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2024-03-08
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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):
March 8, 2024
KOSMOS ENERGY LTD.
(Exact Name of Registrant as Specified in its Charter)
Delaware |
|
001-35167 |
|
98-0686001 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
8176 Park Lane
Dallas, Texas |
|
|
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75231 |
(Address of Principal Executive Offices) |
|
|
|
(Zip Code) |
Registrant’s telephone number, including
area code: +1 214 445 9600
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)) |
Title of each class |
|
Trading symbol(s) |
|
Name of each exchange on which registered |
Common Stock, $0.01 Par Value |
|
KOS |
|
New York Stock Exchange
London 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 (17 CFR §230.405) or Rule 12b-2 of
the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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 |
On March 8, 2024, Kosmos Energy Ltd. (the “Company”) completed
its previously announced sale of $400 million aggregate principal amount of its 3.125% convertible senior notes due 2030 (the “Notes”),
which includes the full exercise of the initial purchasers’ option to purchase up to an additional $50 million in aggregate principal
amount of Notes, to the initial purchasers in a private placement in reliance on 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 issued such Notes under
the indenture dated March 8, 2024 (the “Indenture”) among the Company, the guarantors named therein (the “Guarantors”)
and Wilmington Trust, National Association, as trustee.
The Indenture
The Notes will bear interest at a rate of 3.125% per year, payable
semi-annually in arrears on March 15 and September 15 of each year, beginning on September 15, 2024. The Notes will mature on March 15,
2030, unless earlier converted, redeemed or repurchased.
The Notes will be senior, unsecured obligations of the Company. The
Notes will rank pari passu with the Company’s existing senior notes and the Company’s revolving credit facility. The Notes
will be guaranteed (i) on a senior, unsecured basis by certain of the Company’s existing subsidiaries that guarantee on a senior
basis the Company’s revolving credit facility and the Company’s existing senior notes, and (ii) on a subordinated, unsecured
basis by certain of the Company’s existing subsidiaries that borrow under or guarantee the Company’s commercial debt facility
and guarantee on a subordinated basis the Company’s revolving credit facility and the Company’s existing senior notes.
The initial conversion rate of the Notes is 142.4501 shares of the
Company’s common stock, par value $0.01 per share (the “Common Stock”), per $1,000 principal amount of Notes (which
is equivalent to an initial conversion price of approximately $7.02 per share). The conversion rate will be subject to adjustment upon
the occurrence of certain events specified in the Indenture but will not be adjusted for accrued and unpaid interest. In addition, upon
the occurrence of a Make-Whole Fundamental Change (as defined in the Indenture) or if the Company delivers a Redemption Notice (as defined
in the Indenture), the Company will, in certain circumstances, increase the conversion rate by a number of additional shares of Common
Stock as described in the Indenture for a holder who elects to convert its Notes in connection with such Make-Whole Fundamental Change
or to convert its Notes called (or deemed called) for redemption in connection with such Redemption Notice, as the case may be.
Prior to the close of business on the business day immediately preceding
December 15, 2029, the Notes will be convertible at the option of the holders thereof only under the following circumstances: (1) during
any calendar quarter commencing after the calendar quarter ending on June 30, 2024 (and only during such calendar quarter), if the last
reported sale price of the Common Stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading
days ending on, and including, the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of
the conversion price on each applicable trading day; (2) during the five business day period after any five consecutive trading day period
(the “measurement period”) in which the trading price per $1,000 principal amount of 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) for redemption; or (4) upon the
occurrence of specified corporate events. On or after December 15, 2029 until the close of business on the second scheduled trading day
immediately preceding the maturity date, holders may convert their Notes at any time. Upon conversion, the Company will pay cash up to
the aggregate principal amount of the Notes to be converted and pay or deliver, as the case may be, cash, shares of Common Stock or a
combination of cash and shares of Common Stock, at its election, in respect of the remainder, if any, of its conversion obligation in
excess of the aggregate principal amount of the Notes being converted.
In the event of certain tax law changes, the Company may redeem the
Notes in whole, but not in part. In addition, the Company may redeem for cash all or any portion of the Notes (subject to a partial redemption
limitation), at its option, on or after March 22, 2027 and prior to the 41st scheduled trading day immediately preceding the
maturity date, if the last reported sale price of the Common Stock has been at least 130% of the conversion price then in effect for at
least 20 trading days (whether or not consecutive), including the trading day immediately preceding the date on which the Company provides
notice of redemption, during any 30 consecutive trading day period ending on, and including, the trading day immediately preceding the
date on which the Company provides the related notice of redemption. In the case of any redemption, the redemption price will be equal
to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption
date. No sinking fund is provided for the Notes.
Upon the occurrence of a Fundamental Change (as defined in the Indenture)
prior to the maturity date of the Notes, holders of the Notes may require the Company to repurchase all or a portion of the Notes for
cash at a price equal to 100% of the principal amount of the Notes to be repurchased, plus any accrued and unpaid interest to, but excluding,
the Fundamental Change Repurchase Date (as defined in the Indenture).
The Indenture contains customary terms and covenants. If an event of
default occurs and is continuing, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding Notes
may declare 100% of the principal of and accrued and unpaid interest, if any, on all of the Notes to be due and payable. In case of certain
events of bankruptcy, insolvency or reorganization involving the Company, any of it significant subsidiaries or group of subsidiaries
that, taken together, would constitute a significant subsidiary, 100% of the principal of and accrued and unpaid interest on the Notes
will automatically become due and payable immediately. The following events are considered “events of default” with respect
to the Notes, which may result in the acceleration of the maturity of the Notes:
| · | the Company defaults in any payment of interest on the Notes when due and payable and the default continues for a period of 30 days; |
| · | the Company defaults in the payment of principal on the Notes when due and payable at the stated maturity, upon optional 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 a period of three business days; |
| · | failure by the Company to issue a notice of Fundamental Change (as defined in the Indenture) or a notice of certain specified corporate
transactions, in either case when due and such failure continues for three business days; |
| · | failure by the Company or any Guarantor to comply with its obligations under the Indenture with respect to consolidation, merger and
sale of assets of the Company or the Guarantor, as the case may be; |
| · | failure by the Company to comply with any of its other agreements contained in the Notes or the Indenture for a period of 60 days
after written notice from the Trustee or the holders of at least 25% in principal amount of the Notes then outstanding has been received; |
| · | default by the Company, any of its significant subsidiaries or group of subsidiaries that, taken together, would constitute a significant
subsidiary, with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which there may be
secured or evidenced, any indebtedness for money borrowed in excess of $125,000,000 (or its foreign currency equivalent) in the aggregate
of the Company, any such significant subsidiary and/or any such group of subsidiaries, whether such indebtedness now exists or shall hereafter
be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii) constituting a failure to pay the principal
or interest of any such indebtedness when due and payable at its stated maturity, upon required repurchase, upon declaration of acceleration
or otherwise, and such acceleration shall not have been rescinded or annulled or such failure to pay shall not have been cured, as the
case may be, within 30 days after written notice to the Company by the trustee or to the Company and the trustee by the holders of at
least 25% in principal amount of the Notes then outstanding has been received; |
| · | certain events of bankruptcy, insolvency or reorganization of the Company, any of its significant subsidiaries or group of subsidiaries
that, taken together, would constitute a significant subsidiary; |
| · | a final judgment or judgments for the payment of $125,000,000 (or its foreign currency equivalent) or more (excluding any amounts
covered by insurance) in the aggregate rendered against the Company, any of its significant subsidiaries or group of subsidiaries that,
taken together, would constitute a significant subsidiary, which judgment is not discharged, bonded, paid, waived or stayed within 60
days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all
rights to appeal have been extinguished; |
| · | any guarantee by a significant subsidiary or group of subsidiaries that, taken together, would constitute a significant subsidiary,
ceases to be in full force and effect, other than in accordance with the terms of the Indenture, or a Guarantor denies or disaffirms its
obligations under its guarantee; or |
| · | all or substantially all of the undertakings, assets and revenues of the Company and any of its significant subsidiaries or group
of subsidiaries that, taken together, would constitute a significant subsidiary, taken as a whole, is condemned, seized or otherwise appropriated
(other than in accordance with its terms) by any person acting under the authority of any national, regional or local government or the
Company is, or any of its significant subsidiaries or group of subsidiaries that, taken together, would constitute a significant subsidiary,
is, prevented by such person for a period of 60 consecutive days or longer from exercising normal control over all or substantially all
of the undertaking, assets and revenues of the Company, such significant subsidiary or such group of subsidiaries, as the case may be |
The foregoing description is qualified in its entirety by reference
to the text of the Indenture and the Form of 3.125% Convertible Senior Notes due 2030, which are attached as Exhibits 4.1 and 4.2, respectively,
to this Current Report on Form 8-K and are incorporated herein by reference.
