of Common Stock To Be Held in
Trust
51
Section 7.06.
Compensation and Expenses of Trustee
51
Section 7.07.
Officer’s Certificate as Evidence
52
Section 7.08.
Eligibility of Trustee
52
Section 7.09.
Resignation or Removal of Trustee
52
Section 7.10.
Acceptance by Successor Trustee
53
Section 7.11.
Succession by Merger, Etc.
54
Section 7.12.
Trustee’s Application for Instructions from
the Company
54
Article 8
Concerning
the Holders
Section 8.01.
Action by Holders
55
Section 8.02.
Proof of Execution by Holders
55
Section 8.03.
Who Are Deemed Absolute Owners
55
Section 8.04.
Company-Owned Notes Disregarded
56
Section 8.05.
Revocation of Consents; Future Holders Bound
56
ii
Article 9
Holders’
Meetings
Section 9.01.
Purpose of Meetings
57
Section 9.02.
Call of Meetings by Trustee
57
Section 9.03.
Call of Meetings by Company or Holders
57
Section 9.04.
Qualifications for Voting
58
Section 9.05.
Regulations
58
Section 9.06.
Voting
58
Section 9.07.
No Delay of Rights by Meeting
59
Article 10
Supplemental
Indentures
Section 10.01.
Supplemental Indentures Without Consent of Holders
59
Section 10.02.
Supplemental Indentures with Consent of Holders
60
Section 10.03.
Effect of Supplemental Indentures
61
Section 10.04.
Notation on Notes
61
Section 10.05.
Evidence of Compliance of Supplemental Indenture
To Be Furnished to Trustee
62
Article 11
Consolidation,
Merger, Sale, Conveyance and Lease
Section 11.01.
Company May Consolidate, Etc. on Certain Terms
62
Section 11.02.
Successor Entity To Be Substituted
63
Article 12
Immunity
of Incorporators, Stockholders, Officers and Directors
Section 12.01.
Indenture and Notes Solely Corporate Obligations
63
Article 13
[Intentionally
Omitted]
Article 14
Conversion
of Notes
Section 14.01.
Conversion Privilege
64
Section 14.02.
Conversion Procedure; Settlement Upon Conversion
68
Section 14.03.
Increased Conversion Rate Applicable to Certain
Notes Surrendered in Connection with Make-Whole Fundamental Changes or a Notice of Redemption
74
Section 14.04.
Adjustment of Conversion Rate
77
Section 14.05.
Adjustments of Prices
87
Section 14.06.
Shares To Be Fully Paid
87
Section 14.07.
Effect of Recapitalizations, Reclassifications and
Changes of the Common Stock
87
Section 14.08.
Certain Covenants
89
Section 14.09.
Responsibility of Trustee
90
Section 14.10.
[Intentionally Omitted]
90
Section 14.11.
Stockholder Rights Plans
90
Section 14.12.
Exchange in Lieu of Conversion
91
iii
Article 15
Repurchase
of Notes at Option of Holders
Section 15.01.
[Intentionally Omitted]
91
Section 15.02.
Repurchase at Option of Holders Upon a Fundamental
Change
92
Section 15.03.
Withdrawal of Fundamental Change Repurchase Notice
95
Section 15.04.
Deposit of Fundamental Change Repurchase Price
95
Section 15.05.
Covenant to Comply with Applicable Laws Upon Repurchase
of Notes
96
Article 16
Redemption
Section 16.01.
Optional Redemption; Cleanup Redemption
97
Section 16.02.
Notice of Redemption; Selection of Notes
98
Section 16.03.
Payment of Notes Called for Redemption
100
Section 16.04.
Restrictions on Redemption
100
Article 17
Miscellaneous
Provisions
Section 17.01.
Provisions Binding on Company’s Successors
100
Section 17.02.
Official Acts by Successor Entity
100
Section 17.03.
Addresses for Notices, Etc.
101
Section 17.04.
Governing Law; Jurisdiction
101
Section 17.05.
Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee
102
Section 17.06.
Legal Holidays
103
Section 17.07.
No Security Interest Created
103
Section 17.08.
Benefits of Indenture
103
Section 17.09.
Table of Contents, Headings, Etc.
103
Section 17.10.
Authenticating Agent
103
Section 17.11.
Execution in Counterparts
104
Section 17.12.
Severability
104
Section 17.13.
Waiver of Jury Trial
105
Section 17.14.
Force Majeure
105
Section 17.15.
Calculations
105
Section 17.16.
USA PATRIOT Act
105
Section 17.17.
Electronic Signatures
106
EXHIBIT
Exhibit A
Form of Note
A-1
iv
INDENTURE dated as of October 16, 2026 between
SENTINELONE, INC., a Delaware 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 0.00% Convertible Senior Notes due 2031 (the “
Notes
”), initially in
an aggregate principal amount not to exceed $1,437,500,000, 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
in this Indenture provided, the valid, binding and legal obligations of the Company, and this Indenture a valid agreement according to
its terms, have been done and performed, and the execution of this Indenture and the issuance hereunder of the Notes have in all respects
been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions
upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:
Article 1
Definitions
Section
1.01.
Definitions.
The terms defined in this
Section
1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective meanings specified in this
Section
1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision. The word “or” is not exclusive and
the word “including” means including without limitation. The word “will” shall be construed to have the same
meaning and effect as the word “shall.” The terms defined in this Article include the plural as well as the
singular.
“
1% Exception
” shall have the meaning specified in Section 14.04(k).
1
“
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 Combination Event
”
shall have the meaning specified in Section 11.01.
“
Business Day
” means, with
respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or
required by law or executive order to close or be closed.
“
Called Notes
” means Notes
called for Optional Redemption or Cleanup Redemption pursuant to Article 16 or, in the case of an Optional Redemption,
subject to a Deemed Redemption.
“
Capital Stock
” means, for
any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) stock issued by that entity, but shall not include any debt securities convertible into or exchangeable for any
securities otherwise constituting Capital Stock pursuant to this definition.
“
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).
2
“
Clause C Distribution
” shall
have the meaning specified in Section 14.04(c).
“
Cleanup Redemption
” shall
have the meaning specified in Section 16.01(b).
“
close of business
” means 5:00
p.m. (New York City time).
“
Code
” means the Internal Revenue
Code of 1986, as amended.
“
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 Class A
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 Order
” means a written
order of the Company signed by any 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(a).
“
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 time, $1,000,
divided by
the Conversion Rate as of such time.
“
Conversion Rate
” shall have
the meaning specified in Section 14.01(a).
“
Corporate Event
” shall have
the meaning specified in Section 14.01(b)(iii).
“
Corporate Trust Office
” means
the designated office of the Trustee at which at any time this Indenture shall be administered, which office at the date hereof is located
at U.S. Bank Trust Company, National Association, 633 West 5
th
Street, 24
th
Floor, Los Angeles, CA 90071, Attention:
Bradley Scarbrough (SentinelOne, Inc. Administrator), or such other address in the continental United States as the Trustee may
designate from time to time by notice to the Holders and the Company, or the 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).
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“
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 thirty (30) consecutive Trading Days during the Observation Period, one-thirtieth (1/30th) 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 quotient resulting from the Specified Dollar Amount (if any)
divided by
thirty (30).
“
Daily Settlement Amount
” for
each of the thirty (30) consecutive Trading Days during the relevant 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 on such Trading Day and the Daily Measurement Value,
divided by
(ii) the Daily
VWAP for such Trading Day.
“
Daily VWAP
” means, for each
of the thirty (30) 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 “S <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.
“
De-Legending Deadline Date
”
means, with respect to the Notes issued pursuant to the Purchase Agreement (or any Notes issued in exchange or substitution thereof)
or any additional Notes issued pursuant to Section 2.10 (or any Notes issued in exchange or substitution thereof), the
three hundred eightieth (380th) day after the last date of original issuance of such Notes or additional Notes, as applicable;
provided
that if such three hundred eightieth (380th) day is after a Special Interest Record Date and on or before the immediately succeeding
Special Interest Payment Date, then the “
De-Legending Deadline Date
” shall instead be the fifth (5th) Business Day
immediately after such Special Interest Payment Date.
“
Deemed Redemption
” shall have
the meaning specified in Section 14.01(b)(v).
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“
Default
” means any event that
is, or after notice or passage of time, or both, would be, an Event of Default.
“
Default Interest
” shall have
the meaning specified in Section 2.03(c).
“
Default Settlement Method
”
means, initially, Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000, subject to Section 14.02(a)(iii).
“
Defaulted Amounts
” means any
amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change Repurchase Price, principal and Special
Interest, if any) that are payable but are not punctually 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.
“
Designated Financial Institution
”
shall have the meaning specified in Section 14.12(a).
“
Distributed Property
” shall
have the meaning specified in Section 14.04(c).
“
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. For the avoidance of doubt,
any alternative trading convention on the applicable exchange or market in respect of shares of the Common Stock under a separate ticker
symbol or CUSIP number will not be considered “regular way” for this purpose.
“
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. For the avoidance of doubt,
any alternative trading convention on the applicable exchange or market in respect of shares of the Common Stock under a separate ticker
symbol or CUSIP number will not be considered “regular way” for this purpose.
“
Exchange Act
” means the 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(a).
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“
Exempted Fundamental Change
”
shall have the meaning specified in Section 15.02(f).
“
Form of Assignment and Transfer
”
means the “Form of Assignment and Transfer” attached as Attachment 3 to the Form of Note attached hereto as Exhibit A.
“
Form of Fundamental Change Repurchase
Notice
” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of
Note attached hereto as Exhibit A.
“
Form of Note
” means the
“Form of Note” attached hereto as Exhibit A.
“
Form of Notice of Conversion
”
means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
“
Fundamental Change
” shall
be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:
(a)
except
in connection with transactions described in clause (b) below, a “person” or “group” within the meaning
of Section 13(d) of the Exchange Act, other than the Company, its direct or indirect Wholly Owned Subsidiaries and the employee
benefit plans of the Company and its direct or indirect Wholly Owned Subsidiaries, has become, and files a Schedule TO (or any successor
schedule, form or report) or any schedule, form or report under the Exchange Act that discloses that such person or group has become,
the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of shares of the Common
Stock representing more than fifty percent (50%) of the then-outstanding shares of Common Stock, unless such beneficial ownership arises
solely as a result of a revocable proxy delivered in response to a public proxy or consent solicitation made pursuant to the applicable
rules and regulations under the Exchange Act and is not also then reportable on Schedule 13D or Schedule 13G (or any successor schedule)
under the Exchange Act regardless of whether such a filing has actually been made;
provided
that no person or group shall be deemed
to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person”
or “group” until such tendered securities are accepted for purchase or exchange under such offer;
(b)
the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from
par value to no par value, or changes resulting from a subdivision or combination) as a result of which the Common Stock would be converted
into, or exchanged for, stock, other securities, other property or assets; (B) any share exchange, consolidation or merger of the
Company pursuant to which the Common Stock will be converted into cash, securities or other property or assets; or (C) any sale,
lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the
Company and its Subsidiaries, taken as a whole, to any Person other than one or more of the Company’s direct or indirect Wholly
Owned Subsidiaries;
provided
,
however
, that a transaction described in clause (A) or clause (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
fifty percent (50%) of all classes of Common Equity of the continuing or surviving entity or transferee or the parent thereof immediately
after such transaction in substantially the same proportions (relative to each other) as such ownership immediately prior to such transaction
shall not be a Fundamental Change pursuant to this clause (b);
6
(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 Equity (or American shares receipts representing Common Equity) underlying the Notes) ceases to be listed
or quoted on any of the New York Stock Exchange, 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 (b) above shall not constitute a Fundamental Change, if at
least ninety percent (90%) of the consideration received or to be received by the holders of the Common Stock, excluding cash payments
for fractional shares and cash payments made in respect of dissenters’ appraisal rights, in connection with such transaction or
transactions consists of shares of Common Equity (or American depositary shares representing shares of Common Equity) that are listed
or quoted on any of the New York Stock Exchange, 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, excluding cash payments for fractional shares
and cash payments made in respect of dissenters’ appraisal rights (subject to the provisions of Section 14.02(a)).
If any transaction in which the Common Stock is replaced by the common stock or other Common Equity (or American depositary shares representing
Common Equity) 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.
For the purposes of this definition, any transaction
or event described in both clause (a) and in clause (b) above (without regard to the
proviso
in clause (b)) shall be
deemed to occur solely pursuant to clause (b) above (subject to such
proviso
).
“
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).
7
“
Fundamental Change Repurchase Price
”
shall have the meaning specified in Section 15.02(a).
The terms “
given,
” “
mailed,
”
“
notify
” or “
sent
” with respect to any notice to be given to a Holder pursuant to this Indenture,
shall mean notice (x) given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its
designee, including by electronic mail in accordance with accepted practices or applicable procedures at the Depositary (in the case
of a Global Note) or (y) mailed to such Holder by first class mail, postage prepaid, at its address as it appears on the Note Register
(in the case of a Physical Note), in each case, in accordance with Section 17.03. Notice so “given” shall
be deemed to include any notice to be “mailed” or “delivered,” as applicable, under this Indenture.
“
Global Note
” shall have the
meaning specified in Section 2.05(b).
“
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.
“
Irrevocable Election
” shall
have the meaning specified in Section 14.02(a)(iii).
“
last date of original issuance
”
means (a) with respect to any Notes issued pursuant to the Purchase Agreement, and any Notes issued in exchange therefor or in substitution
thereof, the date the Company first issues such Notes; and (b) with respect to any additional Notes issued pursuant to Section 2.10,
and any Notes issued in exchange therefor or in substitution thereof, either (i) the later of (x) the date such Notes are originally
issued and (y) the last date any Notes are originally issued as part of the same offering pursuant to the exercise of an option
granted to the initial purchaser(s) of such Notes to purchase additional Notes; or (ii) such other date as is specified in
an Officer’s Certificate delivered to the Trustee before the original issuance of such Notes.
“
Last Reported Sale Price
”
of the Common Stock (or any other security for which a closing sale price must be determined) on any date means the closing sale price
per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average
of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or
regional securities exchange on which the Common Stock (or such other security) is traded. If the Common Stock (or such other security)
is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “
Last Reported Sale Price
”
shall be the last quoted bid price for the Common Stock (or such other security) 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 (or such other security) is not so quoted, the “
Last
Reported Sale Price
” shall be the average of the mid-point of the last bid and ask prices for the Common Stock (or such other
security) on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the
Company for this purpose. The “
Last Reported Sale Price
” shall be determined without regard to after-hours trading
or any other trading outside of regular trading session hours.
8
“
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 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
trading on any U.S. exchange relating to the Common Stock;
provided, however
, that a restriction on trading imposed solely by
Rule 201 of Regulation SHO promulgated under the Exchange Act (as in effect on the date of this Indenture) shall not constitute
a “
Market Disruption Event
.”
“
Maturity Date
” means October 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 Cleanup Redemption
”
shall have the meaning specified in Section 16.02(a).
“
Notice of Conversion
” shall
have the meaning specified in Section 14.02(b).
“
Notice of Optional Redemption
”
shall have the meaning specified in Section 16.02(a).
“
Notice of Redemption
” means
a Notice of Optional Redemption or a Notice of Cleanup Redemption, as applicable.
9
“
Observation Period
” with respect
to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs prior to July 1,
2031, the thirty (30) consecutive Trading Day period beginning on, and including, the second (2nd) Trading Day immediately succeeding
such Conversion Date; (ii) with respect to any Called Notes, if the relevant Conversion Date occurs during the related Redemption
Period, the thirty (30) consecutive Trading Days beginning on, and including, the thirty-first (31st) Scheduled Trading Day immediately
preceding the related Redemption Date; and (iii) subject to clause (ii), if the relevant Conversion Date occurs on or after July 1,
2031, the thirty (30) consecutive Trading Days beginning on, and including, the thirty-first (31st) Scheduled Trading Day immediately
preceding the Maturity Date.
“
Offering Memorandum
” means
the preliminary offering memorandum dated October 13, 2026, as supplemented by the related pricing term sheet dated October 13,
2026, relating to the offering and sale of the Notes.
“
Officer
” means, with respect
to the Company, the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Legal Officer, the Corporate Secretary.
“
Officer’s Certificate
,”
when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by any Officer of the
Company. Each such certificate shall include the statements provided for in Section 17.05 if and to the extent required
by the provisions of such Section. The Officer giving an Officer’s Certificate pursuant to Section 4.08 shall be the
principal executive, financial or accounting officer of the Company.
“
open of business
” means 9:00
a.m. (New York City time).
“
Opinion of Counsel
” means
an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel who is reasonably
acceptable to the Trustee, which opinion may contain customary exceptions and qualifications as to the matters set forth therein, that
is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 17.05 if and to the
extent required by the provisions of such Section 17.05.
“
Optional Redemption
” shall
have the meaning specified in Section 16.01(a).
“
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 cancelled 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);
10
(c)
Notes
that have been paid pursuant to the second paragraph of 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; and
(e)
Notes
redeemed pursuant to Article 16.
“
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 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 October 13, 2026, between the Company and J.P. Morgan Securities LLC, BofA Securities, Inc.,
Morgan Stanley & Co. LLC, TD Securities (USA) LLC and Wells Fargo Securities, LLC, as representatives of the several initial
purchasers named therein.
“
Qualified Successor Entity
”
means, with respect to a Business Combination Event, a corporation;
provided
,
however
, that (i) if such Business Combination
Event is an Exempted Fundamental Change, then a limited liability company, limited partnership or other similar entity shall also constitute
a Qualified Successor Entity with respect to such Business Combination Event; and (ii) a limited liability company or limited partnership
that is the resulting, surviving or transferee person of such Business Combination Event shall also constitute a Qualified Successor
Entity with respect to such Business Combination Event, if each of the following clauses (1), (2), (3) and (4) is satisfied:
(1) either (x) such limited liability company or limited partnership is treated as a corporation or an entity disregarded as
separate from a corporation, in each case for U.S. federal income tax purposes or (y) the Company has received an opinion of a nationally
recognized tax counsel to the effect that such Business Combination Event will not be treated as an exchange under Section 1001
of the Code for Holders or beneficial owners of the Notes; (2) such limited liability company or limited partnership is a direct
or indirect, Wholly Owned Subsidiary of a corporation (or other entity treated as a corporation for U.S. federal income tax purposes)
duly organized and existing under the laws of the United States of America, any state thereof or the District of Columbia (or such limited
liability company or limited partnership is treated as a corporation for U.S. federal income tax purposes); (3) such Business Combination
Event constitutes a Share Exchange Event whose Reference Property consists solely of any combination of cash in U.S. dollars and shares
of common stock or other corporate Common Equity interests of a corporation (or other entity treated as a corporation for U.S. federal
income tax purposes) described in clause (2); and (4) if such limited liability company or limited partnership is disregarded as
separate from its owner for U.S. federal income tax purposes, its regarded owner for U.S. federal income tax purposes is a corporation
(or other entity treated as a corporation for U.S. federal income tax purposes) described in clause (2).
11
“
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
” means a Cleanup
Redemption and/or Optional Redemption, as applicable.
“
Redemption Date
” shall have
the meaning specified in Section 16.02(a).
“
Redemption Period
” means,
with respect to any Optional Redemption or Cleanup Redemption, the period from, and including, the date on which the Company delivers
a Notice of Optional Redemption for such Optional Redemption or a Notice of Cleanup Redemption for such Cleanup Redemption, as the case
may be, until the close of business on the second (2nd) Scheduled Trading Day immediately preceding the related Redemption Date (or,
if the Company defaults in the payment of the Redemption Price, until the close of business on the Scheduled Trading Day immediately
preceding the date on which the Redemption Price has been paid or duly provided for).
“
Redemption Price
” means, for
any Notes to be redeemed pursuant to Section 16.01, one hundred percent (100%) of the principal amount of such Notes,
plus
accrued and unpaid Special Interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after
a Special Interest Record Date but on or prior to the immediately succeeding Special Interest Payment Date, in which case Special Interest
accrued to the Special Interest Payment Date will be paid by the Company to Holders of record of such Notes as of the close of business
on such Special Interest Record Date on such Special Interest Payment Date, and the Redemption Price will be equal to one hundred percent
(100%) of the principal amount of such Notes).
12
“
Reference Property
” shall
have the meaning specified in Section 14.07(a).
“
Reporting Event of Default
”
shall have the meaning specified in Section 6.03.
“
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 department of the Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate
trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject
and who, in each case, shall have direct responsibility for the administration of this Indenture.
“
Restricted Securities
” shall
have the meaning specified in Section 2.05(c).
“
Restrictive Notes Legend
”
shall have the meaning specified in Section 2.05(c).
“
Rule 12b-25
” means Rule 12b-25
as promulgated under the Exchange Act.
“
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).
13
“
Share Exchange Event
” shall
have the meaning specified in Section 14.07(a).
“
Significant
Subsidiary
” means a Subsidiary of the Company that is a “significant subsidiary” as defined in Article 1,
Rule 1-02(w) of Regulation S-X promulgated by the Commission (or any successor rule);
provided
that,
if and to
the extent paragraph (w)(1)(iii)(A)(2) does not apply to the determination of whether the income test in paragraph (w)(1)(iii) is
met, in the case of a Subsidiary that meets the criteria of clause (1)(iii) of the definition thereof but not clause (1)(i) or
(1)(ii) thereof, in each case as such rule is in effect on the date of this Indenture, such Subsidiary shall not be deemed
to be a Significant Subsidiary unless the Subsidiary’s income from continuing operations before income taxes, exclusive of amounts
attributable to any non-controlling interests and after intercompany eliminations, for the last completed fiscal year prior to the date
of such determination exceeds fifty million dollars ($50,000,000). For the avoidance of doubt, to the extent any such Subsidiary would
not be deemed to be a “significant subsidiary” under the relevant definition set forth in Article 1, Rule 1-02(w) of
Regulation S-X (or any successor rule) as in effect on the relevant date of determination, such Subsidiary shall not be deemed to be
a “Significant Subsidiary” under this Indenture irrespective of whether such Subsidiary would otherwise be deemed to be a
“Significant Subsidiary” after giving effect to the
proviso
in the immediately preceding sentence.
“
Special Interest
” means all
amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section 6.03,
as applicable.
“
Special Interest Payment Date
”
means, if and to the extent that Special Interest is payable on the Notes, each April 1 and October 1 of each year, beginning
on April 1, 2027.
“
Special Interest Record Date
,”
with respect to any Special Interest Payment Date, means the March 15 or September 15 (whether or not such day is a Business
Day) immediately preceding the applicable April 1 or October 1 Special Interest Payment Date, respectively.
“
Specified Dollar Amount
” means
the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified in the Settlement Notice (or
deemed specified as provided in Section 14.02(a)(iii)) related to any converted Notes.
“
Spin-Off
” shall have the meaning
specified in Section 14.04(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 fifty percent (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.
14
“
Successor Entity
” shall have
the meaning specified in Section 11.01(a).
“
Trading Day
” means, except
for determining amounts due upon conversion, 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 New York Stock Exchange or, if the Common Stock (or such other security) is not
then listed on the New York Stock Exchange, 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 New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, 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 five
million dollars ($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;
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, on any determination date, the Bid Solicitation Agent cannot reasonably obtain at least one bid
for five million dollars ($5,000,000) (or such lesser amount as may then be outstanding) principal amount of Notes from a nationally
recognized securities dealer, then the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed
to be less than ninety-eight percent (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).
15
“
Trust Indenture Act
” means
the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture;
provided
,
however
,
that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall
mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.
“
Trustee
” means the Person
named as the “
Trustee
” in the first paragraph of this Indenture until a successor trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean or include each Person who is
then a Trustee hereunder.
“
unit of Reference Property
”
shall have the meaning specified in Section 14.07(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 fifty percent (50%)” in the definition of “Subsidiary” shall be deemed replaced by a reference to “one hundred
percent (100%),” the calculation of which shall exclude nominal amounts of the voting power of shares of Capital Stock or other
interests in the relevant Subsidiary not held by such Person to the extent required to satisfy local minority interest requirements outside
of the United States.
Section 1.02.
References
to Interest.
Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture shall
be deemed to refer solely to Special Interest (if, in such context, Special Interest is, was or would be payable pursuant to any of
Section 4.06(d),
Section 4.06(e) and
Section 6.03)
and/or to any interest payable on any Defaulted Amounts as set forth in
Section 2.03(c).
Article 2
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01.
Designation
and Amount.
The Notes shall be designated as the “0.00% Convertible Senior Notes due 2031.” The aggregate principal amount
of Notes that may be authenticated and delivered under this Indenture is initially limited to $1,437,500,000, 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 a Note, the provisions
of this Indenture shall control and govern to the extent of such conflict.
16
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 and the Fundamental
Change Repurchase Price, if applicable) of, and any 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; No Regular Interest; Payments of Special 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 thereof. Each Note shall
be dated the date of its authentication and shall not bear regular interest, and the principal amount of the Notes shall not accrete.
Special Interest on the Notes, if any, 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 Special Interest
Record Date with respect to any Special Interest Payment Date shall be entitled to receive any Special Interest payable on such Special
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 within the continental United States of America, 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, or cause the Paying Agent to pay, any Special Interest
(i) on any Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of five million dollars
($5,000,000) or less, by check mailed to the Holders 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 five million dollars ($5,000,000), either by check mailed to each such
Holder or, upon written application by such a Holder to the Note Registrar not later than the relevant Special Interest Record Date,
by wire transfer in immediately available funds to that Holder’s account within the United States if such Holder has provided the
Company, the Trustee or the Paying Agent (if other than the Trustee) with the requisite information necessary to make such wire transfer,
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.
17
(c)
Any
Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date and shall not accrue interest unless
Special Interest was payable pursuant to this Indenture on the relevant payment date, in which case such Defaulted Amounts shall accrue
interest per annum at the then-applicable Special Interest rate borne by the Notes, subject to the enforceability thereof under applicable
law, from, and including, such relevant payment date (such interest, “
Default Interest
”), and such Defaulted Amounts
together with any such interest thereon shall be paid by the Company, at its election in each case, as provided in clause
(i) or
(ii) below. For the avoidance of doubt, if any Defaulted Amounts, together with any required Default Interest, are paid
to Holders in accordance with the terms of this Indenture prior to (x) the expiration of any applicable grace period with respect
to the Default in the relevant payment set forth in
Section 6.01 or (y) if later, the delivery of any related notice
of acceleration, such payment Default shall be deemed cured and the Notes shall not be subject to acceleration on account of such payment
Default.
(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 twenty-five (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 fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment, and not less than ten (10) days after the receipt by the Trustee of the notice of the proposed payment
(unless the Trustee shall consent to an earlier date). The Company shall promptly notify the Trustee in writing 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 ten (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). For the avoidance of doubt, the Company may make payment of any Defaulted Amounts
and any interest thereon relating to any amounts due upon conversion of the Notes (other than Special Interest) in a manner other than
as provided in
Section 2.03(c)(i) if such manner would be permitted under the terms of this Indenture if
such amounts due upon conversion were not Defaulted Amounts.
18
(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 written 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, facsimile
or other electronic signature of its Chief Executive Officer, President, Chief Financial Officer, Chief Legal Officer or Corporate Secretary.
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 (such Company Order to include the terms of the Notes) 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;
provided
that, subject to Section 17.05, the Trustee shall be entitled to receive an Officer’s Certificate
and an Opinion of Counsel of the Company with respect to the issuance, authentication and delivery of such Notes.
19
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 the Trustee, upon receipt of a Company Order, 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 the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive,
bearing registration numbers not contemporaneously outstanding.
20
All Notes presented or surrendered for registration
of transfer or for exchange, repurchase or conversion shall (if so required by the Company, the Trustee, the Note Registrar or any co-Note
Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company
and the Note Registrar and duly executed, by the Holder thereof or its attorney-in-fact duly authorized in writing.
No service charge shall be imposed by the Company,
the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer of Notes, but
the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in
connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration of transfer being different
from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company, the Trustee, the Note Registrar
or any co-Note Registrar shall be required to exchange for other Notes 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 required repurchase upon a Fundamental Change (and not validly 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 pursuant to an Optional Redemption.
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.
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).
Except as expressly provided herein, 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 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.
(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
(each, a “
Global Note
”) registered in the name of the Depositary or the nominee of the Depositary. Each Global Note
shall bear the legend required on a Global Note set forth in Exhibit A hereto. 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 applicable procedures
of the Depositary therefor.
21
(c)
Every
Note that bears or is required under this
Section 2.05(c) to bear the Restrictive Notes Legend (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 Restrictive Notes 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 (1) 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 (the “
Restrictive Notes Legend
”) (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):
THE OFFER AND SALE OF THIS SECURITY AND THE CLASS A
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
”) OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION, 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
22
(2)
AGREES
FOR THE BENEFIT OF SENTINELONE, 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 THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS
OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
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 Notes 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 Notes Legend specified in this Section 2.05(c) and shall not be
assigned a restricted CUSIP number. In addition, the Company may effect the removal of the Restrictive Notes Legend upon the Company’s
delivery to the Trustee of written notice to such effect, whereupon the Restrictive Notes Legend set forth above and affixed on any Note
shall be deemed, in accordance with the terms of the certificate representing such Note, to be removed therefrom without further action
by the Company, the Trustee, the Holder(s) thereof or any other Person; at such time, such Note shall be deemed to be assigned an
unrestricted CUSIP number as provided in the certificate representing such Note, it being understood, including for purposes of Section 4.06(e),
that the Depositary of any Global Note may require a mandatory exchange or other process to cause such Global Note to be identified by
an unrestricted CUSIP number in the facilities of such Depositary. The Company shall promptly notify the Trustee in writing 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.
23
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 ninety (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 ninety (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 cancelled.
24
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, cancelled, repurchased upon a Fundamental Change, redeemed or transferred, such Global Note shall be, upon receipt
thereof, cancelled 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, cancelled, repurchased
upon a Fundamental Change, 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 for any act or omission
of the Depositary or for the payment of amounts to owners of beneficial interests in a Global Note, for any aspect of the records relating
to or payments made on account of those interests by the Depositary, or for maintaining, supervising or reviewing any records of the
Depositary relating to those interests.
25
(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 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 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
”) OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION, 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 SENTINELONE, 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 THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE
WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRANSFER AGENT FOR THE COMPANY’S CLASS A 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.
26
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).
The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial
owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(e)
Any
Note or restricted 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 (3) 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).
Section 2.06.
Mutilated,
Destroyed, Lost or Stolen Notes.
In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion
may execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver,
a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or
in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish
to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them
to save each of them harmless from any loss, claim, 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.
27
The Trustee or such authenticating agent may authenticate
any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if applicable,
such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee, the Note Registrar, any co-Note
Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require a Holder to pay a sum sufficient
to cover any documentary, stamp or similar issue or transfer tax required in connection therewith as a result of the name of the Holder
of the new substitute Note being different from the name of the Holder of the old Note that became mutilated or was destroyed, lost or
stolen. In case any Note that has matured or is about to mature or has been surrendered for required repurchase upon a Fundamental Change
or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost or stolen, the
Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such
payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss, claim, 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 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.
28
Section 2.08.
Cancellation
of Notes Paid, Converted, Etc.
The Company shall cause all Notes surrendered for the purpose of payment at maturity, repurchase upon
a Fundamental Change, Redemption, registration of transfer or exchange or conversion (other than any Notes exchanged pursuant to
Section 14.12),
if surrendered to the Company or any of its agents or Subsidiaries, to be surrendered to the Trustee for cancellation. All Notes delivered
to the Trustee shall be cancelled promptly by it in accordance with its customary procedures upon written request of the Company. 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 cancelled 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 the Trustee
shall have no liability for any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and,
provided,
further,
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, or notice to, 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, Special Interest, if any, accrued prior to the issue date of such additional Notes and, if applicable,
restrictions on transfer in respect of such additional Notes, including the date by which any Restrictive Notes Legend may be removed)
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 one or more separate CUSIP
numbers or no 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,
in addition to those required by
Section 17.05, as the Trustee shall reasonably
request. In addition, the Company may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are
surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or through
a privately negotiated transaction or public tender or exchange offer or through counterparties to private agreements, including by cash-settled
swaps or other derivatives, in each case, without the consent of or notice to the Holders of the Notes. The Company may, at its option
and to the extent permitted by applicable law, reissue, resell or surrender to the Trustee for cancellation any Notes that it may repurchase,
in the case of a reissuance or resale, so long as such Notes do not constitute “restricted securities” (as defined under
Rule 144) upon such reissuance or resale;
provided
that if any such reissued or resold Notes are not fungible with the Notes
initially issued hereunder for U.S. federal income tax or securities law purposes, such reissued or resold Notes shall have one or more
separate CUSIP numbers or no CUSIP number. Any Notes that the Company may repurchase shall be considered outstanding for all purposes
under this Indenture (other than, at any time when such Notes are owned by the Company, by any Subsidiary thereof or by any Affiliate
of the Company or any Subsidiary thereof, as set forth in
Section 8.04) unless
and until such time as the Company surrenders them to the Trustee for cancellation and, upon receipt of a Company Order, the Trustee
shall cancel all Notes so surrendered.
29
Article 3
Satisfaction and Discharge
Section 3.01.
Satisfaction
and Discharge.
(a) This Indenture and the Notes shall cease to be of further effect when (i) all Notes theretofore authenticated
and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced, paid or converted as
provided in
Section 2.06 and (y) Notes for whose payment money has heretofore
been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust,
as provided in
Section 4.04(d)) have been delivered to the Trustee for cancellation;
or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable,
whether on the Maturity Date, any Redemption Date, any Fundamental Change Repurchase Date, upon conversion or otherwise, cash or, solely
in the case of conversion, cash, shares of Common Stock or a combination thereof, sufficient to pay all of the outstanding Notes and
all other sums due and payable under this Indenture or the Notes by the Company; and (b) the Trustee upon request of the Company
contained in an Officer’s Certificate and at the expense of the Company, shall execute such instruments reasonably requested by
the Company acknowledging satisfaction and discharge of this Indenture, when 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 or the earlier
resignation or removal of the Trustee, the obligations of the Company to the Trustee under
Section 7.06
shall survive.
30
Article 4
Particular Covenants of the Company
Section 4.01.
Payment
of Principal and Special Interest.
The Company covenants and agrees that it will cause to be paid the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest, if any, on, each of the Notes
at the places, at the respective times and in the manner provided herein and in the Notes.
Any applicable withholding taxes (including backup
withholding) may be withheld from or set off against payments of interest, if any, or payments upon conversion, redemption, repurchase
or maturity of the Notes, or if any withholding taxes (including backup withholding) are paid on behalf of a Holder or beneficial owner
of the Notes, those withholding taxes may be withheld from or set off against payments of cash or Common Stock, if any, payable on the
Notes (or, in some circumstances, any payments on the Common Stock) or sales proceeds paid to, or other funds or assets of, the Holder
or beneficial owner of the Notes.