Capped Call Transactions
On March 5, 2024, concurrently with the pricing of the Notes, and on
March 6, 2024, in connection with the exercise in full by the initial purchasers of their option to purchase additional Notes, the Company
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 Company used $49.8 million of the net proceeds from the offering
of the Notes to pay the cost of the capped call transactions. The capped call transactions are expected generally to reduce the potential
dilution to the Common Stock upon any conversion of 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 initially equal to $10.80
per share (which represents a premium of 100% over the last reported sale price of the Common Stock on March 5, 2024). The capped call
transactions are separate transactions, entered into by the Company with the Option Counterparties, and are not part of the terms of the
Notes.
Copies of the forms of confirmation for the capped call transactions
are filed as Exhibit 10.1 and 10.2 to this Current Report on Form 8-K and are incorporated by reference herein. The foregoing description
of the terms of the capped call transactions does not purport to be complete and is qualified in its entirety by reference to such exhibits.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth in Item 1.01 of this Form 8-K is incorporated
by reference to this Item 2.03.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth under Item 1.01 is incorporated herein by
reference.
The Company issued and sold the Notes to the initial purchasers in
a private offering in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act. The purchase agreement
among the Company, the Guarantors and the initial purchasers of the Notes also contemplated the resale of the Notes to persons reasonably
believed to be qualified institutional buyers in reliance on Rule 144A of the Securities Act. The Company relied on these exemptions from
registration based in part on representations made by the initial purchasers of the Notes. The Notes and the shares of Common Stock issuable
upon conversion of the Notes, if any, have not been registered under the Securities Act, or any state securities laws, and the Notes and
the shares of Common Stock issuable upon conversion of the Notes, if any, may not be offered or sold in the United States absent registration
or the availability of exemptions from the registration requirements of the Securities Act and applicable state securities laws. The Company
does not intend to file a shelf registration statement for the resale of the Notes or the shares of Common Stock, if any, issuable upon
conversion of the Notes. Initially, a maximum of 74,074,040 shares of the Common Stock may be issued upon conversion of the Notes, based
on the initial maximum conversion rate of 185.1851 shares of Common Stock per $1,000 principal amount of Notes, which is subject to customary
anti-dilution adjustment provisions.
|
Item 9.01 |
Financial Statements and Other Exhibits |
(c) Exhibits
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.
Dated: March 8, 2024
|
KOSMOS ENERGY LTD. |
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By: |
/s/ Jason E. Doughty |
|
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Jason E. Doughty |
|
|
Senior Vice President, General Counsel and Corporate Secretary |
Exhibit
4.1
INDENTURE
Dated as of March 8, 2024
Among
KOSMOS ENERGY LTD.
THE SUBSIDIARY GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
3.125% Convertible
Senior Notes due 2030
TABLE OF CONTENTS
Page
Article
1
Definitions |
Section
1.01 . Definitions |
1 |
Section
1.02 . References to Interest |
18 |
Article
2
Issue, Description, Execution, Registration and Exchange of Notes |
Section
2.01 . Designation and Amount |
18 |
Section
2.02 . Form of Notes |
18 |
Section
2.03 . Date and Denomination of Notes; Payments of Interest and Defaulted Amounts |
19 |
Section
2.04 . Execution, Authentication and Delivery of Notes |
21 |
Section
2.05 . Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary |
21 |
Section
2.06 . Mutilated, Destroyed, Lost or Stolen Notes |
28 |
Section
2.07 . Temporary Notes |
29 |
Section
2.08 . Cancellation of Notes Paid, Converted, Etc |
29 |
Section
2.09 . CUSIP Numbers |
30 |
Section
2.10 . Additional Notes; Repurchases |
30 |
Article
3
Satisfaction and Discharge |
Section
3.01 . Satisfaction and Discharge |
31 |
Article
4
Particular Covenants of the Company |
Section
4.01 . Payment of Principal and 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 |
35 |
Section
4.08 . Compliance Certificate; Statements as to Defaults |
36 |
Section
4.09 . Further Instruments and Acts |
36 |
Section
4.10 . Additional Amounts. |
36 |
Article
5
Lists of Holders and Reports by the Company and the Trustee |
Section
5.01 . Lists of Holders |
40 |
Section
5.02 . Preservation and Disclosure of Lists |
40 |
Article
6
Defaults and Remedies |
Section
6.01 . Events of Default |
40 |
Section
6.02 . Acceleration; Rescission and Annulment |
42 |
Section
6.03 . Additional Interest |
43 |
Section
6.04 . Payments of Notes on Default; Suit Therefor |
44 |
Section
6.05 . Application of Monies Collected by Trustee |
46 |
Section
6.06 . Proceedings by Holders |
47 |
Section
6.07 . Proceedings by Trustee |
48 |
Section
6.08 . Remedies Cumulative and Continuing |
48 |
Section
6.09 . Direction of Proceedings and Waiver of Defaults by Majority of Holders |
48 |
Section
6.10 . Notice of Defaults |
49 |
Section
6.11 . Undertaking to Pay Costs |
49 |
Article
7
Concerning the Trustee |
Section
7.01 . Duties and Responsibilities of Trustee |
49 |
Section
7.02 . Reliance on Documents, Opinions, Etc |
51 |
Section
7.03 . No Responsibility for Recitals, Etc |
53 |
Section
7.04 . Trustee, Paying Agents, Conversion Agents, Bid Solicitation Agent or Note Registrar May Own Notes |
53 |
Section
7.05 . Monies to Be Held in Trust |
53 |
Section
7.06 . Compensation and Expenses of Trustee |
53 |
Section
7.07 . Officer’s Certificate as Evidence |
54 |
Section
7.08 . Eligibility of Trustee |
54 |
Section
7.09 . Resignation or Removal of Trustee |
55 |
Section
7.10 . Acceptance by Successor Trustee |
56 |
Section
7.11 . Succession by Merger, Etc |
56 |
Section
7.12 . Trustee’s Application for Instructions from the Company |
57 |
Article
8
Concerning the Holders |
Section
8.01 . Action by Holders |
57 |
Section
8.02 . Proof of Execution by Holders |
58 |
Section
8.03 . Who Are Deemed Absolute Owners |
58 |
Section
8.04 . Company-Owned Notes Disregarded |
58 |
Section
8.05 . Revocation of Consents; Future Holders Bound |
59 |
Article
9
Holders’ Meetings |
Section
9.01 . Purpose of Meetings |
59 |
Section
9.02 . Call of Meetings by Trustee |
59 |
Section
9.03 . Call of Meetings by Company or Holders |
60 |
Section
9.04 . Qualifications for Voting |
60 |
Section
9.05 . Regulations |
60 |
Section
9.06 . Voting |
61 |
Section
9.07 . No Delay of Rights by Meeting |
61 |
Article
10
Supplemental Indentures and Amendments |
Section
10.01 . Supplemental Indentures and Amendments Without Consent of Holders |
61 |
Section
10.02 . Supplemental Indentures and Amendments with Consent of Holders |
63 |
Section
10.03 . Effect of Supplemental Indentures and Amendments |
64 |
Section
10.04 . Notation on Notes |
64 |
Section
10.05 . Evidence of Compliance of Supplemental Indenture or Amendment to Be Furnished Trustee |
64 |
Article
11
Consolidation, Merger, Sale, Conveyance and Lease |
Section
11.01 . Company May Consolidate, Etc. on Certain Terms. |
65 |
Section
11.02 . Any Guarantor May Consolidate, Etc. on Certain Terms. |
66 |
Article
12 Immunity of Incorporators, Stockholders, Officers and Directors |
Section
12.01 . Indenture and Notes Solely Corporate Obligations |
68 |
Article
13
Guarantees |
Section
13.01 . Guarantee |
68 |
Section
13.02 . Benefits Acknowledged |
68 |
Section
13.03 . Release of Note Guarantees |
68 |
Section
13.04 . Security Documents |
69 |
Section
13.05 . Security and Intercreditor Agent; Intercreditor Agreements |
70 |
Section
13.06 . Agreement to Subordinate |
74 |
Section
13.07 . Additional Note Guarantees |
74 |
Article
14
Conversion of Notes |
Section
14.01 . Conversion Privilege |
74 |
Section
14.02 . Conversion Procedure; Settlement Upon Conversion. |
78 |
Section
14.03 . Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
or Redemption Notice |
83 |
Section
14.04 . Adjustment of Conversion Rate |
86 |
Section
14.05 . Adjustments of Prices |
95 |
Section
14.06 . Shares to Be Fully Paid |
95 |
Section
14.07 . Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. |
95 |
Section
14.08 . Certain Covenants |
97 |
Section
14.09 . Responsibility of Trustee |
98 |
Section
14.10 . [Reserved]. |
99 |
Section
14.11 . Stockholder Rights Plans |
99 |
Section
14.12 . Exchange in Lieu of Conversion |
99 |
Article
15
Repurchase of Notes at Option of Holders |
Section
15.01 . [Intentionally Omitted]. |
100 |
Section
15.02 . Repurchase at Option of Holders Upon a Fundamental Change |
100 |
Section
15.03 . Withdrawal of Fundamental Change Repurchase Notice |
103 |
Section
15.04 . Deposit of Fundamental Change Repurchase Price |
103 |
Section
15.05 . Covenant to Comply with Applicable Laws Upon Repurchase of Notes |
104 |
Article
16
Redemption |
Section