Section 4.02.
Maintenance
of Office or Agency.
The Company will maintain within the continental United States of America an office or agency where the Notes
may be surrendered for registration of transfer or exchange or for presentation for payment or repurchase (“
Paying Agent
”)
or for conversion (“
Conversion Agent
”) and where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office or the designated office or agency of the Trustee in the continental United States of America.
The Company may also from time to time designate
as co-Note Registrars one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided
that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency within the continental United States of America for such purposes. The
Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any
such other office or agency. The terms “
Paying Agent
” and “
Conversion Agent
” include any such additional
or other offices or agencies, as applicable.
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 within the
continental United States of America where Notes may be surrendered for registration of transfer or exchange or for presentation for
payment or repurchase or for conversion and where notices and demands to or upon the Company in respect of the Notes and this Indenture
may be served;
provided
that the Corporate Trust Office shall not be a place for service of legal process for the Company.
31
Section 4.03.
Appointments
to Fill Vacancies in Trustee’s Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in
Section 7.09, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 4.04.
Provisions
as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee, the Company will cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this
Section 4.04:
(i)
that
it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable) of, and accrued and unpaid interest, if any, on, the Notes in trust for the benefit of the Holders;
(ii)
that
it will give the Trustee prompt written notice of any failure by the Company to make any payment of the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest, if any, 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.
The Company shall, on or before each due date
of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid
interest, if any, on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, if any, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee in writing of any failure to take such action;
provided
that if such
deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.
(b)
If
the Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price and
the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest, if any, 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
and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest, if any, so becoming due and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest, if any,
on, the Notes when the same shall become due and payable.
32
(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 or any Paying Agent, or then held by
the Company, in trust for the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if
applicable) of, accrued and unpaid interest, if any, on and the consideration due upon conversion of any Note and remaining unclaimed
for two (2) years after such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable),
interest, if any, or consideration due upon conversion has become due and payable shall be paid to the Company on request of the Company
contained in an Officer’s Certificate, or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money and shares of Common Stock, and all liability of the Company as trustee
thereof, shall thereupon cease.
(e)
Upon
any Event of Default pursuant to
Section 6.01(h) or
Section 6.01(i), the Trustee shall
automatically become the Paying Agent.
Section 4.05.
Existence.
Subject to
Article 11, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
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, 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.
(b)
The
Company shall file with the Trustee, within fifteen (15) days after the same are required to be filed with the Commission, copies of
any annual or quarterly reports (on Form 10-K or Form 10-Q or any respective successor form) that the Company is required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or
reports, or portions thereof, subject to confidential treatment and any correspondence with the Commission, and after giving effect to
any grace period provided by Rule 12b-25 (or any successor thereto), which grace period, for the avoidance of doubt, shall be deemed
applicable whether or not the Company checks the box in the relevant Rule 12b-25 filing indicating that the Company expects to file
such report within the applicable Rule 12b-25 grace period). Any such document or report that the Company files with the Commission
via the Commission’s EDGAR system (or any successor system) shall be deemed to be filed with the Trustee for purposes of this
Section 4.06(b) at
the time such documents are filed via the EDGAR system (or such successor), it being understood that the Trustee shall not be responsible
for determining whether such filings have been made.
33
(c)
Delivery
of the reports, information and documents described in subsection
(b) above to the Trustee is for informational
purposes only, and the information and the Trustee’s receipt of such shall not constitute actual or constructive notice of any
information contained therein or determinable from information contained therein, including the Company’s compliance with any of
its covenants hereunder (as to which the Trustee is entitled to conclusively rely on an Officer’s Certificate).
(d)
If,
at any time during the six (6)-month period beginning on, and including, the date that is six (6) months after the last date of
original issuance of the Notes, 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 (other than current reports on Form 8-K and after giving
effect to all applicable grace periods thereunder, including any grace period provided by Rule 12b-25 (or any successor rule), which
grace period, for the avoidance of doubt, shall be deemed applicable whether or not the Company checks the box in the relevant Rule 12b-25
filing indicating that the Company expects to file such report within the applicable Rule 12b-25 grace period), 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 (3) 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 Special Interest on the Notes. Such Special
Interest shall accrue on the Notes at a rate equal to 0.25% per annum for the first ninety (90) days and thereafter at a rate equal to
0.50% 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 (3) 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 does not include documents or reports that the Company furnishes to the Commission pursuant to Section 13 or 15(d) of
the Exchange Act. For purposes of this
Section 4.06(d), the phrase “restrictions pursuant to U.S. securities
laws or the terms of this Indenture or the Notes” shall not include, for the avoidance of doubt, the assignment of a restricted
CUSIP number or the existence of the Restrictive Notes Legend on Notes in compliance with
Section 2.05(c), in either
case, during the six (6)-month period described in this
Section 4.06(d).
34
(e)
If,
and for so long as, the Restrictive Notes Legend on the Notes specified in
Section 2.05(c) has not been, or
is not deemed, removed in accordance with
Section 2.05(c), 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 (3) 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, the Company shall pay Special
Interest on the Notes at a rate equal to 0.25% per annum for the first ninety (90) days and thereafter at a rate equal to 0.50% per annum
of the principal amount of Notes outstanding until the Restrictive Notes Legend on the Notes has been, or is deemed to have 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 (3) months immediately preceding) without restrictions pursuant to U.S. securities laws or the terms
of this Indenture or the Notes;
provided, however
, that no Special Interest shall accrue or be owed pursuant to this
Section 4.06(e) until
the fifteenth (15th) Business Day following written notification to the Company by the Trustee (at the direction of any Holder) or any
Holder or beneficial owner of the Notes (in the case of a beneficial owner of a Note, subject to the satisfactory verification of such
beneficial owner’s identity and ownership) 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 three hundred thirtieth (330th) day after the last date of original issuance of the Notes),
it being understood and agreed that in no event shall Special Interest accrue or be owed pursuant to this
Section 4.06(e) for
any period prior to the applicable De-Legending Deadline Date. The Restrictive Notes Legend on the Notes shall be deemed removed pursuant
to the terms of this Indenture as provided in Section 2.05(c), and, at such time, the Notes will, pursuant to, and subject to the
provisions of, such Section, be deemed assigned an unrestricted CUSIP number. However, for the avoidance of doubt, Global Notes will
continue to bear Special Interest pursuant to this paragraph until such time as they are identified by an unrestricted CUSIP in the facilities
of the Depositary therefor, as a result of completion of such Depositary’s mandatory exchange process or otherwise.
(f)
Special
Interest will be payable in arrears on each Special Interest Payment Date following accrual as set forth in
Section 2.03(b);
provided
that if the first date on which any Special Interest begins to accrue on any Global Note is on or after the fifth (5th)
Business Day before a Special Interest Record Date and before the next Special Interest Payment Date, then, notwithstanding anything
to the contrary, the amount thereof accruing in respect of the period from, and including, such first date to, but excluding, such Special
Interest Payment Date shall not be payable on such Special Interest Payment Date but shall instead be deemed to accrue (without duplication)
entirely on such Special Interest Payment Date (and, for the avoidance of doubt, no interest shall accrue as a result of the related
delay).
35
(g)
Subject
to the immediately succeeding sentence, the Special 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 Special Interest that may be payable as a
result of the Company’s election pursuant to
Section 6.03. However, in no event shall Special Interest payable
for the Company’s failure to comply with its obligations to timely file any document or report that the Company is required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (other than current reports on
Form 8-K and after giving effect to all applicable grace periods thereunder, including any grace period provided by Rule 12b-25
(or any successor rule), which grace period, for the avoidance of doubt, shall be deemed applicable whether or not the Company checks
the box in the relevant Rule 12b-25 filing indicating that the Company expects to file such report within the applicable Rule 12b-25
grace period), as set forth in
Section 4.06(d), together with any Special Interest that may accrue at the Company’s
election as a result of the Company’s failure to comply with its reporting obligations pursuant to
Section 6.03,
accrue at a rate in excess of 0.50% per annum pursuant to this Indenture, regardless of the number of events or circumstances giving
rise to the requirement to pay such Special Interest.
(h)
If
Special 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 Special Interest
that is payable and (ii) the date on which such Special Interest is payable. Unless and until a Responsible Officer of the Trustee
receives at the Corporate Trust Office such Officer’s Certificate, the Trustee may conclusively assume without inquiry that no
such Special Interest is payable, and the Trustee shall not have any duty to verify the Company’s calculation of Special Interest.
If the Company has paid Special Interest directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s
Certificate setting forth the particulars of such payment.
Section 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, if any, 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 one hundred twenty (120) days after the end
of each calendar year (beginning with the calendar year ending on December 31, 2026) an Officer’s Certificate stating whether
the signers thereof have knowledge of any Event of Default that occurred during the previous year that is then continuing and, if so,
specifying each such Event of Default and the nature thereof.
36
In addition, the Company shall deliver to the
Trustee, within thirty (30) days after the Company obtains knowledge of the occurrence of any Event of Default or Default, an Officer’s
Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing
to take in respect thereof;
provided
that the Company is not required to deliver such notice if such Event of Default or Default
has been cured or is no longer continuing.
Section 4.09.
Further
Instruments and Acts.
Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
Article 5
Lists of Holders and Reports by the Company and the Trustee
Section 5.01.
Lists
of Holders.
The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, semi-annually, not more
than fifteen (15) days after each March 15 and September 15 in each year beginning with March 15, 2027, and at such other
times as the Trustee may request in writing, within thirty (30) days after receipt by the Company of any such request (or such lesser
time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list
in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than fifteen (15)
days (or such other date as the Trustee may reasonably request in order to so provide any such notices) prior to the time such information
is furnished, except that no such list need be furnished so long as the Trustee is acting as Note Registrar.
Section 5.02.
Preservation
and Disclosure of Lists.
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the
names and addresses of the Holders contained in the most recent list furnished to it as provided in
Section 5.01
or maintained by the Trustee in its capacity as Note Registrar, if so acting. The Trustee may dispose of any list furnished to it as
provided in
Section 5.01 upon receipt of a new list so furnished.
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 Special Interest, if any, on any Note when due and payable, and the default continues for a period of thirty (30) days;
(b)
default
in the payment of principal of any Note when due and payable on the Maturity Date, upon Optional Redemption, upon Cleanup Redemption,
upon any required repurchase, upon declaration of acceleration or otherwise;
37
(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 five (5) Business Days;
(d)
failure
by the Company to issue (i) a Fundamental Change Company Notice in accordance with
Section 15.02(c) or
notice of a Make-Whole Fundamental Change in accordance with
Section 14.03(b), in either case when due and such
failure continues for five (5) Business Days, or (ii) notice of a specified corporate transaction in accordance with
Section 14.01(b)(ii) or
Section 14.01(b)(iii) when due and such failure continues for three (3) Business Days;
(e)
failure
by the Company to comply with its obligations under
Article 11;
(f)
failure
by the Company for sixty (60) days after written notice from the Trustee or the Holders of at least twenty-five percent (25%) in principal
amount of the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes
or this Indenture;
(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 with a principal amount in excess
of eighty million dollars ($80,000,000) (or its foreign currency equivalent) in the aggregate of the Company and/or any such Significant
Subsidiary, whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being
declared due and payable prior to its stated maturity date or (ii) constituting a failure to pay the principal of any such debt
when due and payable (after the expiration of all applicable grace periods) at its stated maturity, upon required repurchase, upon declaration
of acceleration or otherwise, and in the cases of clauses
(i) and
(ii), such acceleration shall not have
been rescinded or annulled or such failure to pay or default shall not have been cured or waived, or such indebtedness is not paid or
discharged, as the case may be, within forty-five (45) days after written notice to the Company by the Trustee or to the Company and
the Trustee by Holders of at least twenty-five percent (25%) in aggregate principal amount of Notes then outstanding in accordance with
this Indenture;
(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
38
(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 sixty (60) consecutive days.
Section 6.02.
Acceleration;
Rescission and Annulment
. If one or more Events of Default shall have occurred and be continuing, 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), unless the principal of
all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least twenty-five percent (25%) in
aggregate principal amount of the Notes then outstanding determined in accordance with
Section 8.04,
by notice in writing to the Company (and to the Trustee if given by Holders), may declare one hundred percent (100%) of the principal
of, and accrued and unpaid Special Interest, if any, on, all the outstanding 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 a Significant Subsidiary) occurs and is continuing, one hundred percent (100%) of the principal of, and accrued and unpaid Special
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, 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 (including, for the avoidance of doubt, the failure to pay interest, if any, due and payable on any Defaulted Amounts),
other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall have become due solely by
such acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every such case 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.
39
For the avoidance of doubt, and without limiting
the manner in which any Default or Event of Default can be cured: (i) a failure by the Company to send a notice in accordance with
this Indenture and any related Default (or Event of Default) shall be deemed cured and shall cease to continue upon delivery of such
notice to the applicable recipient; (ii) if the Company fails to make any payment of principal of or interest on the Notes (or delivery
of any other consideration in respect thereof) when due, such Default (or Event of Default) shall be deemed cured and shall cease to
continue upon the making of such payment or delivery, as applicable, together with any accrued Special Interest thereon, if applicable;
and (iii) a Reporting Event of Default shall be deemed cured and shall cease to continue at such time as the Company files the applicable
report or reports that gave rise to such Reporting Event of Default (it being understood that any report that the Company files with
the Commission through the EDGAR system (or any successor thereto) will be deemed to be filed with the Trustee at the time such report
is so filed via the EDGAR system (or such successor));
provided
that, for the avoidance of doubt, (x) the cure of any Event
of Default shall not invalidate any acceleration of the Notes on account of such Event of Default that was properly effected prior to
such time as such Event of Default was cured and (y) the cure of any Reporting Event of Default shall not affect the Company’s
obligation to pay any Special Interest that accrues prior to the time of such cure. In addition, (i) if a Default that is not an
Event of Default is cured or waived before such Default would have constituted an Event of Default, then no Event of Default shall result
from such Default and (ii) if an Event of Default is cured or waived before any related notice of acceleration is delivered, such
Event of Default shall be deemed cured and the Notes shall not be subject to acceleration on account of such Event of Default.
Section 6.03.
Special
Interest
. Notwithstanding anything in this Indenture or in the Notes to the contrary, to the extent the Company 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) (such
Event of Default, a “
Reporting Event of Default
”) shall, for the first three hundred sixty-five (365) days after the
occurrence of such a Reporting Event of Default, consist exclusively of the right to receive Special Interest on the Notes at a rate
equal to (x) 0.25% per annum of the principal amount of the Notes outstanding for each day that such Reporting Event of Default
is continuing during the first one hundred eighty (180) days after the occurrence of such a Reporting Event of Default and (y) 0.50%
per annum of the principal amount of the Notes outstanding from the one hundred eighty-first (181st) day to, and including, the three
hundred sixty-fifth (365th) day following the occurrence of such Reporting Event of Default, as long as such Reporting Event of Default
is continuing. Subject to the last paragraph of this
Section 6.03, Special
Interest payable pursuant to this
Section 6.03 shall be in addition to, not
in lieu of, any Special Interest payable pursuant to
Section 4.06(d) or
Section 4.06(e). If the Company so elects, such Special Interest shall be
payable as set forth in
Section 2.03(b). On the three hundred sixty-sixth (366th)
day after a Reporting Event of Default (if such Reporting Event of Default is not cured or waived prior to such three hundred sixty-sixth
(366th) 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 in the event of the occurrence of any Event of Default other than
a Reporting Event of Default. In the event the Company does not elect to pay Special Interest following a Reporting Event of Default
in accordance with this
Section 6.03 or the Company elected to make such payment
but does not pay the Special Interest when due, the Notes shall be immediately subject to acceleration as provided in
Section 6.02
as a result of the Event of Default pursuant to
Section 6.01(f) if such
Event of Default is then continuing.
40
In order to elect to pay Special Interest as the
sole remedy during the first three hundred sixty-five (365) days after the occurrence of a Reporting Event of Default in accordance with
the immediately preceding paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent (if other than
the Trustee) in writing of such election prior to the beginning of such three hundred sixty-five (365)-day period. Upon the failure to
timely give such notice, the Notes shall be immediately subject to acceleration as provided in Section 6.02.
In no event shall Special Interest payable at
the Company’s election in respect of a Reporting Event of Default as set forth in this Section 6.03, together with
any Special Interest that may accrue as a result of the Company’s failure to timely file any document or report that the Company
is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (other than current
reports on Form 8-K and after giving effect to all applicable grace periods thereunder, including any grace period provided by Rule 12b-25
(or any successor rule), which grace period, for the avoidance of doubt, shall be deemed applicable whether or not the Company checks
the box in the relevant Rule 12b-25 filing indicating that the Company expects to file such report within the applicable Rule 12b-25
grace period), pursuant to Section 4.06(d), accrue at a rate in excess of 0.50% per annum pursuant to this Indenture,
regardless of the number of events or circumstances giving rise to the requirement to pay such Special Interest.
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 and be continuing, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of the Notes, the whole amount then due and payable on the Notes for principal and interest, if any, (with no interest accruing on any
overdue principal or Special Interest unless Special Interest was payable pursuant to this Indenture on the required payment date, in
which case such overdue amounts shall accrue interest per annum at the then-applicable Special Interest rate borne by the Notes, subject
to the enforceability thereof under applicable law, from, and including, such required payment date) 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.
41
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 under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative
expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees and expenses,
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, 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 party to any
such proceedings.
42
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 or property 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 or property, upon presentation of the several Notes, and stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First
,
to the payment of all amounts due the Trustee in all of its capacities under this Indenture, including its agents and counsel;
Second
,
in case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest, if any, 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 is payable on such Notes and has been collected by the Trustee) upon
such overdue payments at the rate of Special Interest, if any, then payable on such Notes at such time, such payments to be made ratably
to the Persons entitled thereto;
Third
,
in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the
whole amount (including, if applicable, the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash
due upon conversion) then owing and unpaid upon the Notes for principal and interest, if any, with interest (to the extent any Special
Interest is then payable on the Notes at such time) 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 of Special Interest borne by the Notes at such time, and in case such
monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal
(including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) and interest
without preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if applicable, the
Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion) and any accrued and unpaid interest; and
43
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 and the Fundamental
Change Repurchase Price) or interest, if any, 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 or the Notes 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 twenty-five percent (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 to the Trustee such security or indemnity satisfactory to it against any loss, claim, liability or expense
to be incurred therein or thereby;
(d)
the
Trustee for sixty (60) days after its receipt of such notice, request and offer of such security or indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; and
(e)
no
direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the
Holders of a majority of the aggregate principal amount of the Notes then outstanding within such sixty (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 whatsoever 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 (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions
or forbearances are unduly prejudicial to such Holder), or to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders (except as otherwise provided herein). For the protection and enforcement
of this
Section 6.06, 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 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.
44
Section 6.07.
Proceedings
by Trustee.
In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit
in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 6.08.
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.
Subject to the Trustee’s right to receive security or indemnity
from the relevant Holders as described herein, 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 and 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 shall not have an affirmative duty to ascertain whether or not any such
direction is unduly prejudicial to the rights of any other Holder) or that would involve the Trustee in personal liability. The Holders
of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance with
Section 8.04
may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences (including,
for the avoidance of doubt, any acceleration as a result of such Default or Event of Default) except any continuing defaults relating
to (i) a default in the payment of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price and
any Fundamental Change Repurchase Price) of, the Notes when due that has not been cured pursuant to the provisions of
Section 6.01,
(ii) a failure by the Company to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a
default in respect of a covenant or provision hereof which under
Article 10
cannot be modified or amended without the consent of each Holder of an outstanding Note affected. Upon any such waiver the Company, the
Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this
Section 6.09, 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.
45
Section 6.10.
Notice
of Defaults.
The Trustee shall, within ninety (90) days after a Responsible Officer obtains knowledge of the occurrence of a Default
that is then continuing, deliver to all Holders notice of all Defaults actually known to a Responsible Officer, unless such Defaults
shall have been cured or waived before the giving of such notice;
provided
that, except in the case of a Default in the payment
of the principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid
Special Interest, if any, on, any of the Notes or a Default in the payment or delivery of the consideration due upon conversion, the
Trustee shall be protected in withholding such notice if and so long as it 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 ten percent (10%) in principal amount of the Notes at the time outstanding determined
in accordance with
Section 8.04, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to,
the Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed or provided for in
such Note or to any suit for the enforcement of the right to convert any Note, or receive the consideration due upon conversion, in accordance
with the provisions of
Article 14.
46
Article 7
Concerning the Trustee
Section 7.01.
Duties
and Responsibilities of Trustee.
The Trustee, prior to the occurrence of an Event of Default of which a Responsible Officer of the
Trustee has written notice or actual knowledge 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 or security satisfactory to it against any loss, claim, 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 of which a Responsible Officer of the Trustee has written notice or actual knowledge 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 gross negligence or willful misconduct on the part of the Trustee, the Trustee may, as to the truth of the statements
and the correctness of the opinions expressed therein, conclusively rely upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein);
(b)
the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless
it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c)
the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of not less than a majority of the aggregate principal amount of the Notes at the time outstanding determined as provided
in
Section 8.04 relating to the time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
47
(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)
the
Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture;
(h)
in
the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing
trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon
or for losses, fees, taxes or other charges incurred as a result of the liquidation of any such investment prior to its maturity date
or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment
to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder
in the absence of such written investment direction from the Company; and
(i)
in
the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation 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, Bid Solicitation Agent or transfer agent.
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. Prior to taking any action under this Indenture, the Trustee shall be entitled
to indemnification or security satisfactory to it against any loss, liability or expense caused by taking or not taking such action.
48
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 or refraining from 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)
whenever
in the administration of this Indenture, the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence
of gross negligence or willful misconduct on its part, conclusively rely upon an Officer’s Certificate;
(d)
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
accordance with such advice or Opinion of Counsel;
(e)
the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or
by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;
(f)
the
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, 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;
(g)
the
permissive rights of the Trustee enumerated herein shall not be construed as duties;
(h)
the
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of the individuals and/or titles
of officers authorized at such times 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;
49
(i)
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 its directors, members, officers, agents, affiliates, or employees, nor shall they have
any liability in connection with the malfeasance or nonfeasance by such parties. 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;
(j)
the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder; and
(k)
the
Trustee shall not be obligated to take possession of any Common Stock, whether upon conversion 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.
In no event shall the Trustee be liable for any
special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even
if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. 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 from the Company or from any Holder.
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, the Offering Memorandum or of the Notes. The Trustee shall
not be accountable for the use or application by the Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
Section 7.04.
Trustee,
Paying Agents, Conversion Agents, 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.
50
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 receive such
compensation for all services rendered by it hereunder in any capacity (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) as previously and 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 determined
by a final order of a court of competent jurisdiction. The Company also covenants to indemnify the Trustee or any predecessor Trustee
in any capacity under this Indenture and any other document or transaction entered into in connection herewith and its agents and any
authenticating agent for, and to hold them harmless against, any loss, claim, damage, liability or expense incurred without gross negligence
or willful misconduct on the part of the Trustee, its officers, directors, agents or employees, or such agent or authenticating agent,
as the case may be, as determined by a final order of a court of competent jurisdiction, and arising out of or in connection with the
acceptance or administration of this Indenture or in any other capacity hereunder and the enforcement of this Indenture (including this
Section 7.06), including the costs and expenses of defending themselves against
any claim of liability in the premises. The obligations of the Company under this
Section 7.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall be secured
by a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by the Trustee, except, subject
to the effect of
Section 6.05, funds held in trust herewith for the benefit
of the Holders of particular Notes, and, for the avoidance of doubt, such lien shall not be extended in a manner that would conflict
with the Company’s obligations to its other creditors. The Trustee’s right to receive payment of any amounts due under this
Section 7.06 shall not be subordinate to any other liability or indebtedness
of the Company. The obligation of the Company under this
Section 7.06 shall
survive the satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee. The Company need not
pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The indemnification provided in this
Section 7.06 shall extend to the officers, directors, agents and employees
of the Trustee.
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.
51
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 fifty million
dollars ($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 7.08,
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 promptly 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 forty-five (45) days
after the giving of such notice of resignation to the Holders, the resigning Trustee may, upon ten (10) Business Days’ notice
to the Company and the Holders, petition any court of competent jurisdiction, at the expense of the Company, 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 (6) 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.
52
(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 (6) 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 (10) days after notice to the Company of such nomination the Company objects thereto, in which case the Trustee so removed or
any Holder, upon the terms and conditions and otherwise as in
Section 7.09(a) provided, may petition any court
of competent jurisdiction for an appointment of a successor trustee.
(d)
Any
resignation or removal of the Trustee and appointment of a successor trustee pursuant to any of the provisions of this
Section 7.09
shall become effective upon acceptance of appointment by the successor trustee as provided in
Section 7.10.
Section 7.10.
Acceptance
by Successor Trustee.
Any successor trustee appointed as provided in
Section 7.09
shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, duties and obligations of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the rights and powers of the trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain
a senior lien to which the Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except
for funds held in trust for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions
of
Section 7.06.
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No successor trustee shall accept appointment
as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be eligible under
the provisions of Section 7.08.
Upon acceptance of appointment by a successor
trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the written direction and
at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder to the Holders.
If the Company fails to deliver such notice within ten (10) 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 organization or other entity into which the Trustee may be merged or converted or with which it may be consolidated,
or any organization or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or
any organization 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 organization or other entity succeeding
to all or substantially all of the corporate trust business of the Trustee such organization 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 (3) Business Days after notice to the
Company has been deemed to be given pursuant to
Section 17.03, 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.
54
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 (15) 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 or writing by a
Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or
by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in
Section 9.06.
Section 8.03.
Who
Are Deemed Absolute Owners.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any Note
Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal
(including any Redemption Price and any Fundamental Change Repurchase Price) of and (subject to
Section 2.03)
accrued and unpaid interest, if any, on such Note, for conversion of such Note and for all other purposes under this Indenture; 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, 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 (x) such holder’s right to convert a Note in which it holds such beneficial interest on account of a Deemed
Redemption pursuant to
Section 14.01(b)(v), and (y) such holder’s
right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture following
an Event of Default.
55
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 actually 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.
56
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 twenty (20) nor more than ninety (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 ten
percent (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 twenty (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.
57
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 outstanding 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.
58
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 9.07.
No
Delay of Rights by Meeting.
Nothing contained in this
Article 9 shall
be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee
or to the Holders under any of the provisions of this Indenture or of the Notes.
Article 10
Supplemental Indentures
Section 10.01.
Supplemental
Indentures Without Consent of Holders.
The Company and the Trustee, at the Company’s expense, may from time to time and at
any time 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 Entity of the obligations of the Company under this Indenture 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 as determined by the Company in good faith as certified by the
Company in an Officer’s Certificate;
(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 as
evidenced in an Officer’s Certificate;
59
(i)
to
comply with the rules of any applicable Depositary, including The Depository Trust Company, so long as such amendment does not adversely
affect the rights of any Holder in any material respect;
(j)
to
appoint a successor trustee with respect to the Notes;
(k)
to
increase the Conversion Rate as provided in this Indenture;
(l)
to
provide for the acceptance of appointment by a successor Trustee, Note Registrar, Paying Agent, Bid Solicitation Agent or Conversion
Agent to facilitate the administration of the trusts under this Indenture by more than one trustee; or
(m)
to
irrevocably elect a Settlement Method or a Specified Dollar Amount, or eliminate the Company’s right to elect a Settlement Method
(including at the Company’s option upon an Irrevocable Election);
provided
,
however
, that no such election or elimination
shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to the provisions
of
Article 14.
Upon the written request of the Company, the Trustee
is hereby authorized to join with the Company in the execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter
into any supplemental indenture that affects the Trustee’s own rights, duties 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, the Notes), the Company 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, the Notes or any supplemental indenture or of modifying
in any manner the rights of the Holders;
provided
,
however
, that, without the consent of each Holder of an outstanding
Note affected, no such supplemental indenture shall:
(a)
reduce
the principal amount of Notes whose Holders must consent to an amendment;
(b)
reduce
the rate of or extend the stated time for payment of any interest on any Note;
60
(c)
reduce
the principal amount of or extend the Maturity Date of any Note;
(d)
except
as required by this Indenture, make any change that adversely affects the conversion rights of any Notes;
(e)
reduce
the Redemption Price or the Fundamental Change Repurchase Price of any Note or 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; or
(h)
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 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 deliver 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, duties, indemnities, privileges 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 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 Company, 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 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.
61
Section 10.05.
Evidence
of Compliance of Supplemental Indenture To Be Furnished to 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 (such Opinion of Counsel to include a customary legal opinion stating that such supplemental
indenture is the valid and binding obligation of the Company, 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 the consolidated
properties and assets of the Company and its Subsidiaries, taken as a whole, 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) (each, a “
Business Combination
Event
”), unless:
(a)
the
resulting, surviving or transferee Person (the “
Successor Entity
”), if not the Company, shall be a Qualified Successor
Entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, and the
Successor Entity (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 Business Combination Event, 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 consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, shall be deemed to be the sale,
conveyance, transfer or lease of all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries,
taken as a whole, to another Person.
62
Section 11.02.
Successor
Entity To Be Substituted.
In case of any such Business Combination Event and upon the assumption by the Successor Entity (if not
the Company), by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and accrued and unpaid interest, if any, 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 Entity (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, and may thereafter exercise every right and power
of the Company under this Indenture. Such Successor Entity thereupon may cause to be signed, and may issue either in its own name or
in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such Successor Entity 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 Entity 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 Business Combination Event (other than a lease of all or substantially all of the consolidated properties and assets of
the Company and its Subsidiaries to another Person), 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 Business Combination Event, such changes
in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
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, if any, 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 entity, either directly or through the Company or any successor entity, 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.
63
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 July 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 July 1, 2031 and prior to the close of business on the second (2nd) Scheduled Trading Day immediately preceding the
Maturity Date, in each case, at an initial conversion rate of 32.0379 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
”). The
Trustee shall have no obligation to make any determination as to whether any of the conditions described in
Section 14.01(b) have
been satisfied.
(b)
(i)
Prior
to the close of business on the Business Day immediately preceding July 1, 2031, a Holder may surrender all or any portion of its
Notes for conversion at any time during the five (5) Business Day period immediately after any ten (10) 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 ninety-eight percent (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 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 or Holders of at least five million dollars ($5,000,000) (or such lesser amount
as may be outstanding) aggregate principal amount of Notes 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 ninety-eight percent (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 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 ninety-eight percent (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, when the Company is required to, 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 gives such instruction to the Bid Solicitation
Agent 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 on any date shall be deemed to be less than ninety-eight percent (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 the Holders, the Trustee and the Conversion Agent (if other than the Trustee)
in writing. Any such determination shall be conclusive absent manifest error. 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 ninety-eight percent (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 the
Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing and thereafter neither the Company nor the Bid Solicitation
Agent (if other than the Company) shall be required to solicit bids (or determine the Trading Price of the Notes as set forth in this
Indenture) again unless a new Holder request is made as provided in this subsection
(b)
(i).
64
(ii)
If,
prior to the close of business on the Business Day immediately preceding July 1, 2031, the Company elects to:
(A)
distribute
to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a stockholder
rights plan prior to the separation of such rights from the Common Stock) entitling them, for a period of not more than sixty (60) calendar
days after the announcement date of such distribution, 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 ten (10) consecutive Trading Day period ending
on, and including, the Trading Day immediately preceding the date of announcement of such distribution; or
65
(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 in connection with a stockholder rights plan prior to separation of such rights from the Common Stock), which distribution
has a per share value, as reasonably determined by the Company in good faith, exceeding ten percent (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
all Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee) in writing at least thirty-eight (38) Scheduled
Trading Days prior to the Ex-Dividend Date for such distribution (or, if later in the case of any such separation of rights issued pursuant
to a stockholder rights plan, as soon as reasonably practicable after the Company becomes aware that such separation or triggering event
has occurred or will occur);
provided
that if the Company is then otherwise permitted to settle conversions of Notes by Physical
Settlement (and, for the avoidance of doubt, has not irrevocably elected another Settlement Method for conversions of Notes), then the
Company may instead elect to provide such notice at least ten (10) Scheduled Trading Days prior to such Ex-Dividend Date, in which
case the Company shall be required to settle all conversions of Notes with a Conversion Date occurring during the period on or after
the date the Company provides such notice and before such Ex-Dividend Date (or, if earlier, the date the Company announces that such
issuance or distribution will not take place) 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 distribution and (2) the
Company’s announcement that such distribution will not take place, in each case, even if the Notes are not otherwise convertible
at such time;
provided
that Holders may not convert their Notes pursuant to this subsection (b)(ii) if they participate,
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 clause (A) or (B) of this subsection (b)(ii) 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.
(iii)
If
(A) 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 July 1, 2031, regardless of whether a Holder has the right to require the Company
to repurchase the Notes pursuant to
Section 15.02, or (B) 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 (x) does not constitute a Fundamental Change or a Make-Whole Fundamental Change and (y) results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares of common stock of the surviving entity and such common
stock becomes Reference Property for the Notes) that occurs prior to the close of business on the Business Day immediately preceding
July 1, 2031, (each such Fundamental Change, Make-Whole Fundamental Change or Share Exchange Event, a “
Corporate Event
”),
all or any portion of a Holder’s Notes may be surrendered for conversion at any time from and after the effective date of such
Corporate Event to, and including, the earlier of (x) the close of business on the thirty-fifth (35th) Trading Day after the effective
date of such Corporate Event (or, if the Company gives notice after the effective date of such Corporate Event, until the close of business
on the thirty-fifth (35th) Trading Day after the date the Company gives notice of such Corporate Event) or, if such Corporate Event also
constitutes a Fundamental Change (other than an Exempted Fundamental Change), until the close of business on the Business Day immediately
preceding the related Fundamental Change Repurchase Date and (y) the close of business on the second (2nd) Scheduled Trading Day
immediately preceding the Maturity Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee)
in writing as promptly as practicable following the effective date of such Corporate Event, but in no event later than two (2) Business
Days after the effective date of such Corporate Event.
66
(iv)
Prior
to the close of business on the Business Day immediately preceding July 1, 2031, a Holder may surrender all or any portion of its
Notes for conversion at any time during any fiscal quarter of the Company commencing after the Company’s fiscal quarter ending
on January 31, 2027 (and only during such fiscal quarter), if the Last Reported Sale Price of the Common Stock for at least twenty
(20) Trading Days (whether or not consecutive) during the period of thirty (30) consecutive Trading Days ending on, and including, the
last Trading Day of the immediately preceding fiscal quarter is greater than or equal to one hundred fifty percent (150%) of the Conversion
Price on each applicable Trading Day.