16.01 . Redemption for Changes in the Tax Laws of the Relevant Taxing Jurisdiction |
105 |
Section
16.02 . Optional Redemption on or after March 22, 2027 |
106 |
Section
16.03 . Notice of Redemption |
106 |
Section
16.04 . Payment of Notes Called for Redemption |
108 |
Section
16.05 . Restrictions on Redemption |
109 |
Section
16.06 . Sinking Fund |
109 |
Article
17
Miscellaneous Provisions |
Section
17.01 . Provisions Binding on Company’s or Guarantor’s Successors |
109 |
Section
17.02 . Official Acts by Successor Company |
109 |
Section
17.03 . Addresses for Notices, Etc |
109 |
Section
17.04 . Governing Law; Jurisdiction |
110 |
Section
17.05 . Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee |
110 |
Section
17.06 . Legal Holidays |
111 |
Section
17.07 . No Security Interest Created |
111 |
Section
17.08 . Benefits of Indenture |
111 |
Section
17.09 . Table of Contents, Headings, Etc |
111 |
Section
17.10 . Authenticating Agent |
111 |
Section
17.11 . Execution in Counterparts |
112 |
Section
17.12 . Severability |
113 |
Section
17.13 . Waiver of Jury Trial |
113 |
Section
17.14 . Force Majeure |
113 |
Section
17.15 . Calculations |
113 |
Section
17.16 . USA PATRIOT Act |
114 |
Section
17.17 . Entire Agreement |
114 |
Section
17.18 . Withholding Taxes |
114 |
EXHIBIT
Exhibit A Form of Note |
A-1 |
INDENTURE dated
as of March 8, 2024 among KOSMOS ENERGY LTD., a Delaware corporation, as issuer (the “Company,” as more fully set
forth in Section 1.01), the Guarantors listed on the signature pages hereto and WILMINGTON TRUST, 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 3.125% Convertible Senior Notes due 2030 (the “Notes”),
initially in an aggregate principal amount not to exceed $400,000,000, and each of the Guarantors has duly authorized the issuance of
its Note Guarantee, and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered,
the Company and the Guarantors have 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 the
valid, binding and legal obligations of the Company and the Guarantors, have been done and performed, and the execution of this Indenture
and the issuance hereunder of the Notes and the Note Guarantees 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, each of the Company and the Guarantors, as applicable,
covenants and agrees with the Trustee for the equal and proportionate benefit of the respective Holders from time to time of the Notes
(except as otherwise provided below), as follows:
Article
1
Definitions
Section 1.01.
Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. The words “herein,” “hereof,” “hereunder” and words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other subdivision. The terms defined in this Article include
the plural as well as the singular.
“1% Exception”
means the provisions set forth in Section 14.04(k).
“7.125%
Senior Notes Indenture” means the senior notes indenture, dated as of April 4, 2019, by and among the Company, the subsidiary
guarantors from time-to-time party thereto, Wilmington Trust, National Association, as trustee, paying agent, registrar and transfer
agent and Banque Internationale à Luxembourg S.A., as Luxembourg listing agent, Luxembourg paying agent and Luxembourg transfer
agent, as amended, supplemented or restated from time to time.
“7.500%
Senior Notes Indenture” means the senior notes indenture, dated as of March 4, 2021, by and among the Company, the subsidiary
guarantors from time to time party thereto, Wilmington Trust, National Association, as trustee, paying agent, registrar and transfer
agent and Banque Internationale à Luxembourg S.A., as Luxembourg listing agent, Luxembourg paying agent and Luxembourg transfer
agent, as amended, supplemented or restated from time to time.
“7.750%
Senior Notes Indenture” means the senior notes indenture, dated as of October 26, 2021, by and among the Company, the subsidiary
guarantors from time to time party thereto, Wilmington Trust, National Association, as trustee, paying agent, registrar and transfer
agent and Banque Internationale à Luxembourg S.A., as Luxembourg listing agent, Luxembourg paying agent and Luxembourg transfer
agent, as amended, supplemented or restated from time to time.
“Additional
Amount” shall have the meaning specified in Section 4.10.
“Additional
Interest” means all amounts, if any, payable pursuant to Section 4.06(d), Section 4.06(e) and Section
6.03, as applicable.
“Additional
Shares” shall have the meaning specified in Section 14.03(a).
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified
Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing. Notwithstanding anything to the contrary herein, the determination of whether one Person
is an “Affiliate” of another Person for purposes of this Indenture shall be made based on the facts at the time such
determination is made or required to be made, as the case may be, hereunder.
“Agent”
means any Bid Solicitation Agent, Custodian, Conversion Agent, Note Registrar, Paying Agent or co-Note registrar.
“Authorized
Denomination” shall have the meaning specified in Section 2.03(a).
“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
Trustee shall initially act as the Bid
Solicitation Agent. The Company may, however, appoint another Person to act as Bid Solicitation Agent at any time without prior notice
to Holders.
“Board
of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business
Day” means, with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of
New York or commercial banks in New York are authorized or required by law or executive order to close or be closed.
“Called
Notes” means Notes called for redemption pursuant to Article 16 or 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; provided that debt securities that are convertible
into or exchangeable for Capital Stock shall not constitute Capital Stock prior to their conversion or exchange, as the case may be.
“Cash Settlement”
shall have the meaning specified in Section 14.02(a).
“Change
in Tax Law” shall have the meaning specified in Section 16.01(a).
“Clause
A Distribution” shall have the meaning specified in Section 14.04(c).
“Clause
B Distribution” shall have the meaning specified in Section 14.04(c).
“Clause
C Distribution” shall have the meaning specified in Section 14.04(c).
“close
of business” means 5:00 p.m. (New York City time).
“Combination
Settlement” shall have the meaning specified in Section 14.02(a).
“Commission”
means the U.S. Securities and Exchange Commission.
“Common
Equity” of any Person means Capital Stock of such Person that is generally entitled (a) to vote on the election of directors
of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners,
managers or others that will control the management or policies of such Person.
“Common
Stock” means the common stock of the Company, par value $0.01 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 the Company’s Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, Chief Accounting Officer, the Treasurer, any director of the Board of the Directors, the General Counsel or
any Vice President (whether or not designated by a number or numbers or word or words added before or after the title “Vice President”),
and delivered to the Trustee.
“Conversion
Agent” shall have the meaning specified in Section 4.02.
“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
Revolver” means that certain Revolving Credit Facility Agreement, dated as of March 31, 2022, among the Company, Kosmos Energy
Operating, Kosmos Energy International, Kosmos Energy Development, Kosmos Energy Ghana HC, Kosmos Energy Finance International, Kosmos
Energy Equatorial Guinea, Kosmos Energy GOM Holdings, LLC, Kosmos Energy Gulf of Mexico, LLC, Kosmos Energy Gulf of Mexico Management,
LLC, Kosmos Energy Gulf of Mexico Operations, LLC, Kosmos Energy Ghana Holdings Limited and Kosmos Energy Ghana Investments, Societe
Generale, London Branch, The Standard Bank of South Africa Limited, N.B.S.A. Limited, Standard Chartered Bank, Natixis, Barclays Bank
plc, Bank of America, N.A., London Branch, Ecobank Ghana plc and Glencore Energy UK LTD, as Mandated Lead Arrangers, ING Bank N.V., as
Facility Agent, Credit Agricole Corporate and Investment Bank, as Security and Intercreditor Agent, and the other financial institutions
listed therein, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith,
in each case as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time.
“Corporate
Trust Office” means the corporate trust office of the Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 1310 Silas Deane Highway, Wethersfield, Connecticut 06109, Attention: Kosmos Energy Ltd.
Administrator, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor trustee (or such other address as such successor trustee may designate from time to
time by notice to the Holders and the Company).
“Custodian”
means the Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.
“Daily
Conversion Value” means, for each of the 40 consecutive VWAP Trading Days during the Observation Period, 2.50% of the product
of (a) the Conversion Rate in effect immediately after the close business on such VWAP Trading Day and (b) the Daily VWAP for such VWAP
Trading Day.
“Daily
Measurement Value” means the Specified Dollar Amount (if any), divided by 40.