(v)
If
the Company calls any Notes for Redemption pursuant to
Article 16, then a Holder may surrender all or any
portion of its Called Notes for conversion at any time prior to the close of business on the second (2nd) Scheduled Trading Day immediately
preceding the applicable Redemption Date, even if the Called Notes are not otherwise convertible at such time. After that time, the right
to convert such Called Notes on account of the Company’s delivery of a Notice of Redemption shall expire, unless the Company defaults
in the payment of the Redemption Price, in which case a Holder of Called Notes may convert all or a portion of its Called Notes until
the close of business on the Scheduled Trading Day immediately preceding the date on which the Redemption Price has been paid or duly
provided for. If the Company elects to redeem fewer than all of the outstanding Notes in an Optional Redemption pursuant to
Article 16,
and the Holder of any Note (or any owner of a beneficial interest in any Global Note) is reasonably not able to determine, prior to the
close of business on the thirty-fourth (34th) Scheduled Trading Day immediately preceding the relevant Redemption Date (or if, as permitted
by
Section 16.02(a), the Company delivers a Notice of Redemption not less than ten (10) nor more
than sixty (60) calendar days prior to the related Redemption Date, then prior to close of business on the ninth (9th) calendar day immediately
before the relevant Redemption Date), whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional
Redemption (and, as a result thereof, convertible on account of the related Notice of Optional Redemption in accordance with the provisions
of this Indenture), then such Holder or owner, as applicable, shall be entitled to convert such Note or beneficial interest, as applicable,
at any time during the related Redemption Period, and each such conversion shall be deemed to be of a Note called for Optional Redemption,
and such Note or beneficial interest shall be deemed called for Optional Redemption solely for the purposes of such conversion (“
Deemed
Redemption
”). If a Holder elects to convert Called Notes during the related Redemption Period, such conversion will be deemed
“in connection with” the relevant Notice of Redemption pursuant to
Section 14.03(a), and the
Company shall, under certain circumstances, increase the Conversion Rate for such Called Notes pursuant to
Section 14.03.
Accordingly, if the Company elects to redeem fewer than all of the outstanding Notes in an Optional Redemption pursuant to
Article 16,
Holders of the Notes that are not Called Notes will not be entitled to convert such Notes pursuant to this
Section 14.01(b)(v) and
will not be entitled to an increase in the Conversion Rate on account of the Notice of Optional Redemption for conversions of such Notes
during the related Redemption Period, even if such Notes are otherwise convertible pursuant to any other provision of this
Section 14.01(b).
67
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 satisfy its Conversion Obligation by paying or delivering, as the case may be, to the converting
Holder, in respect of each $1,000 principal amount of Notes being converted, solely cash (“
Cash Settlement
”), solely
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 of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and all conversions for
which the relevant Conversion Date occurs on or after July 1, 2031, shall be settled using the same Settlement Method (including
the same Specified Dollar Amount, if applicable).
(ii)
Except
for any conversions of Called Notes for which the relevant Conversion Date occurs during the related Redemption Period, and any conversions
for which the relevant Conversion Date occurs on or after July 1, 2031, and except to the extent the Company has irrevocably elected
Physical Settlement pursuant to
Section 14.01(b)(ii) in a notice as described in such Section or
has previously made an Irrevocable Election with respect to all subsequent conversions of the Notes pursuant to the second paragraph
of
Section 14.02(a)(iii), the Company shall use the same Settlement Method (including the same Specified Dollar
Amount, if applicable) for all conversions with the same Conversion Date, but the Company shall not have any obligation to use the same
Settlement Method (or the same Specified Dollar Amount) with respect to conversions with different Conversion Dates.
68
(iii)
If,
in respect of any Conversion Date (or any conversions of Called Notes for which the relevant Conversion Date occurs during the related
Redemption Period or any conversions for which the relevant Conversion Date occurs on or after July 1, 2031 or for which the Company
has irrevocably elected Physical Settlement pursuant to
Section 14.01(b)(ii) in a notice as described in
such Section), the Company elects to deliver a notice (the “
Settlement Notice
”) of the relevant Settlement Method
in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice to converting
Holders, the Trustee and the Conversion Agent (if other than the Trustee) no later than the close of business on the Trading Day immediately
following the relevant Conversion Date (or, in the case of (A) any conversions of Called Notes for which the relevant Conversion
Date occurs during the related Redemption Period, in the related Notice of Redemption, (B) any conversions of Notes for which the
relevant Conversion Date occurs on or after July 1, 2031, no later than July 1, 2031 or (C) any conversions of Notes for
which the Company has irrevocably elected Physical Settlement pursuant to
Section 14.01(b)(ii), in a notice
as described in such Section or for which the Company has previously made an Irrevocable Election with respect to all subsequent
conversions of Notes, as described in the next succeeding paragraph). If the Company does not elect a Settlement Method prior to the
deadline set forth in the immediately preceding sentence by delivering a Settlement Notice to the relevant Holders, the Company shall
no longer have the right to elect a Settlement Method with respect to any conversion on such Conversion Date or during such period, and
the Company shall be deemed to have elected the Default Settlement Method with respect to such conversion. Such Settlement Notice shall
specify the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall
indicate the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination
Settlement (or is deemed to have elected Combination Settlement) in respect of its Conversion Obligation but does not indicate a Specified
Dollar Amount per $1,000 principal amount of Notes to be converted in such Settlement Notice, the Specified Dollar Amount per $1,000
principal amount of Notes shall be deemed to be $1,000. For the avoidance of doubt, the Company’s failure to timely elect a Settlement
Method or specify, as applicable, a Specified Dollar Amount shall not constitute a Default under this Indenture.
69
By written notice to Holders, the Trustee
and the Conversion Agent (if other than the Trustee), the Company may, from time to time, change the Default Settlement Method prior
to July 1, 2031. In addition, by written notice to all Holders, the Company may, prior to July 1, 2031, at its option, irrevocably
elect to satisfy its Conversion Obligation with respect to the Notes through any Settlement Method that the Company is then permitted
to elect, including Combination Settlement with a Specified Dollar Amount per $1,000 principal amount of Notes of $1,000 or with an ability
to continue to set the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount set forth in such election
notice (any such election, an “
Irrevocable Election
”). If the Company changes the Default Settlement Method or the
Company irrevocably elects to fix the Settlement Method, in either case, to Combination Settlement with an ability to continue to set
the Specified Dollar Amount per $1,000 principal amount of Notes at or above a specific amount, the Company shall, after the date of
such change or election, as the case may be, inform Holders converting their Notes, the Trustee and the Conversion Agent (if other than
the Trustee) in writing of such Specified Dollar Amount no later than the relevant deadline for election of a specified Settlement Method
as set forth in the immediately preceding paragraph, or, if the Company does not timely notify Holders, such Specified Dollar Amount
shall be the specific amount set forth in the election notice or, if no specific amount was set forth in the election notice, such Specified
Dollar Amount shall be $1,000 per $1,000 principal amount of Notes. A change in the Default Settlement Method or an Irrevocable Election
shall apply for all conversions of Notes with Conversion Dates occurring subsequent to delivery of such notice;
provided
that
no such change or election will affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note.
For the avoidance of doubt, such an Irrevocable Election, if made by the Company, will be effective without the need to amend this Indenture
or the Notes, including pursuant to
Section 10.01(m). However, the Company may nonetheless choose to
execute such an amendment at its option. If the Company changes the Default Settlement Method or if the Company irrevocably fixes the
Settlement Method pursuant to this paragraph, then, concurrently with providing written notice to Holders, the Trustee and the Conversion
Agent (if other than the Trustee) of such change or election, the Company shall either post the Default Settlement Method or fixed Settlement
Method, as the case may be, on its website or disclose the same in a current report on Form 8-K (or any successor form) that is
filed with the Commission.
(iv)
The
cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “
Settlement
Amount
”) shall be computed as follows:
(A)
if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement,
the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares
of Common Stock equal to the Conversion Rate in effect on the Conversion Date;
70
(B)
if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement,
the Company shall pay to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount
equal to the sum of the Daily Conversion Values for each of the thirty (30) 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, to the converting Holder 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 thirty (30) consecutive Trading Days
during the related Observation Period.
(v)
The
Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly
following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts (if applicable) and
the Daily Conversion Values (if applicable) 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 (if applicable)
and the Daily Conversion Values (if applicable) and the amount of cash payable in lieu of delivering any 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 applicable procedures of the Depositary in effect at that time and, if required,
pay funds equal to any Special Interest payable on the next Special Interest Payment Date to which such Holder is not entitled as set
forth in
Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and
deliver an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile, PDF or other
electronic transmission thereof) (a notice pursuant to the applicable procedures of the Depositary or a notice as set forth in the Form of
Notice of Conversion, a “
Notice of Conversion
”) at the office of the Conversion Agent and state in writing therein
the principal amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates
for any shares of Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such
Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of
the Conversion Agent, (3) if required, furnish appropriate endorsements and transfer documents, (4) if required, pay funds
equal to any Special Interest payable on the next Special 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, pursuant to Section 14.02(e).
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 Notes may be surrendered for conversion by a Holder thereof if such Holder has also delivered
a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such Fundamental Change
Repurchase Notice in accordance with
Section 15.03.
71
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 (2nd) Business Day immediately following the relevant Conversion Date, if the Company elects Physical Settlement
(
provided
that, with respect to any Conversion Date following September 15, 2031 where Physical Settlement applies to the
related conversion, the Company shall settle any such conversion on the Maturity Date), or on the second (2nd) 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 the Trustee shall authenticate and deliver to
or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note, without payment of any service charge by the converting Holder but,
if required by the Company or Trustee, with payment of a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax or similar governmental charge required by law or that may be imposed in connection therewith as a result of the name of the Holder
of the new Notes issued upon such conversion being different from the name of the Holder of the old Notes surrendered for such conversion.
(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.
72
(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 Special 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 Special Interest, if any, to, but not including, the relevant Conversion Date. As
a result, accrued and unpaid Special 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 Special Interest, if any, shall 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 Special Interest Record Date for the payment of Special Interest
and prior to the open of business on the corresponding Special Interest Payment Date, Holders of such Notes as of the close of business
on such Special Interest Record Date will receive the full amount of Special Interest, if any, payable on such Notes on the corresponding
Special Interest Payment Date notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business
on any Special Interest Record Date to the open of business on the immediately following Special Interest Payment Date must be accompanied
by funds equal to the amount of Special Interest payable on the Notes so converted;
provided
that no such payment shall be required
(1) for conversions following the close of business on September 15, 2031; (2) for conversions of Called Notes, if the
Company has specified a Redemption Date that is after a Special Interest Record Date and on or prior to the second (2nd) Scheduled Trading
Day immediately following the corresponding Special Interest Payment Date; (3) if the Company has specified a Fundamental Change
Repurchase Date that is after a Special Interest Record Date and on or prior to the Business Day immediately following the corresponding
Special Interest Payment Date; or (4) to the extent of any overdue interest, if any overdue interest exists at the time of conversion
with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on September 15, 2031, any Redemption Date
for a Redemption as described in clause (2) in the immediately preceding sentence or any Fundamental Change Repurchase Date described
in clause (3) in the immediately preceding sentence shall receive the full Special Interest payment, if any, due on the Maturity
Date or other applicable Special Interest Payment Date (if and to the extent Special Interest is payable on the Maturity Date or such
other applicable Special Interest Payment Date) in cash regardless of whether their Notes have been converted following such Special
Interest Record Date.
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(i)
The
Person in whose name any shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record of such
shares of Common Stock as of the close of business on the relevant Conversion Date (in the case of Physical Settlement) or the last Trading
Day of the relevant Observation Period (in the case of 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 (or, if such Conversion
Date is not a Trading Day, the immediately preceding Trading Day), 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 (or is deemed to have 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 Notice of Redemption
.
(a)
If
(i) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date and a Holder elects to convert its Notes
in connection with such Make-Whole Fundamental Change or (ii) the Company delivers a Notice of Redemption as provided under
Section 16.02
and a Holder elects to convert its Called Notes in connection with such Notice of Redemption, as the case may be, the Company shall,
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” a Make-Whole Fundamental Change if the relevant Conversion Date occurs during the period
from, and including, the Effective Date of the Make-Whole Fundamental Change up to, and including, the close of business on the Business
Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of an Exempted Fundamental Change or a Make-Whole
Fundamental Change that would have been a Fundamental Change but for the
proviso
in clause (b) of the definition thereof,
the thirty-fifth (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 Notice of Redemption if such Notes are Called Notes with respect to such Notice of Redemption and the relevant
Conversion Date occurs during the related Redemption Period. For the avoidance of doubt, if the Company elects to redeem fewer than all
of the outstanding Notes in an Optional Redemption pursuant to
Article 16, Holders of the Notes that are not
Called Notes will not be entitled to convert such Notes pursuant to
Section 14.01(b)(v) and will not
be entitled to an increase in the Conversion Rate for conversions of such Notes (on account of the Notice of Optional Redemption) during
the applicable Redemption Period, even if such Notes are otherwise convertible pursuant to
Section 14.01(b)(i)-
(iv).
74
(b)
Upon
surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or a Notice of Redemption, the Company shall pay
or deliver, as the case may be, the Settlement Amount due in respect of such Notes in accordance with
Section 14.02
based on the Conversion Rate as increased to reflect the Additional Shares in accordance with this
Section 14.03;
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 increase to reflect the Additional Shares),
multiplied by
such Stock Price.
In such event, the Conversion Obligation shall be determined and paid to Holders in cash on the fifth (5th) Business Day following the
Conversion Date. The Company shall notify the Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of
the Effective Date of any Make-Whole Fundamental Change no later than five (5) Business Days after such Effective Date.
(c)
The
number of Additional Shares, if any, by which the Conversion Rate shall be increased for conversions in connection with a Make-Whole
Fundamental Change or a Notice of Redemption 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 the Company delivers the Notice of Redemption, as the case may be (in each
case, the “
Effective Date
”), and the price (the “
Stock 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 Notice of Redemption, as the case may
be. 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 consecutive Trading Day period ending on,
and including, the Trading Day immediately preceding the applicable Effective Date. If a conversion of Called Notes during a Redemption
Period would also be deemed to be in connection with a Make-Whole Fundamental Change, a Holder of any such Notes to be converted shall
be entitled to a single increase to the Conversion Rate with respect to the first to occur of the Effective Date of the Notice of Redemption
or the Make-Whole Fundamental Change, as applicable, and the later event shall be deemed not to have occurred for purposes of such conversion
for purposes of this
Section 14.03.
(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 of the
Notes 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.
75
(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
$
24.01
$
28.00
$
31.21
$
35.00
$
40.58
$
50.00
$
75.00
$
100.00
$
125.00
October 16, 2026
9.6114
6.9625
5.4675
4.1751
2.8736
1.5938
0.3540
0.0553
0.0000
October 1, 2027
9.6114
6.9625
5.4652
4.1046
2.7555
1.4632
0.2815
0.0309
0.0000
October 1, 2028
9.6114
6.9625
5.3496
3.9157
2.5276
1.2512
0.1875
0.0084
0.0000
October 1, 2029
9.6114
6.7907
4.9622
3.4671
2.0816
0.9022
0.0780
0.0000
0.0000
October 1, 2030
9.6114
6.0029
4.0167
2.5040
1.2553
0.3890
0.0025
0.0000
0.0000
October 1, 2031
9.6114
3.6764
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 by which the Conversion Rate shall be increased 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 or 366-day year, as applicable;
(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) of this
Section 14.03), no
Additional Shares shall be added to the Conversion Rate; and
(iii)
if
the Stock Price is less than $24.01 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) of this
Section 14.03), 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 41.6493 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 that would otherwise be required pursuant
to
Section 14.04 in respect of a Make-Whole Fundamental Change.
76
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 occur,
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 in respect of the Common Stock, the Conversion Rate shall be adjusted based on the following
formula:
where,
CR
0
=
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or
immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
CR’
=
the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
OS
0
=
the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective
Date (before giving effect to any such dividend, distribution, split or combination); and
OS’
=
the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share
combination.
Any adjustment made under this Section 14.04(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.
77
(b)
If
the Company distributes to all or substantially all holders of the Common Stock any rights, options or warrants (other than pursuant
to a stockholder rights plan) entitling them, for a period of not more than sixty (60) calendar days after the announcement date of such
distribution, 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 ten (10) consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of such distribution, the Conversion Rate shall be increased based on the following formula:
where,
CR
0
=
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR’
=
the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS
0
=
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 distributable 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 distribution 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 distributed and shall become effective immediately after the open
of business on the Ex-Dividend Date for such distribution. 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 distribution 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 distributed, the Conversion Rate
shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such distribution 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 Common Stock to subscribe for or purchase shares of the Common Stock at a price per share that is less than such average of the Last
Reported Sale Prices of the Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day
immediately preceding the date of announcement of such distribution, and in determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any
amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company
in good faith.
78
(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 (including share splits) as to which an adjustment was effected (or would have been effected
disregarding the 1% Exception) pursuant to
Section 14.04(a) or
Section 14.04(b), (ii) except
as otherwise provided in
Section 14.11, rights issued pursuant to any stockholder rights plan of the Company then
in effect, (iii) dividends or distributions of Reference Property issued in exchange for, or upon conversion of, Common Stock in
a Share Exchange Event, including, for the avoidance of doubt, any ability of holders of the Common Stock to make an election with respect
to the consideration they will receive in any such transaction, (iv) dividends or distributions paid exclusively in cash as to which
the provisions set forth in
Section 14.04(d) shall apply, 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:
where,
CR
0
=
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
CR’
=
the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
SP0
=
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
FMV
=
the fair market value (as determined by the Company in good faith) 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 “SP
0
”
(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, without having to
convert its Notes, 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.