“Daily
Settlement Amount,” for each of the 40 consecutive VWAP Trading Days during the Observation Period, shall consist of:
(a) cash
in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such VWAP Trading Day; and
(b) if
the Daily Conversion Value exceeds the Daily Measurement Value, a number of shares of Common Stock equal to (i) the difference between
the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for such VWAP Trading Day.
“Daily
VWAP” means, for each of the 40 consecutive VWAP Trading Days during the relevant Observation Period, the per share volume-weighted
average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “KOS <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 VWAP Trading Day (or if such volume-weighted average price is unavailable, the
market value of one share of the Common Stock on such VWAP 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.
“Deed of
Guarantee” means the Deed of Guarantee and Indemnity, originally dated November 23, 2012, as amended on December 20, 2018 and
on April 4, 2019, among the Company, Kosmos Energy Operating, Kosmos Energy International, Kosmos Energy Development, Kosmos Energy Ghana
HC, Kosmos Energy Finance International and the Security and Intercreditor Agent, and acceded to (i) on or about April 4, 2019 by the
Senior Notes Trustees, Kosmos Energy Equatorial Guinea, Kosmos Energy GOM Holdings, LLC, Kosmos Energy Gulf of Mexico, LLC, Kosmos Energy
Gulf of Mexico Management, LLC and Kosmos Energy Gulf of Mexico Operations, LLC, (ii) on or about November 23, 2021 by Kosmos Energy
Ghana Holdings Limited and Kosmos Energy Ghana Investments and (iii) on or about the date of this Indenture by the Trustee, and as the
same may be amended, supplemented, or otherwise modified in a manner not materially adverse to the Holders when taken as a whole, as
compared to the Deed of Guarantee as in effect immediately prior to such amendment, supplement or modification.
“Deed of
Guarantee Accession Agreement” means that certain accession agreement to the Deed of Guarantee dated the date of this Indenture
among the Company, Kosmos Energy Operating, Kosmos Energy International, Kosmos Energy Development, Kosmos Energy Ghana HC, Kosmos Energy
Finance International, Kosmos Energy Equatorial Guinea, Kosmos Energy GOM Holdings, LLC, Kosmos Energy Gulf of Mexico, LLC, Kosmos Energy
Gulf of Mexico Management, LLC and Kosmos Energy Gulf of Mexico Operations, LLC, Kosmos Energy Ghana Holdings Limited, Kosmos Energy
Ghana Investments, the Trustee on behalf of the Holders and the Security and Intercreditor Agent on behalf of each beneficiary to the
Deed of Guarantee.
“Deemed
Redemption” shall have the meaning specified in Section 14.01(b)(v).
“Default”
means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Defaulted
Amounts” means any amounts on any Note (including, without limitation, the Redemption Price, cash consideration due upon conversion,
the Fundamental Change Repurchase Price, principal and interest) 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” means or include such successor.
“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.
“Event
of Default” shall have the meaning specified in Section 6.01.
“Ex-Dividend
Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market,
regular way, without the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from
the seller of Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“Exchange
Consideration” shall have the meaning specified in Section 14.12(a).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
in Lieu of Conversion” shall have the meaning specified in Section 14.12(a).
“Facility”
means that certain Facility Agreement, originally dated March 28, 2011, as amended on February 14, 2012, April 27, 2012, June 25, 2012
and April 3, 2013 and amended and restated as of November 23, 2012, January 14, 2014 and March 14, 2014 and as further amended on September
30, 2014 and October 1, 2015 and amended and restated on February 22, 2018 and as further amended on October 19, 2018, November 30, 2018,
December 20, 2018, January 31, 2019, April 7, 2020, July 31, 2020 and as amended on August 12, 2020 and amended and restated on May 12,
2021, and as further amended and restated on November 23, 2022 and October 19, 2023 among Kosmos Energy Finance International, Kosmos
Energy Equatorial Guinea, Kosmos Energy Operating, Kosmos Energy International, Kosmos Energy Development, Kosmos Energy Ghana HC, Kosmos
Energy Ghana Holdings Limited, Kosmos Energy Ghana Investments and Credit Agricole Corporate and Investment Bank, as Security Agent and
Intercreditor Agent, Standard Chartered Bank, as Facility Agent, and the other financial institutions listed therein, including any related
notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each case as amended, restated,
modified, renewed, refunded, replaced or refinanced from time to time.
“FATCA”
shall have the meaning specified in Section 4.10(a)(vii).
“Finance
Document” means any of this Indenture or any Security Document.
“Form of
Assignment and Transfer” means the “Form of Assignment and Transfer” in substantially the form 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” in substantially
the form 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” in substantially the form 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) 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,
files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct
or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Common Stock representing more than
50% of the voting power of the Common Stock;
(b) the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than 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 Wholly Owned Subsidiaries; provided, however, that a transaction described in clause (A) or (B) in
which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own, directly or indirectly,
more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee or the parent thereof immediately
after such transaction in substantially the same proportions (relative to each other) as such ownership immediately prior to such transaction
shall not be a Fundamental Change pursuant to this clause (b);
(c) the
stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or
(d) the
Common Stock (or other Common Equity or depositary receipts in respect of Common Equity, in each case, 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 (a) or clause (b) above shall not constitute a Fundamental Change, if at least 90%
of the consideration received or to be received by the common stockholders of the Company, excluding cash payments for fractional shares
and cash payments made pursuant to dissenters’ appraisal rights, in connection with such transaction or transactions consists of
shares of Common Equity or depositary receipts in respect of Common Equity, in each case, 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
pursuant to dissenters’ appraisal rights (subject to the provisions of Section 14.02(a)). If any transaction in which the
Common Stock is replaced by the securities of another entity occurs, following completion of any related Make-Whole Fundamental Change
Period (or, in the case of a transaction that would have been a Fundamental Change or a Make-Whole Fundamental Change but for the proviso
immediately following clause (d) of this definition, following the effective date of such transaction) references to the Company
in this definition shall instead be references to such other entity.
Solely for the purposes
of this definition (but, for the avoidance of doubt, not for purposes of the definition of Make-Whole Fundamental Change), (x) any transaction
or event
described in both clause (a) and in
clause (b)(A) or (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).
“Fundamental
Change Repurchase Price” shall have the meaning specified in Section 15.02(a).
“given,”
with respect to any notice to be given to a Holder pursuant to this Indenture, shall mean notice (x) given to the Depositary (or its
designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic mail in accordance with
accepted practices or procedures at the Depositary (in the case of a Global Note) or (y) mailed to such Holder by first class mail, postage
prepaid, or sent via overnight courier 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).
“Guarantor”
means (i) the Senior Guarantors and the Subordinated Guarantors, (ii) any other Subsidiary of the Company that becomes a Guarantor by
providing a Note Guarantee in accordance with the provisions of this Indenture and the Security Documents and (iii) the respective successors
and assigns of the foregoing, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions
of this Indenture and the Security Documents.
“Holder,”
as applied to any Note, or other similar terms (but excluding the term “beneficial holder”), means any Person in whose name
at the time a particular Note is registered on the Note Register.
“Indenture”
means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented.
“Initial
Purchasers” means BofA Securities, Inc., Barclays Capital Inc., Absa Bank Limited, ING Financial Markets LLC, Natixis Securities
Americas LLC, Nedbank Limited, Standard Chartered Bank, The Standard Bank of South Africa Limited, Macquarie Capital (USA) Inc., MUFG
Securities Americas Inc. and Stifel, Nicolaus & Company, Incorporated.
“Intercreditor
Agreements” means the KEFI Intercreditor Agreement and the KEL Intercreditor Agreement.
“Interest
Payment Date” means each March 15 and September 15 of each year, beginning on September 15, 2024.
“KEFI HY
Noteholder” shall have the meaning assigned to the term “HY Noteholder” in the KEFI Intercreditor Agreement.
“KEFI HY
Noteholder Trustee” shall have the meaning assigned to the term “HY Noteholder Trustee” in the KEFI Intercreditor
Agreement.
“KEFI Intercreditor
Accession Agreement” means that certain accession agreement, dated on or about the date of this Indenture, to the KEFI Intercreditor
Agreement between the Trustee and Credit Agricole Corporate and Investment Bank, as security and intercreditor agent.
“KEFI Intercreditor
Agreement” means that Intercreditor Agreement, dated as of November 23, 2012, as amended on December 20, 2018 and on April
4, 2019, among the Company, Kosmos Energy Finance International, Credit Agricole Corporate and Investment Bank, as security agent, security
and intercreditor agent and proceeds agent, ING Bank N.V., the Trustee and the Senior Notes Trustees (as supplemented by the KEFI Intercreditor
Accession Agreement), as the same may be amended, supplemented, or otherwise modified in a manner not materially adverse to the Holders
when taken as a whole, as compared to the KEFI Intercreditor Agreement as in effect immediately prior to such amendment, supplement or
modification.
“KEL HY
Noteholder” shall have the meaning assigned to the term “HY Noteholder” in the KEL Intercreditor Agreement.
“KEL HY
Noteholder Trustee” shall have the meaning assigned to the term “HY Noteholder Trustee” in the KEL Intercreditor
Agreement.
“KEL Intercreditor
Accession Agreement” means that certain accession agreement, dated on or about the date of this Indenture, to the KEL Intercreditor
Agreement between the Trustee and Credit Agricole Corporate and Investment Bank, as security and intercreditor agent.
“KEL Intercreditor
Agreement” means the KEL Intercreditor and Security Sharing Agreement, dated as of August 1, 2014, as amended and restated
on December 20, 2018 and as amended on April 4, 2019, among Credit Agricole Corporate and Investment Bank, as security and intercreditor
agent, ING Bank N.V., the Trustee, the Senior Notes Trustees and the Company (as supplemented by the KEL Intercreditor Accession Agreement),
as the same may be amended, supplemented, or otherwise modified in a manner not materially adverse to the Holders when taken as a whole,
as compared to the KEL Intercreditor Agreement as in effect immediately prior to such amendment, supplement or modification.
“Last Reported
Sale Price” of the Common Stock (or other security for which a closing sale price must be determined) on any date means the
closing sale price (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) per share of Common
Stock (or such other security) 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 per share of 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 per share of 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 the regular trading session trading hours.
“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 (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common
Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior
to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for more than one half-hour period in the aggregate
during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted
by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common
Stock.
“Maturity
Date” means March 15, 2030.
“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 Guarantee”
means, individually, any guarantee of payment of the Notes and the Company’s other obligations under this Indenture by a Guarantor
pursuant to the terms of this Indenture and any other Security Documents and any supplemental indenture or amendment thereto, and, collectively,
all such guarantees.
“Note Register”
shall have the meaning specified in Section 2.05(a).
“Note Registrar”
shall have the meaning specified in Section 2.05(a).
“Notice
of Conversion” shall have the meaning specified in Section
14.02(b)(ii)(A).
“Observation
Period” with respect to any Note surrendered for conversion means: (i) subject to clause (ii) below, if the relevant Conversion
Date occurs prior to December 15, 2029, the 40 consecutive VWAP Trading Day period beginning on, and including, the second VWAP Trading
Day immediately succeeding such Conversion Date; (ii) with respect to any Called Notes, if the relevant Conversion Date occurs during
a Redemption Period with respect to such Called Notes, the 40 consecutive VWAP Trading Days beginning on, and including, the 41st Scheduled
Trading Day immediately preceding the related Redemption Date; and (iii) subject to clause (ii) above, if the relevant Conversion Date
occurs on or after December 15, 2029, the 40 consecutive VWAP Trading Days beginning on, and including, the 41st Scheduled Trading Day
immediately preceding the Maturity Date.
“Offering
Memorandum” means the preliminary offering memorandum dated March 4, 2024, as supplemented by the related pricing term sheet
dated March 5, 2024, relating to the offering and sale of the Notes.
“Officer”
means, with respect to the Company, the Chairman or any Director of the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the Chief Operating Officer, the President, any Executive Vice President, Senior Vice President or Vice President (whether or
not designated by a number or numbers or word or words added before or after the title “Vice President”), the Treasurer or
the Secretary, or any other officer of the Company designated by any such individuals.
“Officer’s
Certificate,” when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed
on behalf of the Company by an Officer of the Company. Each such certificate shall include the statements provided for in Section
17.05 if and to the extent required by the provisions of such Section.
“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, reasonably
acceptable to the Trustee 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 16.02(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 canceled by the Trustee or accepted by the Trustee for cancellation;
(b) Notes,
or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent);
(c) Notes
that have been paid pursuant to Section 2.06 or Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06 unless proof satisfactory to the Trustee is presented that any
such Notes are held by protected purchasers in due course;
(d) Notes
converted pursuant to Article 14 and required to be cancelled pursuant
to Section 2.08; and
(e) Notes
redeemed pursuant to Article 16.
“Partial
Redemption Limitation” shall have the meaning specified in Section 16.02(b).
“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 Authorized Denominations.
“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.
“Redemption”
means a Tax Redemption or an Optional Redemption.
“Redemption
Date” shall have the meaning specified in Section 16.03(a).
“Redemption
Notice” shall have the meaning specified in Section 16.03(a).
“Redemption
Period” means, with respect to any Redemption, the period from, and including, the date the Company delivers the Redemption
Notice for such Redemption, until the close of business on the second Scheduled Trading Day immediately preceding the related Redemption
Date (or, if the Company defaults in the payment of the Redemption Price, until the Redemption Price has been paid or duly provided for).
“Redemption
Price” means, for any Notes to be redeemed pursuant to Article 16, 100% of the principal amount of such Notes, plus
accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (unless such Redemption Date falls after a
Regular Record Date but on or prior to the immediately succeeding Interest Payment Date, in which case interest accrued on such Notes
to the Interest Payment Date will be paid to Holders of record of such Notes as of the close of business on such Regular Record Date,
and the Redemption Price will be equal to 100% of the principal amount of such Notes).
“Reference
Property” shall have the meaning specified in Section 14.07(a).
“Regular
Record Date,” with respect to any Interest Payment Date, means the March 1 or September 1 (whether or not such day is a Business
Day) immediately preceding the applicable March 15 or September 15 Interest Payment Date, respectively.
“Relevant
Date” means, with respect to any payment on a Note, whichever is the later of (i) the date on which such payment first becomes
due and (ii) if the full amount payable has not been received by the Trustee on or prior to such date, the date on which notice is given
to the Holders that the full amount has been received by the Trustee.
“Relevant
Taxing Jurisdiction” shall have the meaning specified in Section 4.10(a).
“Resale
Restriction Termination Date” shall have the meaning specified in Section 2.05(c).
“Responsible
Officer” means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee, including
any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee
who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or
to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject
and, in each case, who shall have direct responsibility for the administration of this Indenture.
“Restricted
Securities” shall have the meaning specified in Section 2.05(c).
“Rule 144”
means Rule 144 as promulgated under the Securities Act.
“Rule 144A”
means Rule 144A as promulgated under the Securities Act.
“Scheduled
Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange
or market on which the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading,
“Scheduled Trading Day” means a Business Day.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Security
and Intercreditor Agent” means Credit Agricole Corporate and Investment Bank, as Security and Intercreditor Agent under the
Intercreditor Agreements and any successor thereto.
“Security
Documents” means the Intercreditor Agreements, the Deed of Guarantee and all other security agreements, pledge agreements,
collateral assignments, mortgages, collateral agency agreements, intercreditor agreements, deed of trust or other grants or transfers
for security executed and delivered by the Company, any Guarantor or any other obligor under the Senior Notes, the “Note Guarantees”
thereunder, the Notes or the Note Guarantees relating to a guarantee or creating (or purporting to create) a lien upon collateral in
favor of the Security and Intercreditor Agent for the benefit of the holders of parity debt obligations, in each case, as amended, modified,
renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms.
“Senior
Debt” means, whether outstanding on the date of this Indenture or thereafter issued, created, incurred or assumed, the indebtedness
under the Facility; provided that Senior Debt will not include: any indebtedness, guarantee or obligation of the Company that
is expressly subordinate or junior in right of payment to any other indebtedness, guarantee or obligation of the Company.
“Senior
Guarantor” means, as of the date of this Indenture, each of Kosmos Energy GOM Holdings, LLC, Kosmos Energy Gulf of Mexico,
LLC, Kosmos Energy Gulf of Mexico Management, LLC and Kosmos Energy Gulf of Mexico Operations, LLC, subject to Section 13.03,
Section 13.06 and Section 13.07.
“Senior
Notes” means, collectively, the Company’s 7.125% Senior Notes due 2026 issued pursuant to the 7.125% Senior Notes Indenture,
the Company’s 7.500% Senior Notes due 2028 issued pursuant to the 7.500% Senior Notes Indenture and the Company’s 7.750%
Senior Notes due 2027 issued pursuant to the 7.750% Senior Notes Indenture.
“Senior
Notes Indentures” means, collectively, the 7.125% Senior Notes Indenture, the 7.500% Senior Notes Indenture and the 7.750%
Senior Notes Indenture.
“Senior
Notes Trustee” shall have, with respect to any Senior Notes, the meaning assigned to the term “Trustee” in the
relevant Senior Notes Indenture.
“Settlement
Amount” has the meaning specified in Section 14.02(a)(iv).
“Settlement
Method” means, with respect to any conversion of Notes, Cash Settlement or Combination Settlement, as elected (or deemed to
have been elected) by the Company.
“Settlement
Method Election Deadline” has the meaning specified in Section 14.02(a)(iii).
“Settlement
Notice” has the meaning specified in Section 14.02(a)(iii).
“Share
Exchange Event” has the meaning specified in Section 14.07(a).