79
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:
where,
CR
0
=
the Conversion Rate in effect immediately prior to the end of the Valuation Period;
CR’
=
the Conversion Rate in effect immediately after the end of the Valuation Period;
FMV
0
=
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
MP
0
=
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, the reference 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 the relevant conversion and within the Valuation Period, the
reference 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 of such Observation Period. 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, effective 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.
80
For purposes of this Section 14.04(c) (and
subject in all respects 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 as if such rights, options and warrants
had not been issued.
81
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
the Company makes any cash dividend or distribution to all or substantially all holders of the Common Stock, the Conversion Rate shall
be adjusted based on the following formula:
where,
CR
0
=
the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
CR’
=
the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
SP
0
=
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.
82
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 “SP
0
”
(as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, for each $1,000 principal amount of Notes
it holds, at the same time and upon the same terms as holders of shares of the Common Stock, without having to convert its Notes, the
amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the 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 any odd-lot tender offer), to the extent that the cash
and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale
Prices of the Common Stock over the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day next succeeding
the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased
based on the following formula:
where,
CR
0
=
the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including,
the Trading Day next succeeding the date such tender or exchange offer expires;
CR’
=
the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including,
the Trading Day next succeeding the date such tender or exchange offer expires;
AC
=
the aggregate value of all cash and any other consideration (as determined by the Company in good faith) paid or payable for shares
of Common Stock purchased in such tender or exchange offer;
OS
0
=
the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving
effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
OS’
=
the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect
to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
SP’
=
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including,
the Trading Day next succeeding the date such tender or exchange offer expires.
83
The increase to the Conversion Rate under this
Section 14.04(e) shall occur at the close of business on the tenth (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 ten (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 the relevant conversion
and within the ten (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 of such Observation
Period.
If the Company or one of its Subsidiaries is obligated
to purchase shares of Common Stock pursuant to any such tender or exchange offer described in this Section 14.04(e) but
the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchase or all such purchases are
rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made or had been made only in respect of the purchases that have been made.
(f)
Notwithstanding
this
Section 14.04 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.
84
(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 subject to applicable exchange listing rules, the Company
from time to time may increase the Conversion Rate by any amount for a period of at least twenty (20) Business Days if the Company determines
that such increase would be in the Company’s best interest. In addition, subject to applicable exchange listing rules, 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 shares of 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.
(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 at a price below the Conversion Price or otherwise, other than any such issuance described
in clause
(a),
(b) or
(c) of this
Section 14.04;
(ii)
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;
(iii)
upon
the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee,
director or consultant benefit or incentive plan or program (including pursuant to any evergreen plan) of or assumed by the Company or
any of the Company’s Subsidiaries or in connection with any such shares withheld by the Company for tax withholding purposes;
(iv)
upon
the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible security
not described in clause
(iii) of this subsection and outstanding as of the date the Notes were first issued;
(v)
for
a third-party tender offer by any party other than a tender offer by one or more of the Company’s Subsidiaries as described in
clause
(e) of this
Section 14.04;
(vi)
upon
the repurchase of any shares of Common Stock pursuant to an open market share purchase program or other buy-back transaction, including
structured or derivative transactions such as accelerated share repurchase transactions or similar forward derivatives, or other buy-back
transaction, that is not a tender offer or exchange offer of the kind described under clause
(e) of this
Section 14.04;
85
(vii)
solely
for a change in the par value (or lack of par value) of the Common Stock; or
(viii)
for
accrued and unpaid interest, if any.
(j)
All
calculations and other determinations under this
Article 14 shall be made by the Company and shall be made to the
nearest one-ten thousandth (1/10,000th) of a share.
(k)
If
an adjustment to the Conversion Rate otherwise required by this
Section 14.04 would result in a change of less
than one percent (1%) to the Conversion Rate, then, notwithstanding the foregoing, the Company may, at its election, defer and carry
forward such adjustment, except that all such deferred adjustments must be given effect immediately upon the earliest to occur of the
following: (i) when all such deferred adjustments would result in an aggregate change of at least one percent (1%) to the Conversion
Rate, (ii) on the Conversion Date for any Notes (in the case of Physical Settlement), (iii) on each Trading Day of any Observation
Period related to any conversion of Notes (in the case of Cash Settlement or Combination Settlement), (iv) July 1, 2031, (v) on
any date on which the Company delivers a Notice of Redemption and (vi) on the effective date of any Fundamental Change and/or Make-Whole
Fundamental Change, in each case, unless the adjustment has already been made. The provisions described in the preceding sentence are
referred to as the “
1% Exception
.”
(l)
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.
(m)
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.
86
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 Notice of Redemption),
the Company shall, in good faith, make appropriate adjustments (without duplication in respect of any adjustment made pursuant to
Section 14.04)
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 at all times reserve, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, a number of shares of Common Stock equal to the product of (a) the number of outstanding Notes and (b) the
Conversion Rate (assuming the Conversion Rate has been increased by the maximum number of Additional Shares pursuant to
Section 14.03),
or such lesser number of shares of Common Stock sufficient, to provide for conversion of the Notes from time to time as such Notes are
presented for conversion.
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 a change to par value, or from par value to no par value,
or 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 acquiring 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 or the successor or acquiring Person, as the case may be, shall continue
to have the right to elect the form of consideration to be paid or delivered, as the case may be, upon conversion of the Notes in accordance
with Section 14.02; (B) the amount payable in cash upon conversion of Notes in accordance with Section 14.02
shall continue to be payable in cash; (C) 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 received in such Share Exchange Event; and (D) the Daily VWAP
shall be calculated based on the value of a unit of Reference Property that a holder of one share of Common Stock would have received
in such Share Exchange Event.
87
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. The Company shall notify Holders, the Trustee and the Conversion Agent (if other
than the Trustee) in writing of such weighted average as soon as reasonably practicable after such determination is made. 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 fifth (5th)
Business Day immediately following the relevant Conversion Date.
If the Reference Property in respect of any such
Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other Common Equity interests)
in respect thereof, 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
with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other Common
Equity interests) in respect thereof. If, in the case of any Share Exchange Event, the Reference Property includes shares of stock, securities
or other property or assets (including any combination thereof), other than cash and/or cash equivalents, of a Person other than the
Company or the successor or acquiring Person, as the case may be, in such Share Exchange Event, then such supplemental indenture shall
also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or acquiring Person, and shall
contain such additional provisions to protect the interests of the Holders as the Company shall in good faith reasonably consider necessary
by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article 15.
88
(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 shall 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 or cause to be
delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be delivered
to each Holder within twenty (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.
Certain
Covenants.
(a) The Company covenants that all shares of Common Stock issued upon conversion of Notes shall be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with respect to the issue thereof.
(b)
The
Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued
upon conversion, the Company shall, to the extent then permitted by the rules and interpretations of the Commission, secure such
registration or approval, as the case may be.
(c)
The
Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation
system the Company shall list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation
system, any Common Stock issuable upon conversion of the Notes.
89
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 (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);
and
provided
,
further
, that the Trustee and the Conversion Agent shall not be responsible for determining whether any event
contemplated by Section 14.01(b) has occurred for which the Company is not obligated to provide such notice.
Section 14.10.
[Intentionally
Omitted]
.
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.
90
Section 14.12.
Exchange
in Lieu of Conversion
.
(a)
When
a Holder surrenders any Notes for conversion, the Company may, at its election (an “
Exchange Election
”), direct the
Conversion Agent to deliver, on or prior to the Trading Day immediately following the Conversion Date, such Notes to one or more financial
institutions designated by the Company (each, a “
Designated Financial Institution
”) for exchange in lieu of conversion.
In order to accept any Notes surrendered for conversion, the Designated Financial Institution(s) must agree to timely pay and/or
deliver, as the case may be, in exchange for such Notes, the cash, shares of Common Stock or combination of cash and shares of Common
Stock that would otherwise be due upon conversion pursuant to
Section 14.02, as elected by the Company, or such
other amount agreed to by the Holder and the Designated Financial Institution(s) (the “
Conversion Consideration
”).
If the Company makes an Exchange Election, the Company shall, by the close of business on the Trading Day immediately following the relevant
Conversion Date, notify in writing the Trustee, the Conversion Agent (if other than the Trustee) and the Holder surrendering Notes for
conversion that the Company has made the Exchange Election, and the Company shall promptly notify the Designated Financial Institution(s) of
the relevant deadline for delivery of the Conversion Consideration and the type of Conversion Consideration to be paid and/or delivered,
as the case may be.
(b)
Any
Notes delivered to the Designated Financial Institution(s) shall remain outstanding, subject to the applicable procedures of the
Depositary. If the Designated Financial Institution(s) agree(s) to accept any Notes for exchange but do(es) not timely pay
and/or deliver, as the case may be, the related Conversion Consideration, or if such Designated Financial Institution(s) do(es)
not accept the Notes for exchange, the Company shall pay and/or deliver, as the case may be, the relevant Conversion Consideration, as,
and at the time, required pursuant to this Indenture as if the Company had not made the Exchange Election.
(c)
The
Company’s designation of any Designated Financial Institution(s) to which the Notes may be submitted for exchange does not
require such Designated Financial Institution(s) to accept any Notes.
Article 15
Repurchase of Notes at Option of Holders
Section 15.01.
[Intentionally
Omitted]
.
91
Section 15.02.
Repurchase
at Option of Holders Upon a Fundamental Change
.
(a)
If
a Fundamental Change (other than an Exempted Fundamental Change) occurs at any time, each Holder shall have the right, at such Holder’s
option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion of the principal amount thereof
properly surrendered and not validly withdrawn pursuant to
Section 15.03 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 twenty (20) Business Days or more than thirty-five (35) Business Days following the date of the Fundamental Change Company Notice
at a repurchase price equal to one hundred percent (100%) of the principal amount thereof,
plus
accrued and unpaid Special Interest,
if any, thereon to, but excluding, the Fundamental Change Repurchase Date (the “
Fundamental Change Repurchase Price
”),
unless the Fundamental Change Repurchase Date falls after a Special Interest Record Date but on or prior to the Special Interest Payment
Date to which such Special Interest Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid
Special Interest, if any, to Holders of record as of the close of business on such Special Interest Record Date on, or at the Company’s
election, before, such Special Interest Payment Date, and the Fundamental Change Repurchase Price shall be equal to one hundred percent
(100%) of the principal amount of Notes to be repurchased pursuant to this
Article 15. The Fundamental Change Repurchase
Date shall be subject to postponement if necessary in order to allow the Company to comply with applicable law.
(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 applicable procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each
case, on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii)
delivery
of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice
(together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry transfer of
the Notes, if the Notes are Global Notes, in compliance with the applicable procedures of the Depositary, in each case, such delivery
or transfer 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;
92
(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, to exercise the Fundamental Change repurchase right, Holders must surrender their
Notes in accordance with applicable 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 delivery of a written notice of withdrawal to the
Paying Agent in accordance with Section 15.03.
The Paying Agent shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.
(c)
On
or before the twentieth (20th) Business Day after the occurrence of the effective date of a Fundamental Change, the Company shall provide
to all Holders and the Trustee, the Conversion Agent (if other than the Trustee), and the Paying Agent (if 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 resulting repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice
shall be delivered by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable
procedures of the Depositary. Each Fundamental Change Company Notice shall specify:
(i)
the
events causing the Fundamental Change;
(ii)
the
effective date of the Fundamental Change;
(iii)
the
last date on which a Holder may exercise the repurchase right pursuant to this
Article 15;
(iv)
the
Fundamental Change Repurchase Price;
(v)
the
Fundamental Change Repurchase Date;
(vi)
the
name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii)
if
applicable, the Conversion Rate and any adjustments to the Conversion Rate as a result of the Fundamental Change (or related Make-Whole
Fundamental Change);
93
(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 two (2) Business Days before such notice is to be sent (or such shorter period as shall be acceptable to the Trustee), the
Trustee shall give such notice in the Company’s name and at the Company’s expense;
provided
,
however
, that,
in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d)
Notwithstanding
anything to the contrary in this
Article 15, the Company shall not be required to repurchase, or to make an offer
to repurchase, the Notes upon a Fundamental Change if a third party makes such an offer in the same manner, at the same time and otherwise
in compliance with the requirements for an offer made by the Company as set forth in this
Article 15 and such third
party purchases all Notes properly surrendered and not validly withdrawn under its offer in the same manner, at the same time and otherwise
in compliance with the requirements for an offer made by the Company as set forth above.
(e)
Notwithstanding
the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if the principal
amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date (except in the case
of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to
such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held by it during the acceleration
of the Notes (except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change
Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of the Notes in compliance with the applicable
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 validly withdrawn.
(f)
Notwithstanding
anything to the contrary in this
Section 15.02, the Company shall not be required to send a Fundamental Change
Company Notice, or offer to repurchase or repurchase any Notes, as set forth in this
Article 15, in connection
with a Fundamental Change occurring pursuant to clause (b)(A) or (B) of the definition thereof, if: (i) such Fundamental
Change constitutes a Share Exchange Event whose Reference Property consists entirely of cash in U.S. dollars; (ii) immediately after
such Fundamental Change, the Notes become immediately convertible (pursuant to
Section 14.07 and, if applicable,
Section 14.03) into consideration that consists solely of U.S. dollars in an amount per $1,000 principal amount
of Notes that equals or exceeds the Fundamental Change Repurchase Price per $1,000 principal amount of Notes (calculated assuming that
the same includes the maximum amount of any accrued but unpaid Special Interest payable as part of the Fundamental Change Repurchase
Price for such Fundamental Change); and (iii) the Company timely sends the notice relating to such Fundamental Change required pursuant
to
Section 14.01(b)(iii) and includes, in such notice, a statement that the Company is relying on provisions
described in this
Section 15.02(f). Any Fundamental Change with respect to which, in accordance with the provisions
described in this
Section 15.02(f), the Company does not offer to repurchase any Notes is referred to herein as
an “
Exempted Fundamental Change
.”
94
Section 15.03.
Withdrawal
of Fundamental Change Repurchase Notice.
(a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) in
respect of Physical Notes by means of a written notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance
with this
Section 15.03 at any time prior to the close of business on the
Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:
(i)
the
principal amount of the Notes with respect to which such notice of withdrawal is being submitted, which must be $1,000 or an integral
multiple thereof,
(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 Fundamental Change Repurchase Notice, which portion must
be in principal amounts of $1,000 or an integral multiple of $1,000;
If the Notes are Global Notes, Holders must withdraw
their Notes subject to repurchase at any time prior to the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date in accordance with applicable procedures of the Depositary.
Section 15.04.
Deposit
of Fundamental Change Repurchase Price.
(a) The Company will deposit with the Trustee (or other Paying Agent appointed by the
Company, or if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 4.04)
on or prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date (subject to extension if necessary in order
to allow the Company to comply with applicable law) an amount of money sufficient to repurchase all of the Notes to be repurchased at
the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed
by the Company), payment for Notes surrendered for repurchase (and not validly withdrawn prior to the close of business on the Business
Day immediately preceding the Fundamental Change Repurchase Date) will be made on the later of (i) the Fundamental Change Repurchase
Date (
provided
the Holder has satisfied the conditions in
Section 15.02)
and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company)
by the Holder thereof in the manner required by
Section 15.02 by mailing checks
for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register;
provided
,
however
,
that payments to the Depositary shall be made by wire transfer of immediately available funds to the account of the Depositary or its
nominee. The Trustee shall, promptly after such payment and upon written demand by the Company, return to the Company any funds in excess
of the Fundamental Change Repurchase Price.
95
(b)
If
by 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, or, if extended in order to allow the Company to comply
with applicable law, on such later date, the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to pay the
Fundamental Change Repurchase Price (and, to the extent not included in the Fundamental Change Repurchase Price, accrued and unpaid Special
Interest, if applicable) of the Notes to be repurchased on such Fundamental Change Repurchase Date (or such later date if extended in
order to allow the Company to comply with applicable law), 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) Special Interest, if any, will cease
to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or whether or not the Notes have been delivered
to the Trustee or Paying Agent) and (iii) all other rights of the Holders of such Notes will terminate (other than the right to
receive the Fundamental Change Repurchase Price and, to the extent not included in the Fundamental Change Repurchase Price, accrued and
unpaid Special Interest, if applicable).
(c)
Upon
surrender of a Note that is to be repurchased in part pursuant to
Section 15.02, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased
portion of the Note surrendered.
Section 15.05.
Covenant
to Comply with Applicable Laws Upon Repurchase of Notes
. In connection with any repurchase offer upon a Fundamental Change pursuant
to this
Article 15, the Company will, if required:
(a)
comply
with the tender offer rules under the Exchange Act that may then be applicable;
(b)
file
a Schedule TO or any other required schedule under the Exchange Act; and
(c)
otherwise
comply in all material respects 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, subject to postponement
in order to allow the Company to comply with applicable law.
96
To the extent that the provisions of any securities
laws or regulations enacted or adopted after the date of this Indenture conflict with the provisions of this Indenture relating to the
Company’s obligations to repurchase the 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 obligations under such provisions of this Indenture by virtue of such
conflict.
Article 16
Redemption
Section 16.01.
Optional
Redemption; Cleanup Redemption
.
(a)
No
sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company prior to October 9, 2029, except as set
forth in
Section 16.01(b). On a Redemption Date on or after October 9, 2029 and prior to the thirty-first
(31st) Scheduled Trading Day immediately preceding the Maturity Date, the Company may, at its option, 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 one hundred thirty percent (130%) of the Conversion Price then in effect for at least
twenty (20) Trading Days (whether or not consecutive) during any thirty (30) consecutive Trading Day period (including the last Trading
Day of such period) ending on, and including, the Trading Day immediately preceding the date on which the Company provides the Notice
of Optional Redemption in accordance with
Section 16.02.
(b)
The
Company may redeem (a “
Cleanup Redemption
”) for cash all, but not less than all, of the Notes at any time prior to
the thirty-first (31st) Scheduled Trading Day immediately preceding the Maturity Date at the Redemption Price if (i) the aggregate
principal amount of Notes that remains outstanding as of the date the Company sends the related Notice of Cleanup Redemption is less
than one hundred million dollars ($100,000,000) and (ii) the shares of Common Stock that the Company would deliver upon any conversion
in connection with such Cleanup Redemption in accordance with
Section 14.01(b)(v) would be eligible to be
offered, sold or otherwise transferred pursuant to Rule 144 by a Person that is not an Affiliate of the Company, and that has not
been an Affiliate of the Company during the immediately preceding three (3) months, without any requirements as to volume, manner
of sale, availability of current public information or notice under the Securities Act. For the avoidance of doubt, the condition described
in clause (ii) of the immediately preceding sentence shall not apply if, in accordance with Section 14.02(a), the Company elects
to settle all conversions of Notes called for Cleanup Redemption with a Conversion Date that occurs during the related Redemption Period
by Cash Settlement.
97
Section 16.02.
Notice
of 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, or its Cleanup
Redemption right to redeem all, but not less than all, of the Notes, in each case, pursuant to
Section 16.01, it
shall fix a date for such Optional Redemption or Cleanup Redemption (each, a “
Redemption Date
”) and it or, at its
written request received by the Trustee not less than five (5) Business Days prior to the date such Notice of Redemption is to be
sent (or such shorter period of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company,
shall deliver or cause to be delivered a notice of such Optional Redemption (a “
Notice of Optional Redemption
”) or
a notice of such Cleanup Redemption (a “
Notice of Cleanup Redemption
”), as the case may be, not less than thirty-five
(35) nor more than fifty-five (55) Scheduled Trading Days prior to the applicable Redemption Date to each Holder so to be redeemed as
a whole or, as the case may be, pursuant to an Optional Redemption, 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);
provided further
that if, in accordance with the provisions of
Section 14.02(a)(iii),
the Company elects through delivery of a Settlement Notice to settle all conversions of Called Notes with a Conversion Date that occurs
during the related Redemption Period by Physical Settlement, then the Company may instead elect to choose a Redemption Date that is a
Business Day not less than ten (10) nor more than sixty (60) calendar days after the date the Company sends such Notice of Redemption.
The Redemption Date set forth in the relevant Notice of Redemption must be a Business Day, and the Company shall not specify a Redemption
Date that falls on or after the thirty-first (31st) Scheduled Trading Day immediately preceding the Maturity Date.
(b)
The
Notice of Redemption, 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 Notice of Redemption or any defect in the Notice of Redemption
to the Holder of any Note designated for Optional Redemption (as a whole or in part) or for Cleanup Redemption, as the case may be, shall
not affect the validity of the proceedings for the redemption of any other Note.
(c)
Each
Notice of Redemption 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 Special Interest thereon,
if any, shall cease to accrue on and after payment of the Redemption Price in full on the Redemption Date;
(iv)
the
place or places where such Notes are to be surrendered for payment of the Redemption Price;
98
(v)
that
Holders of Called Notes may surrender such Notes for conversion at any time during the related Redemption Period;
(vi)
the
procedures a converting Holder must follow to convert its Called 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 in an Optional Redemption, 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 Notice of Redemption shall be irrevocable. At
the Company’s written request given at least two (2) Business Days before such notice is to be sent (or such shorter period
as shall be acceptable to the Trustee), 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 Notice of Redemption shall be prepared by the Company.
(d)
In
connection with an Optional Redemption, if the Company elects to redeem fewer than all of the outstanding Notes, at least one hundred
million dollars ($100,000,000) aggregate principal amount of Notes must be outstanding and not subject to Optional Redemption as of,
and after giving effect to, the delivery of the relevant Notice of Optional Redemption (such requirement, the “
Partial Redemption
Limitation
”). If fewer than all of the outstanding Notes are to be redeemed in an Optional Redemption and the Notes to be redeemed
are Global Notes, the Notes to be redeemed shall be selected by the Depositary in accordance with the applicable procedures of the Depositary.
If fewer than all of the outstanding Notes are to be redeemed in an Optional Redemption and the Notes to be redeemed are not Global Notes,
the Trustee shall select the Notes or portions thereof to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot, on
a
pro rata
basis or by another method the Trustee considers to be fair and appropriate. If any Note selected for partial redemption
by the Trustee (or the Depositary, with respect to Global Notes) in an Optional Redemption is submitted for conversion in part after
such selection, the portion of the Note submitted for conversion shall be deemed (so far as may be possible) to be the portion selected
for redemption, subject, in the case of Notes represented by a Global Note, to the Depositary’s applicable procedures.
(e)
If
a portion of any Note is subject to partial Optional Redemption and the Holder of such Note converts a portion of the same Note, the
converted portion of such Note shall be deemed to be from the portion of such Note that is subject to the Optional Redemption.
99
Section 16.03.
Payment
of Notes Called for Redemption
.
(a)
If
any Notice of Redemption has been given in respect of all or, in the case of an Optional Redemption, any part of the Notes in accordance
with
Section 16.02, the Notes so subject to redemption shall become due and payable on the Redemption Date at the
place or places stated in the Notice of Redemption and at the applicable Redemption Price. On presentation and surrender of the Notes
to be redeemed at the place or places stated in the Notice of Redemption, such Notes shall be paid and redeemed by the Company at the
applicable Redemption Price. Upon surrender of a Note that is to be redeemed in part in an Optional Redemption pursuant to
Section 16.01,
the Company shall execute and the Trustee shall authenticate and deliver to the Holder a new Note in an authorized denomination equal
in principal amount to the unredeemed portion of the Note surrendered.
(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 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 Entity.
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.
100
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 overnight courier or 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 SentinelOne, Inc., 444 Castro Street, Suite 400, Mountain View,
California 94041, Attention Treasury, Email: treasury@sentinelone.com. Any notice, direction, request or demand hereunder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed to the Corporate Trust Office or sent electronically in
PDF format to an email address specified by the Trustee, upon actual receipt by the Trustee.
The Trustee, by notice to the Company, may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication delivered or to be
delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, at its address as it appears on the
Note Register and shall be sufficiently given to it if so mailed within the time prescribed. Any notice or communication delivered or
to be delivered to a Holder of Global Notes shall be delivered in accordance with the applicable procedures of the Depositary and shall
be sufficiently given to it if so delivered within the time prescribed;
provided
that notice to the Trustee and the Conversion
Agent shall be deemed given upon actual receipt by the Trustee or the Conversion Agent, as applicable. 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.
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.
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.
101
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 an Opinion of Counsel stating that such action is permitted by the terms of this Indenture
and that all conditions precedent, including any covenants, compliance with such which constitutes a condition precedent to such action,
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, Section 7.02(h) and
Section 8.04) 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;
provided
that no Opinion of Counsel shall be required
to be delivered in connection with (1) the original issuance of Notes on the date hereof under this Indenture, (2) the mandatory
exchange of the restricted CUSIP of the Restricted Securities to an unrestricted CUSIP pursuant to the applicable procedures of the Depositary
upon the Notes becoming freely tradable by non-Affiliates of the Company under Rule 144, or (3) a request by the Company that
the Trustee deliver a notice to Holders under this Indenture where the Trustee receives an Officer’s Certificate with respect to
such notice. With respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or certificates of public
officials.
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.
102
Section 17.06.
Legal
Holidays.
In any case where any Special Interest Payment Date, any Fundamental Change Repurchase Date, any Redemption Date or the
Maturity Date is not a Business Day or is a day on which financial institutions located in the state in which the Corporate Trust Office
is located are authorized or required by law or executive order to close or be closed, 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 that is not a day on which financial institutions located
in the state in which the Corporate Trust Office is located are authorized or required by law or executive order to close or be closed
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 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.
103
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 all or substantially all of the corporate trust business of any authenticating agent, shall be the successor of the authenticating
agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10, without
the execution or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor
corporation or other entity.
Any authenticating agent may at any time resign
by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time any authenticating agent shall cease to be eligible under this Section, the Trustee
may appoint a successor authenticating agent (which may be the Trustee), shall give written notice of such appointment to the Company
and shall deliver notice of such appointment to all Holders.
The Company agrees to pay to the authenticating
agent from time to time reasonable compensation for its services although the Company may terminate the authenticating agent, if it determines
such agent’s fees to be unreasonable.
The provisions of Section 7.02,
Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be
applicable to any authenticating agent.
If an authenticating agent is appointed pursuant
to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication,
an alternative certificate of authentication in the following form:
__________________________,
as Authenticating Agent, certifies that this is one of the Notes described in the within-named Indenture.
By:
Authorized Officer
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,
PDF or other electronic 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, PDF or other
electronic transmission shall constitute effective execution and delivery of this Indenture as to the other parties hereto and 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.
104
Section 17.13.
Waiver
of Jury Trial.
EACH OF THE COMPANY, THE HOLDERS, BY THEIR ACCEPTANCE OF THE NOTES, AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 17.14.
Force
Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, pandemics, epidemics, quarantine restrictions, recognized public emergencies, 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 this Indenture and
the Notes. These calculations include, but are not limited to, determinations of the Stock Price, the Last Reported Sale Prices of the
Common Stock, the Trading Price of the Notes (for purposes of determining whether the Notes are convertible as described herein), the
Daily VWAPs, the Daily Conversion Values, the Daily Settlement Amounts, accrued Special Interest, if any, payable on the Notes and the
Conversion Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s
calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the
Trustee, 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. The Trustee will forward the Company’s calculations to any Holder of Notes upon the request of that Holder
at the sole cost and expense of the Company.
Section 17.16.
USA
PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all
financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the USA PATRIOT Act.
105
Section 17.17.
Electronic
Signatures
. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication
sent to the Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by
DocuSign (or such other digital signature provider as specified in writing to Trustee by the authorized representative), in English).
The Company agrees to assume all risks arising out of the use of digital signatures and electronic methods to submit communications to
Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse
by third parties.
[
Remainder of page intentionally left
blank
]
106
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first written above.
SENTINELONE, INC.
By:
/s/ Sonalee Parekh
Name: Sonalee Parekh
Title: Chief Financial Officer
[
Signature Page to Indenture
]
U.S. BANK
TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
/s/ Bradley E. Scarbrough
Name: Bradley E. Scarbrough
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]
[THE OFFER AND SALE OF THIS
SECURITY AND THE CLASS A 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”) OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION, 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 SENTINELONE, 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
A-
1
(B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION
OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(D) ABOVE, THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER
IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY
OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
NO AFFILIATE (AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY OR PERSON THAT HAS BEEN AN AFFILIATE (AS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT) OF THE COMPANY DURING THE IMMEDIATELY PRECEDING THREE MONTHS MAY PURCHASE, OTHERWISE ACQUIRE OR HOLD THIS SECURITY OR A BENEFICIAL
INTEREST HEREIN.
A-
2
SentinelOne, Inc.
0.00% Convertible Senior Note due 2031
No. [_____]
[Initially]
1
$[_____________]
CUSIP No. [_____]
2
SentinelOne, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware (the “
Company
,” which term includes any successor corporation
or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.]
3
[_______]
4
, or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges
of Notes” attached hereto]
5
[of $[_______]]
6
, which amount, taken together with the principal amounts
of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed $1,437,500,000 in aggregate at any time [, in accordance
with the rules and applicable procedures of the Depositary,] on October 1, 2031, and any interest thereon as set forth below.
This Note shall not bear regular interest, and the principal amount shall not accrete. Any Special Interest is payable semi-annually
in arrears on each April 1 and October 1, commencing on April 1, 2027 (if any Special Interest is then payable), to Holders
of record at the close of business on the preceding March 15 and September 15 (whether or not such day is a Business Day),
respectively. Any Special 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 refer solely to Special Interest (if, in such context, Special 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/or to any interest on any Defaulted
Amounts payable as set forth in Section 2.03(c) in the within-mentioned Indenture.
Any Defaulted Amounts shall not accrue interest
unless Special Interest was payable on the required payment date, in which case such Defaulted Amounts shall accrue interest per annum
at the then-applicable Special Interest rate borne by the Notes, subject to the enforceability thereof under applicable law, 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
This
Note will be deemed to be identified by CUSIP No. [_____] from and after such time when (i) the Company delivers, pursuant to
Section
2.05(c) of the within-mentioned Indenture, written notice to the Trustee of the occurrence of the Resale Restriction Termination Date
and the removal of the restrictive legend affixed to this Note and (ii) this Note is identified by such CUSIP number in accordance with
the applicable procedures of the Depositary.
3
Include if a global note.
4
Include if a physical note.
5
Include if a global note.
6
Include if a physical note.
A-
3
The Company shall pay the principal of and interest,
if any, on this Note, if and so long as such Note is a Global Note, 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 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 within the continental 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.
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
]
A-
4
IN WITNESS WHEREOF, the Company has caused this
Note to be duly executed.
SENTINELONE, INC.
By:
Name:
Title:
A-
5
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.
By:
Authorized Signatory
A-
6
[FORM OF REVERSE OF NOTE]
SentinelOne, Inc.
0.00% Convertible Senior Note due 2031
This Note is one of a duly authorized issue of
Notes of the Company, designated as its 0.00% Convertible Senior Notes due 2031 (the “
Notes
”), limited to the aggregate
principal amount of $1,437,500,000, all issued or to be issued under and pursuant to an Indenture dated as of October 16, 2026 (the
“
Indenture
”), between the Company and U.S. Bank Trust Company, National Association, as trustee (the “
Trustee
”),
to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and the Holders 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 Special Interest, if any, on, all Notes may be declared by either the Trustee or Holders of
at least twenty-five percent (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 Fundamental Change Repurchase Price on the Fundamental Change Repurchase
Date, the Redemption Price on any 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 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.
A-
7
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.
Except in the case of a Cleanup Redemption, the
Notes shall not be redeemable by the Company prior to October 9, 2029. The Notes shall be redeemable at the Company’s option
on a Redemption Date on or after October 9, 2029 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 (other
than an Exempted Fundamental Change), the Holder has the right, at such Holder’s option, to require the Company to repurchase for
cash all of such Holder’s Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental
Change Repurchase Date at a price equal to the Fundamental Change 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 (2nd) Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes
or portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common Stock or a combination of cash and shares
of Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.
A-
8
ABBREVIATIONS
The following abbreviations, when used in the
inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants
in common
Additional abbreviations may also be used though
not in the above list.
A-
9
SCHEDULE A
7
SCHEDULE OF EXCHANGES OF NOTES
SentinelOne, Inc.
0.00% Convertible Senior Notes due 2031
The initial principal amount of this Global Note
is [_______] DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:
Date of
exchange
Amount of
decrease in
principal amount
of this Global
Note
Amount of
increase in
principal amount
of this Global
Note
Principal
amount
of this Global
Note following
such decrease or
increase
Signature
of
authorized
signatory of
Trustee or
Custodian
7
Include if a global note.
A-
10
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
To: U.S. Bank Trust Company, National Association
633 West 5th Street, 24th Floor
Los Angeles, CA 90071
Attention: Bradley Scarbrough (SentinelOne, Inc.
Administrator)
The undersigned registered owner of this Note
hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple thereof)
below designated, into cash and, if applicable, shares of Common Stock 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 Special Interest accompanies this Note. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed
by an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Securities and Exchange
Commission Rule 17Ad-15 if shares
of Common Stock are to be issued, or
Notes are to be delivered, other than
to and in the name of the registered holder.
1
Fill in for registration of shares if
to be issued, and Notes if to
be delivered, other than to and in the
name of the registered holder:
(Name)
(Street Address)
(City, State and Zip Code)
Please print name and address
Principal amount to be converted (if less than all): $______,000
NOTICE: The above signature(s) of the Holder(s) hereof
must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change
whatsoever.
Social Security or Other Taxpayer
Identification Number
2
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
To: U.S. Bank Trust Company, National Association
633 West 5th Street, 24th Floor
Los Angeles, CA 90071
Attention: Bradley Scarbrough (SentinelOne, Inc.
Administrator)
The undersigned registered owner of this Note
hereby acknowledges receipt of a notice from SentinelOne, 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 Special Interest Record Date
and on or prior to the corresponding Special Interest Payment Date, accrued and unpaid Special 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:
Signature(s)
Social Security or Other Taxpayer
Identification Number
Principal amount to be repaid (if less than all):
$______,000
NOTICE: The above signature(s) of the Holder(s) hereof
must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change
whatsoever.
1
ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
For value received ____________________________ hereby sell(s), assign(s) and
transfer(s) unto _________________ (Please insert social security or Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints _____________________ 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
SentinelOne, 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
¨
To
a person reasonably believed to be a qualified institutional buyer 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.
1
Dated:
Signature(s)
Signature Guarantee
Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15 if Notes are to be delivered, other
than to and in the name of the registered holder.
NOTICE: The signature on the assignment must correspond with the name
as written upon the face of the Note in every particular without alteration or enlargement or any change whatsoever.