“Significant
Subsidiary” means any Subsidiary of the Company that is a “significant subsidiary” within the meaning of Rule 1-02(w)
under Regulation S-X promulgated pursuant to the Securities Act.
“Specified
Dollar Amount” means, in respect of the conversion of any Note, the maximum cash amount (excluding cash in lieu of any fractional
share) per $1,000 principal amount of such Notes to be received upon conversion as specified in the Settlement Notice related to any
converted Notes (or as the Company is otherwise deemed to have elected); provided that the Specified Dollar Amount shall be no
less than $1,000 per $1,000 principal amount of 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).
“Subordinated
Guarantor” means, as of the date of this Indenture, each of Kosmos Energy Operating, Kosmos Energy International, Kosmos Energy
Development, Kosmos Energy Ghana HC, Kosmos Energy Ghana Holdings Limited, Kosmos Energy Equatorial Guinea, Kosmos Energy Finance International
and Kosmos Energy Ghana Investments, , subject to Section 13.03, Section 13.06 and Section 13.07.
“Subsidiary”
means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which
more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more Subsidiaries of such Person
(or a combination thereof).
“Successor
Company” shall have the meaning specified in Section 11.01(a)(i)(A).
“Successor
Guarantor” shall have the meaning specified in Section 11.02(a)(i)(A).
“Tax Redemption”
shall have the meaning specified in Section 16.01(a).
“Trading
Day” means 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 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.
“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 $2,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date
from three independent nationally recognized securities dealers the Company selects for this purpose, which may include one or more of
the Initial Purchasers; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent but two such
bids are obtained, then the average of the two bids shall be used as the Trading Price, and if only one such bid can reasonably be obtained
by the Bid Solicitation Agent, that one bid shall be used as the Trading Price. If the Bid Solicitation Agent cannot reasonably obtain
at least one bid for $2,000,000 principal amount of Notes from a nationally recognized securities dealer on any determination date, then
the Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate on such date of determination.
“transfer”
shall have the meaning specified in Section 2.05(c).
“Trigger
Event” shall have the meaning specified in Section 14.04(c).
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Indenture;
provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust
Indenture Act” means, 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, it its capacity as such, 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).
“Valid
Payment Date” means any day other than a Saturday, a Sunday or a day on which banking institutions in the place of payment
are authorized or required by law or executive order to close or be closed.
“Valuation
Period” shall have the meaning specified in Section 14.04(c).
“Voting
Stock” means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of such Person.
“VWAP Trading
Day” means a day on which (i) there is no Market Disruption Event and (ii) 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. If the
Common Stock is not so listed or admitted
for trading, “VWAP Trading Day” means a Business Day.
“Wholly
Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this
definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a
reference to “100%”.
Section 1.02.
References to Interest. Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in this Indenture
shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of
Section 4.06(d), Section 4.06(e) and Section 6.03. Unless the context otherwise requires, any express mention of
Additional Interest in any provision hereof shall not be construed as excluding Additional Interest in those provisions hereof where
such express mention is not made.
Article
2
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01.
Designation and Amount. The Notes shall be designated as the “3.125% Convertible Senior Notes due 2030.” The aggregate
principal amount of Notes that may be authenticated and delivered under this Indenture is initially limited to $400,000,000, subject
to Section 2.10 and except for Notes authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu
of other Notes to the extent expressly permitted hereunder.
Section 2.02.
Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in
the respective forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated
in and made a part of this Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby. In the case of any conflict between this Indenture and
a Note, the provisions of this Indenture shall govern and control to the extent of such conflict.
Any Global Note
may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions
of this Indenture as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes
may be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Notes are subject.
Any of the Notes
may have such letters, numbers or other marks of identification and such notations, legends or endorsements as the Officer executing
the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule
or regulation made pursuant thereto
or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed or designated
for issuance, or to conform to usage or to indicate any special limitations or restrictions to which any particular Notes are subject.
Each Global Note
shall represent such principal amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent
the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, conversions,
transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such manner
and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global Note shall be made
to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders eligible to receive payment
is provided for herein.
Section 2.03.
Date and Denomination of Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without
coupons in minimum denominations of $1,000 principal amount and in integral multiples of $1,000 in excess thereof (an “Authorized
Denomination”). Each Note shall be dated the date of its authentication and shall bear interest from the date specified on
the face of such Note. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months
and, for partial months, on the basis of the number of days actually elapsed in a 30-day month.
(b)
The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment
Date. The principal amount of any Note (x) in the case of any Physical Note, shall be payable at the office or agency of the Company
maintained by the Company for such purposes in the continental United States, which shall initially be the Corporate Trust Office and
(y) in the case of any Global Note, shall be payable by wire transfer of immediately available funds to the account of the Depositary
or its nominee. The Company shall pay or cause the Paying Agent to pay interest (i) on any Physical Notes (A) to Holders holding Physical
Notes having an aggregate principal amount of $5,000,000 or less, by check mailed to the Holders of these Notes at their address as it
appears in the Note Register and (B) to Holders holding Physical Notes having an aggregate principal amount of more than $5,000,000,
either by check mailed to each Holder or, upon application by such a Holder to the Note Registrar not later than the relevant Regular
Record Date, by wire transfer in immediately available funds to that Holder’s account within the United States, which application
shall remain in effect until the Holder notifies, in writing, the Note Registrar to the contrary or (ii) on any Global Note by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
(c)
Any Defaulted Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest
per annum at the rate borne by the Notes, subject to the enforceability thereof under applicable law, from, and including, such relevant
payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its election in each case,
as provided in clause (i) or (ii) below:
(i)
The Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall be fixed
in the manner set forth in the remainder of this Section 2.03(c)(i). The Company shall notify the Trustee in writing
of the amount of the Defaulted Amounts proposed to be paid on each Note and the date of the proposed payment (which shall be not less
than 25 days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts
or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Amounts pursuant to this Section 2.03(c)(i).
Thereupon the Company shall fix a special record date for the payment of such Defaulted Amounts which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment (unless the Trustee shall consent to an earlier date). The Company shall promptly notify the Trustee of
such special record date and the Company, or the Trustee at the request of and in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be delivered to each Holder not less
than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date
therefor having been so delivered, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on such special record date and shall no longer be payable pursuant to the
following clause (ii) of this Section 2.03(c).
(ii)
The Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as
may be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, in such manner of payment as it may be deemed practicable by the Trustee.
Notwithstanding
the foregoing, any interest which is paid prior to the expiration of the 30-day period set forth in Section 6.01(a) shall be paid
to Holders as of the record date for the Interest Payment Date for which interest has not been paid.
The Trustee shall
not be under any duty or responsibility to any Holders to determine the Defaulted Amounts, or with respect to the nature, extent or calculation
of the 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 at least one Officer of the Company.
At any time and
from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes, without any further action by the Company hereunder.
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 officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section
17.10), shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee
(or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence that the Note so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.
In case any Officer
of the Company who shall have signed any of the Notes shall cease to be such Officer before the Notes so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Notes had not ceased to be such Officer of the Company; and any Note may be signed on behalf of
the Company by such persons as, at the actual date of the execution of such Note, shall be the Officers of the Company, although at the
date of the execution of this Indenture any such person was not such an Officer.
Section 2.05.
Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office or in any other office or agency of the Company designated
pursuant to Section 4.02, the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of
transfers of Notes. Such register shall be in written form or in any form capable of being converted into written form within a reasonable
period of time. The Trustee is hereby initially appointed the “Note Registrar” for the purpose of registering Notes
and transfers of Notes as herein provided. The Company may appoint one or more co-Note Registrars in accordance with Section 4.02.
Upon surrender for
registration of transfer of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer
set forth in this Section 2.05, the Company shall execute, and, upon a Company Order, the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Notes of any
Authorized Denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.
Notes may be exchanged
for other Notes of any Authorized Denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged
at any such office or agency maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange,
the Company shall execute, and, upon a Company Order, the Trustee shall authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive, bearing registration numbers not contemporaneously outstanding.
All Notes presented
or surrendered for registration of transfer or for exchange, repurchase 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 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 or Trustee may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar
issue or transfer tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or
registration of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.
None of the Company,
the Trustee, the Note Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered
for conversion or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15 or
(iii) any Notes selected for Redemption in accordance with Article
16, except the unredeemed portion of any Note being redeemed in part.
All Notes issued
upon any registration of transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer
or exchange.
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 transfer between or among Depositary
participants or beneficial owners of interest 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.
None of the Company,
the Trustee, Paying Agent, Conversion Agent or any agent of them shall have any responsibility or liability for any actions taken or
not taken by the Depositary.
(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. The transfer and exchange
of beneficial interests in a Global Note that does not involve the issuance of a Physical Note shall be effected through the Depositary
(but not the Trustee or the Custodian) in accordance with this Indenture (including the restrictions on transfer set forth herein) and
the procedures of the Depositary therefor.
(c)
Every Note that bears or is required under this Section 2.05(c) to bear the legend set forth in this Section 2.05(c)
(together with any Common Stock issued upon conversion of the Notes that is required to bear the legend set forth in Section 2.05(d),
collectively, the “Restricted Securities”) shall be subject to the restrictions on transfer set forth in this Section
2.05(c) (including the legend set forth below), unless such restrictions on transfer shall be eliminated or otherwise waived by written
consent of the Company, and the Holder of each such Restricted Security, by such Holder’s acceptance thereof, agrees to be bound
by all such restrictions on transfer. As used in this Section 2.05(c) and Section 2.05(d), the term “transfer”
encompasses any sale, pledge, transfer or other disposition whatsoever of any Restricted Security (or any voting or economic rights thereto
or any beneficial interest therein).
Until the date (the
“Resale Restriction Termination Date”) that is the later of (1) the date that is one year after the last date of original
issuance of the Notes, or such shorter period of time as permitted by Rule 144 or any successor provision thereto, and (2) such later
date, if any, as may be required by applicable law, any certificate evidencing such Note (and all securities issued in exchange therefor
or substitution thereof, other than Common Stock, if any, issued upon conversion thereof, which shall bear the legend set forth in Section
2.05(d), if applicable) shall bear a legend in substantially the following form (unless such Notes have been transferred pursuant to
a registration statement that has become or been declared effective under the Securities Act and that continues to be effective at the
time of such transfer, or sold pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force
under the Securities Act, or unless otherwise agreed by the Company in writing, with written notice thereof to the Trustee):
THIS SECURITY AND
THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS
THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES
FOR THE BENEFIT OF KOSMOS ENERGY LTD. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF
OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 OR APPLICABLE STATE SECURITIES LAWS.
No transfer of any
Note prior to the Resale Restriction Termination Date will be registered by the Note Registrar unless the applicable box on the Form
of Assignment and Transfer has been checked.
Any Note (or security
issued in exchange or substitution therefor) (i) as to which such restrictions on transfer shall have expired in accordance with their
terms, (ii) that has been transferred pursuant to a registration statement that has become effective or been declared effective under
the Securities Act and that continues to be effective at the time of such transfer or
(iii) that has been sold pursuant to
the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act, may, upon surrender
of such Note for exchange to the Note Registrar in accordance with the provisions of this Section 2.05, be exchanged for a new
Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by this Section
2.05(c) and shall not be assigned a restricted CUSIP number. The Company shall
be entitled to instruct the Custodian in writing to so surrender any Global Note as to which any of the conditions set forth in clause
(i) through (iii) of the immediately preceding sentence have been satisfied, and, upon such instruction, the Custodian shall so surrender
such Global Note for exchange; and any new Global Note so exchanged therefor shall not bear the restrictive legend specified in this
Section 2.05(c) and shall not be assigned a restricted CUSIP number.
The Company shall promptly notify the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly after a registration
statement, if any, with respect to the Notes or any Common Stock issued upon conversion of the Notes has been declared effective under
the Securities Act.
Notwithstanding
any other provisions of this Indenture (other than the provisions set forth in this Section 2.05(c)), a Global Note may not be
transferred as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary and (ii) for exchange of a Global Note or a portion thereof for one or more Physical Notes in accordance with the
second immediately succeeding paragraph.
The Depositary shall
be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary
with respect to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede &
Co., as the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.
If (i) the Depositary
notifies the Company at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor
depositary is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and
a successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is continuing
and 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 interests in the Global
Notes to the Trustee such interests in the Global Notes shall be canceled.
Physical Notes issued
in exchange for all or a part of the Global Note pursuant to this Section 2.05(c) shall be registered in such names and in such
Authorized Denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, or, in the
case of clause (iii) of the immediately preceding paragraph, the relevant beneficial owner, shall instruct the Trustee. Upon execution
and authentication, the Trustee shall deliver such Physical Notes to the Persons in whose names such Physical Notes are so registered.
At such time as
all interests in a Global Note have been converted, canceled, repurchased, redeemed or transferred, such Global Note shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian.
At any time prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased,
redeemed or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part
of such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made
on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.
None of the Company,
the Paying Agent, the Trustee or any agent of the Company, the Paying Agent or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining,
supervising or reviewing any records relating to such beneficial ownership interests. The Trustee may rely and shall be fully protected
in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(d)
Until the Resale Restriction Termination Date, any stock certificate representing Common Stock issued upon conversion of a Note
shall bear a legend in substantially the following form (unless such Common Stock has been transferred pursuant to a registration statement
that has become or been declared effective under the Securities Act and that continues to be effective at the time of such transfer,
or pursuant to the exemption from registration provided by Rule 144 or any similar provision then in force under the Securities Act,
or such Common Stock has been issued upon conversion of a Note that has 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”), 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 KOSMOS ENERGY LTD. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE OF
THE SERIES OF NOTES UPON THE CONVERSION OF WHICH THIS SECURITY WAS ISSUED OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER
THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO
THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 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 OR APPLICABLE STATE SECURITIES
LAWS.
Any such Common
Stock (i) as to which such restrictions on transfer shall have expired in accordance with their terms, (ii) that has been transferred
pursuant to a registration statement that has become or been declared effective under the Securities Act and that continues to be effective
at the time of such transfer or (iii) that has been sold pursuant to the exemption from registration provided by Rule 144 or any similar
provision then in force under the Securities Act, may, upon surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common Stock, be exchanged for
a new certificate or certificates for
a like aggregate number of shares of Common Stock, which shall not bear the restrictive legend required by this Section 2.05(d).
(e)
Any Note or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by any respective Affiliate
of the Company or any Guarantor (or any Person who was an Affiliate of the Company or Guarantor at any time during the three months immediately
preceding) may not be resold by such Affiliate (or such Person, as the case may be) unless such Note or Common Stock has been 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 in a Company Order the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and deliver, a new Note, bearing a registration number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant
for a substituted Note shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with
such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee
and, if applicable, to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of
the ownership thereof.
The Trustee or such
authenticating agent may authenticate any such substituted Note and deliver the same upon the receipt of a Company Order and 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 or Trustee may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax required in connection therewith as a result of the name of the Holder of the new substitute Note being different from the name of
the Holder of the old Note that became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature
or has been surrendered for required repurchase or 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, 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 in a Company Order, 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, upon a Company Order, 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.
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, if surrendered to the Company or
any of the Company’s agents, Subsidiaries or Affiliates, to be surrendered to the Trustee for cancellation. Concurrently with surrendering
such Notes to the Trustee, the Company shall deliver a cancellation order to the Trustee. All Notes delivered to the Trustee in accordance
with this Section 2.08 shall be canceled promptly by it in accordance with its customary procedures upon receipt of a written
cancellation order from 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 canceled Notes in accordance with its customary procedures and, after such disposition,
shall deliver a certificate 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 Company and/or 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 number as they appear on any Notes, notice or elsewhere and that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Notes or on such notice and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly notify the Trustee in writing of any change in the CUSIP numbers.
Section 2.10.
Additional Notes; Repurchases. The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen
this Indenture and issue additional Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences
in the issue date, the issue price and interest accrued prior to the issue date of such additional Notes and, if applicable, the initial
Interest Payment Date and restrictions on transfer in respect of such additional Notes) in an unlimited aggregate principal amount; provided
that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes,
such additional Notes shall have a separate CUSIP number. Prior to the issuance of any such additional Notes, the Company shall deliver
to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel which such Opinion of Counsel shall state (in
addition to the matters covered in Section 17.05) that such Notes, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
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 private or public tender or
exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives, in each case, without
prior notice to the Holders. The Company may, at its option and to the extent permitted by law, reissue, resell or surrender to the Trustee
for cancellation, in accordance with Section 2.08, any Notes that the Company or its Subsidiaries may purchase, in the case of
reissuance or resale, so long as such Notes do not constitute “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act upon any reissuance or resale. Any Notes that the Company or its Subsidiaries may repurchase will be considered
outstanding under this Indenture (subject to Section 8.04) unless and until such time the Company or such Subsidiary surrenders
such Notes to the Trustee for cancellation, and the Trustee, upon receipt of a cancellation order, shall cancel all Notes so surrendered.
Article 3
Satisfaction and Discharge
Section 3.01.
Satisfaction and Discharge. This Indenture shall upon request of the Company contained in an Officer’s Certificate cease to
be of further effect, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (a) (i) all Notes theretofore authenticated and delivered (other than Notes which have been destroyed,
lost or stolen and which have been replaced, paid or converted as provided in Section 2.06)
have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or, in the case of shares
of Common Stock, the Company has 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 and, if applicable, shares of Common Stock (or other Reference Property), solely to satisfy the Company’s Conversion Obligation,
as applicable, sufficient to pay all of the outstanding Notes and all other sums due and payable under this Indenture by the Company;
and (b) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Article 7 shall survive in accordance
with the terms thereof.