2

----- tm2627397d1_ex99-1.htm -----
EX-99.1
4
tm2627397d1_ex99-1.htm
EXHIBIT 99.1
Exhibit 99.1
SentinelOne Announces Proposed Private Placement
of $1.25 Billion of Convertible Senior Notes Due 2031
MOUNTAIN
VIEW, CA /
SentinelOne, Inc. (NYSE: S) (“SentinelOne”) today announced that it intends to offer,
subject to market conditions and other factors, $1.25 billion aggregate principal amount of 0.00% Convertible Senior Notes due 2031 (the
“notes”) in a private placement (the “offering”) to persons reasonably believed to be “qualified institutional
buyers” pursuant to Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”). SentinelOne also
intends to grant the initial purchasers of the notes an option to purchase, for settlement during a 13-day period beginning on, and including,
the date on which the notes are first issued, up to an additional $187.5 million aggregate principal amount of the notes.
The notes will be general senior unsecured obligations of SentinelOne.
The notes will not bear regular interest, and the principal amount of the notes will not accrete. Upon conversion, SentinelOne will pay
or deliver, as the case may be, cash, shares of SentinelOne’s Class A common stock or a combination of cash and shares of SentinelOne’s
Class A common stock, at SentinelOne’s election. The final terms of the notes, including the initial conversion rate and certain
other terms, will be determined at the time of the pricing of the notes.
SentinelOne expects to use the net proceeds from the offering (i) to
pay the cost of the privately negotiated capped call transactions described below, (ii) to repurchase up to $150.0 million of shares of
its Class A common stock concurrently with the pricing of the notes, as described below, and (iii) the remainder for general corporate
purposes, additional repurchases of its Class A common stock, working capital, capital expenditures, and potential acquisitions and strategic
transactions or investments involving businesses, technologies, or products that SentinelOne may identify from time to time.
In connection with the pricing of the notes, SentinelOne expects to
enter into privately negotiated capped call transactions with one or more of the initial purchasers or affiliates thereof and/or other
financial institutions (the “option counterparties”). The capped call transactions will cover, subject to customary adjustments,
the number of shares of SentinelOne’s Class A common stock that will initially underlie the notes. The capped call transactions
are expected generally to reduce the potential dilution to SentinelOne’s Class A common stock upon any conversion of notes and/or
offset any cash payments SentinelOne is required to make in excess of the principal amount of converted notes, as the case may be, with
such reduction and/or offset subject to a cap. SentinelOne anticipates that the cap price of the capped call transactions will initially
represent a premium of at least 100% over the last reported sale price of SentinelOne’s Class A common stock on The New York Stock
Exchange on the pricing date of the offering. If the initial purchasers exercise their option to purchase additional notes, SentinelOne
expects to use a portion of the net proceeds from the sale of the additional notes to enter into additional capped call transactions with
the option counterparties.
In connection with establishing their initial hedges of the capped
call transactions, SentinelOne expects that the option counterparties or their respective affiliates will purchase shares of SentinelOne’s
Class A common stock and/or enter into various derivative transactions with respect to SentinelOne’s Class A common stock concurrently
with or shortly after the pricing of the notes. This activity could increase (or reduce the size of any decrease in) the market price
of SentinelOne’s Class A common stock or the notes at that time.
In addition, SentinelOne expects that the option counterparties or
their respective affiliates may modify their hedge positions by entering into or unwinding various derivatives with respect to SentinelOne’s
Class A common stock and/or purchasing or selling SentinelOne’s Class A common stock or other securities of SentinelOne in secondary
market transactions following the pricing of the notes and prior to the maturity of the notes (and are likely to do so following any early
conversion, repurchase, or redemption of the notes, to the extent SentinelOne unwinds a corresponding portion of the capped call transactions,
or if SentinelOne otherwise unwinds all or a portion of the capped call transactions, and during the final observation period for the
conversion of notes). This activity could also cause or avoid an increase or a decrease in the market price of SentinelOne’s Class
A common stock or the notes, which could affect the ability of a holder of notes to convert the notes and, to the extent the activity
occurs during any observation period related to a conversion of notes, it could affect the number of shares and value of the consideration,
if any, that a holder of notes will receive upon conversion of the notes.
Concurrently with the pricing of the notes, SentinelOne intends to
use a portion of the net proceeds from the offering to repurchase up to $150.0 million of shares of its Class A common stock from purchasers
of notes in the offering in privately negotiated transactions with or through one of the initial purchasers or its affiliates (the “share
repurchases”). The share repurchases could increase, or reduce the size of any decrease in, the market price of SentinelOne’s
Class A common stock, including concurrently with the pricing of the notes, resulting in a higher effective conversion price for the notes.
SentinelOne expects the purchase price per share of SentinelOne’s Class A common stock repurchased in the share repurchases to equal
the closing price of SentinelOne’s Class A common stock on The New York Stock Exchange on the date of pricing of the notes. No assurance
can be given as to how much, if any, of SentinelOne’s Class A common stock will be repurchased or the terms on which it will be
repurchased. The offering is not contingent upon the repurchase of SentinelOne’s Class A common stock. SentinelOne may also conduct
further repurchases of its Class A common stock after the offering of the notes is completed.
The offer and sale of the notes and any shares of SentinelOne’s
Class A common stock issuable upon conversion of the notes have not been and will not be registered under the Securities Act, any state
securities laws or the securities laws of any other jurisdiction, and unless so registered, may not be offered or sold in the United States
absent registration or an applicable exemption from, or in a transaction not subject to, the registration requirements of the Securities
Act and other applicable securities laws.
SentinelOne intends to enter
into a credit agreement (the “credit agreement”) with respect to a $400 million secured revolving credit facility and is currently
in discussions with potential lenders regarding the terms thereof. However, the credit agreement has not been executed as of the date
of this press release, and there can be no assurance that SentinelOne will enter into the credit agreement on favorable terms or at all.
The completion of the offering is not contingent upon SentinelOne’s entry into the credit agreement.
This press release is neither an offer to sell nor a solicitation of
an offer to buy the notes or any shares of Class A common stock issuable upon the conversion of the notes, nor shall there be any sale
of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to the registration
or qualification thereof under the securities laws of any such state or jurisdiction.
Forward-Looking Statements
This press release contains forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995, as amended, including statements regarding the proposed terms of the
notes and capped call transactions, the timing, completion and size of the proposed offering of the notes and capped call transactions,
the anticipated use of proceeds from the offering (including the expected terms and the consummation of the share repurchases), the grant
of the option to the initial purchasers, the effects of the share repurchases, expectations regarding the effect of the capped call transactions
and the actions of the option counterparties and their respective affiliates, and SentinelOne’s intention to enter into the credit
agreement. In some cases, forward-looking statements can be identified by terminology such as “will,” “may,”
“should,” “could,” “expects,” “intends,” “plans,” “aims,” “anticipates,”
“believes,” “estimates,” “predicts,” “potential,” “continue,” or the negative
of these terms or other comparable terminology, although not all forward-looking statements contain these words. The forward-looking
statements in this press release are neither promises nor guarantees, and you should not place undue reliance on these forward-looking
statements because they involve known and unknown risks, uncertainties, and other factors, many of which are beyond SentinelOne’s
control and which could cause actual results to differ materially from those expressed or implied by these forward-looking statements.
These risks, uncertainties, and other factors include, among others, those risks and uncertainties described under the heading “Risk
Factors” in SentinelOne’s Annual Report on Form 10-K for the fiscal year ended January 31, 2026 and Quarterly Report on Form
10-Q for the fiscal quarter ended July 31, 2026, each filed with the U.S. Securities and Exchange Commission (the “SEC”),
and in subsequent filings made by SentinelOne with the SEC, which are available on the SEC’s website at www.sec.gov. Except as
required by law, SentinelOne disclaims any intention or responsibility for updating or revising any forward-looking statements contained
in this press release in the event of new information, future developments or otherwise. These forward-looking statements are based on
SentinelOne’s current expectations and speak only as of the date of this press release.
Media Contact:
Regan DePinto
press@sentinelone.com

----- tm2627397d1_ex99-2.htm -----
EX-99.2
5
tm2627397d1_ex99-2.htm
EXHIBIT 99.2
Exhibit 99.2
SentinelOne Announces Pricing of Offering of
$1.25 Billion of 0.00% Convertible Senior Notes Due 2031
MOUNTAIN
VIEW, CA /
SentinelOne, Inc. (NYSE: S) (“SentinelOne”) today announced the pricing of $1.25
billion aggregate principal amount of 0.00% Convertible Senior Notes due 2031 (the “notes”) in a private placement (the “offering”)
to persons reasonably believed to be “qualified institutional buyers” pursuant to Rule 144A under the Securities Act of 1933,
as amended (the “Securities Act”). SentinelOne has also granted the initial purchasers of the notes an option to purchase,
for settlement during a 13-day period beginning on, and including, the date on which the notes are first issued, up to an additional $187.5
million aggregate principal amount of the notes. The sale of the notes to the initial purchasers is expected to settle on October 16,
2026, subject to customary closing conditions.
The notes will be general senior unsecured obligations of SentinelOne.
The notes will not bear regular interest, and the principal amount of the notes will not accrete. The notes will mature on October 1,
2031, unless earlier converted, redeemed or repurchased.
SentinelOne estimates that the net proceeds from the offering will
be approximately $1,224 million (or approximately $1,408 million if the initial purchasers exercise their option to purchase additional
notes in full), after deducting the initial purchasers’ discount and estimated offering expenses payable by SentinelOne. SentinelOne
expects to use the net proceeds from the offering (i) to pay the approximately $131.6 million cost of the privately negotiated capped
call transactions described below, (ii) to repurchase approximately $150.0 million of shares of its Class A common stock concurrently
with the pricing of the notes, as described below, and (iii) the remainder for general corporate purposes, additional repurchases of its
Class A common stock, working capital, capital expenditures, and potential acquisitions and strategic transactions or investments involving
businesses, technologies, or products that SentinelOne may identify from time to time.
The notes will be convertible at the option of holders in certain circumstances.
Upon conversion, SentinelOne will pay or deliver, as the case may be, cash, shares of SentinelOne’s Class A common stock or a combination
of cash and shares of SentinelOne’s Class A common stock, at SentinelOne’s election.
The conversion rate will initially be 32.0379 shares of SentinelOne’s
Class A common stock per $1,000 principal amount of notes (equivalent to an initial conversion price of approximately $31.21 per share
of SentinelOne’s Class A common stock). The initial conversion price represents a premium of approximately 30.0% over the last reported
sale price of $24.01 per share of SentinelOne’s Class A common stock on The New York Stock Exchange on October 13, 2026. The conversion
rate will be subject to adjustment in some events but will not be adjusted for any accrued and unpaid special interest, if any. In addition,
following certain corporate events that occur prior to the maturity date or if SentinelOne delivers a notice of redemption, it will, in
certain circumstances, increase the conversion rate for a holder who elects to convert its notes in connection with such a corporate event
or convert its notes called (or deemed called, in the case of an optional redemption) for redemption during the related redemption period,
as the case may be.
SentinelOne may not redeem the notes prior to October 9, 2029, except
in the event of a cleanup redemption as described below. SentinelOne may redeem for cash all or any portion of the notes (subject to certain
limitations), at its option, on a redemption date on or after October 9, 2029 and before the 31st scheduled trading day immediately prior
to the maturity date if the last reported sale price of SentinelOne’s Class A common stock has been at least 130% of the conversion
price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period (including
the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which SentinelOne provides
the related notice of redemption, at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued
and unpaid special interest, if any, to, but excluding, the redemption date (such redemption, an “optional redemption”). In
addition, subject to certain conditions, SentinelOne may redeem for cash all, but not less than all, of the notes at any time prior to
the 31st scheduled trading day immediately preceding the maturity date if the aggregate principal amount of the notes that remains outstanding
at such time is less than $100.0 million, at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus
accrued and unpaid special interest, if any, to, but excluding, the redemption date (such redemption, a “cleanup redemption”).
If SentinelOne undergoes a “fundamental change” (as defined
in the indenture that will govern the notes), then, subject to certain conditions and exceptions, holders may require SentinelOne 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 accrued and unpaid special interest, if any, to, but excluding, the fundamental change repurchase date.
In connection with the pricing of the notes, SentinelOne entered into
privately negotiated capped call transactions with certain of the initial purchasers or their respective affiliates and certain other
financial institutions (the “option counterparties”). The capped call transactions cover, subject to customary adjustments,
the number of shares of SentinelOne’s Class A common stock initially underlying the notes. The capped call transactions are expected
generally to reduce the potential dilution to SentinelOne’s Class A common stock upon any conversion of notes and/or offset any
cash payments SentinelOne is required to make in excess of the principal amount of converted notes, as the case may be, with such reduction
and/or offset subject to a cap. If the initial purchasers exercise their option to purchase additional notes, SentinelOne expects to use
a portion of the net proceeds from the sale of the additional notes to enter into additional capped call transactions with the option
counterparties.
The cap price of the capped call transactions relating to the notes
is initially $48.02 per share of SentinelOne’s Class A common stock, which represents a premium of 100.0% over the last reported
sale price of $24.01 per share of SentinelOne’s Class A common stock on The New York Stock Exchange on October 13, 2026, and
is subject to certain adjustments under the terms of the capped call transactions.
SentinelOne has been advised that, in connection with establishing
their initial hedges of the capped call transactions, the option counterparties or their respective affiliates expect to purchase shares
of SentinelOne’s Class A common stock and/or enter into various derivative transactions with respect to SentinelOne’s Class
A common stock concurrently with or shortly after the pricing of the notes. This activity could increase (or reduce the size of any decrease
in) the market price of SentinelOne’s Class A common stock or the notes at that time. In addition, SentinelOne has been advised
that the option counterparties or their respective affiliates may modify their hedge positions by entering into or unwinding various derivatives
with respect to SentinelOne’s Class A common stock and/or purchasing or selling SentinelOne’s Class A common stock or other
securities of SentinelOne in secondary market transactions following the pricing of the notes and prior to the maturity of the notes (and
are likely to do so following any early conversion, repurchase, or redemption of the notes, to the extent SentinelOne unwinds a corresponding
portion of the capped call transactions, or if SentinelOne otherwise unwinds all or a portion of the capped call transactions, and during
the final observation period for the conversion of notes). This activity could also cause or avoid an increase or a decrease in the market
price of SentinelOne’s Class A common stock or the notes, which could affect the ability of a holder of notes to convert the notes
and, to the extent the activity occurs during any observation period related to a conversion of notes, it could affect the number of shares
and value of the consideration, if any, that a holder of notes will receive upon conversion of the notes.
SentinelOne intends to use approximately $150.0 million of the net
proceeds from the offering to repurchase approximately 6.2 million shares of its Class A common stock from purchasers of the notes in
privately negotiated transactions with or through one of the initial purchasers or its affiliates concurrently with the pricing of the
notes (the “share repurchases”). The purchase price per share of Class A common stock repurchased in the share repurchases
is equal to the closing price per share of SentinelOne’s Class A common stock on The New York Stock Exchange on October 13, 2026,
which was $24.01 per share. The share repurchases could increase, or reduce the size of any decrease in, the market price of SentinelOne’s
Class A common stock concurrently with the pricing of the notes, and could have resulted in a higher effective conversion price for the
notes. The completion of the offering of the notes is not contingent upon the completion of the share repurchases. SentinelOne may also
conduct further repurchases of its Class A common stock after the offering of the notes is completed.
The notes were only offered to persons reasonably believed to be qualified
institutional buyers pursuant to Rule 144A promulgated under the Securities Act by means of a private offering memorandum. The offer and
sale of the notes and any shares of SentinelOne’s Class A common stock issuable upon conversion of the notes have not been and will
not be registered under the Securities Act, any state securities laws or the securities laws of any other jurisdiction, and unless so
registered, may not be offered or sold in the United States absent registration or an applicable exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and other applicable securities laws.
This press release is neither an offer to sell nor a solicitation of
an offer to buy the notes or any shares of Class A common stock issuable upon the conversion of the notes, nor shall there be any sale
of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to the registration
or qualification thereof under the securities laws of any such state or jurisdiction.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning
of the Private Securities Litigation Reform Act of 1995, as amended, including statements regarding the timing and completion of the offering
of the notes, the anticipated use of proceeds from the offering (including the consummation of the share repurchases), the grant of the
option to the initial purchasers, the effects of the share repurchases, and expectations regarding the effect of the capped call transactions
and the actions of the option counterparties and their respective affiliates. In some cases, forward-looking statements can be identified
by terminology such as “will,” “may,” “should,” “could,” “expects,” “intends,”
“plans,” “aims,” “anticipates,” “believes,” “estimates,” “predicts,”
“potential,” “continue,” or the negative of these terms or other comparable terminology, although not all forward-looking
statements contain these words. The forward-looking statements in this press release are neither promises nor guarantees, and you should
not place undue reliance on these forward-looking statements because they involve known and unknown risks, uncertainties, and other factors,
many of which are beyond SentinelOne’s control and which could cause actual results to differ materially from those expressed or
implied by these forward-looking statements. These risks, uncertainties, and other factors include, among others, those risks and uncertainties
described under the heading “Risk Factors” in SentinelOne’s Annual Report on Form 10-K for the fiscal year ended January
31, 2026 and Quarterly Report on Form 10-Q for the fiscal quarter ended July 31, 2026, each filed with the U.S. Securities and Exchange
Commission (the “SEC”), and in subsequent filings made by SentinelOne with the SEC, which are available on the SEC’s
website at www.sec.gov. Except as required by law, SentinelOne disclaims any intention or responsibility for updating or revising any
forward-looking statements contained in this press release in the event of new information, future developments or otherwise. These forward-looking
statements are based on SentinelOne’s current expectations and speak only as of the date of this press release.
Media Contact:
Regan DePinto
press@sentinelone.com