Article
4
Particular Covenants of the Company
Section 4.01.
Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, each of the Notes at the places,
at the respective times and in the manner provided herein and in the Notes.
Section 4.02.
Maintenance of Office or Agency. The Company will maintain in the continental United States, 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 office or agency of the Trustee in the continental United States; provided that the Trustee shall not be deemed
an agent of the Company for service of legal process.
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 in the continental United States, for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The terms “Paying
Agent” and “Conversion Agent” include any such additional or other offices or agencies, as applicable.
The Company hereby
initially designates the Trustee as the Paying Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office as
the office or agency in the continental United States, 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 in respect of the Notes and this Indenture may
be served.
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 on, the Notes in trust for the benefit of the Holders of
the Notes;
(ii)
that it will give the Trustee prompt written notice of any failure by the Company to make any payment of the principal (including
the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when
the same shall be due and payable; and
(iii)
that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust.
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 on, the Notes, deposit with the Paying Agent a sum in immediately available U.S. Dollars sufficient
to pay such principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid
interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of any failure to take such action;
provided that if such deposit is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York
City time, on such date.
(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 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 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 on, the Notes when the same shall become due and payable.
(c)
Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining
a satisfaction and discharge of this Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or
amounts held in trust by the Company or any Paying Agent hereunder as required by this Section 4.04, such sums or amounts to be
held by the Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee,
the Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.
(d)
Subject to applicable law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, accrued
and unpaid interest on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion
has become due and payable shall be paid to the Company on request of the Company contained in an Officer’s Certificate, or (if
then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 4.05.
Existence. Subject to Article 11, each of the Company and each Guarantor shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate, partnership, limited liability company or other existence, as the case may
be.
Section 4.06.
Rule 144A Information Requirement and Annual Reports. (a) At any time the Company is not, or any Guarantor 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 deliver to the Trustee, within 15 days after the same are required to be filed with the Commission (after giving
effect to any grace period provided by Rule 12b-25 under the Exchange Act), copies of any documents or reports that the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, documents or reports,
or portions thereof, subject to, or with respect to which the Company is actively seeking, confidential treatment and any correspondence
with the Commission). Any such document or report that the Company files with the Commission via the Commission’s EDGAR system
shall be deemed to be delivered to the Trustee for purposes of this Section 4.06(b) at the time such document or report is filed
via the EDGAR system, it being understood the Trustee shall not be responsible for determining whether such filings have been made. The
filing or deemed filing of any such document with the Trustee shall cure any Default or Event of Default with respect to such document
under this Section.
(c)
The Trustee shall have no duty to review or analyze reports delivered to it. Delivery of the reports and documents described in
subsection (b) above to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute
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 Officer’s
Certificates). The Trustee shall have no liability or responsibility for the filing, timeliness or content of any such report or document.
(d)
If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original
issuance of the Notes, the Company fails to timely file any document or report that it is required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than
reports on Form 8-K), or the Notes are not otherwise freely tradable pursuant to Rule 144 by Holders other than the Company’s or
any Guarantor’s Affiliates or Holders that were the Company’s or any Guarantor’s Affiliates at any time during the
three months immediately preceding (as a result of restrictions pursuant to U.S. securities laws or the terms of this Indenture or the
Notes (other than any restrictive legends initially borne by the Notes)), the Company shall pay Additional Interest on the Notes. Such
Additional Interest shall accrue on the Notes at the rate of 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 or any Guarantor’s Affiliates (or Holders that were the
Company’s or any Guarantor’s Affiliates at any time during the three months immediately preceding). 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.
(e)
If, and for so long as, the restrictive legend on the Notes specified in Section 2.05(c) has not been removed, the Notes
are assigned a restricted CUSIP number or the Notes are
not otherwise freely tradable pursuant
to Rule 144 by Holders other than the Company’s or any Guarantor’s Affiliates or Holders that were the Company’s or
any Guarantor’s Affiliates at any time during the three months immediately preceding (without restrictions pursuant to U.S. securities
laws or the terms of this Indenture or the Notes) as of the 380th day after the last date of original issuance of the Notes, the Company
shall pay Additional Interest on the Notes at a rate equal to 0.50% per annum of the principal amount of Notes outstanding until the
restrictive legend on the Notes has been removed in accordance with Section 2.05(c), the Notes are assigned an unrestricted CUSIP
number and the Notes are freely tradable pursuant to Rule 144 by Holders other than the Company’s or any Guarantor’s Affiliates
(or Holders that were the Company’s or any Guarantor’s Affiliates at any time during the three months immediately preceding)
without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes.
(f)
Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest
on the Notes.
(g)
The Additional Interest that is payable in accordance with Section 4.06(d) or Section 4.06(e) shall be in addition
to, and not in lieu of, any Additional Interest that may be payable as a result of the Company’s election pursuant to Section
6.03. However, in no event shall any Additional Interest that may accrue as a result of the Company’s failure to timely file any
document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, as applicable,
after giving effect to all applicable grace periods thereunder and other than reports on Form 8-K), as described in Section 4.06(d),
together with any Additional Interest payable at the Company’s election as the 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), 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 Additional Interest.
(h)
If Additional Interest is payable by the Company pursuant to Section 4.06(d) or Section 4.06(e), the Company shall
deliver to the Trustee, no later than five Business Days prior to the applicable payment date, an Officer’s Certificate to that
effect stating (i) the amount of such Additional Interest that is payable and (ii) the date on which such Additional Interest is payable.
Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a certificate, the Trustee may assume
without inquiry that no such Additional Interest is payable. If the Company has paid Additional Interest directly to the Persons entitled
to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.
Section 4.07.
Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that
would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture; and the
Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
Section 4.08.
Compliance Certificate; Statements as to Defaults. The Company shall deliver to the Trustee at its Corporate Trust Office, within
120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending on December 31, 2024) an Officer’s
Certificate stating whether the signers thereof have knowledge of any Event of Default or Default that occurred during the previous year
and, if so, specifying each such Event of Default or Default and the nature thereof.
In addition, the
Company shall deliver to the Trustee at its Corporate Trust Office, within 30 days after the occurrence of any Event of Default or Default,
an Officer’s Certificate setting forth the details of such Event of Default or Default, its status and the action that the Company
is taking or proposing to take in respect thereof.
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.
Section 4.10.
Additional Amounts.
(a)
All payments and deliveries made by the Company with respect to the Notes or the Guarantors in respect of the Note Guarantees,
including the Redemption Price, the Fundamental Change Repurchase Price or amounts payable upon any conversion of the Notes (including
payments of cash for fractional shares, if applicable), shall be made without withholding or deduction for or on account of any present
or future taxes, duties, assessments or other governmental charges of whatever nature imposed or levied by or on behalf of the Company’s,
a Guarantor’s or any successor’s jurisdiction of incorporation or tax residence or the jurisdiction in which central management
or control of the Company, such Guarantor or such successor, as applicable, is exercised, or in or through which payments are made in
respect of the Notes or the Note Guarantees or, in each case, any political subdivision or governmental authority therein (each, a “Relevant
Taxing Jurisdiction”), unless the Company, such Guarantor or such successor is compelled by law to deduct or withhold such
taxes, duties, assessments, or governmental charges. In such event, the relevant payor shall make such deduction or withholding, make
payment of the amount so withheld to the appropriate governmental authority and, in the case of any payment of principal of (including
the Fundamental Change Repurchase Price and the Redemption Price, if applicable), or interest on, the Notes (but excluding, for the avoidance
of doubt, any payments or deliveries due upon conversion of the Notes, whether made in cash, shares of Common Stock or Reference Property),
pay such additional amounts (the “Additional Amounts”) as may be necessary to ensure that the net amounts receivable
by Holders after such withholding or deduction (including any withholding or deduction in respect of such payment of Additional Amounts)
shall equal the respective amounts which would have been receivable in respect of the Notes or the Note Guarantees in the absence of
such withholding or deduction. However, no such Additional Amounts shall be payable:
(i)
to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or governmental
charges in respect of such Note by reason of the existence of any present or former connection between such Holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership, a limited liability
company or a corporation) or beneficial owner and the Relevant Taxing Jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member or shareholder) or beneficial owner being or having been a citizen or resident thereof or being
or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, other than
the mere holding of the Note or enforcement of rights and the receipt of payments or deliveries with respect to the Note;
(ii)
in respect of Notes surrendered (if surrender is required) more than 30 days after the Relevant Date except to the extent that
payments under such Note would have been subject to withholding and the Holder or beneficial owner of such Note would have been entitled
to such Additional Amounts on surrender of such Note for payment on the last day of such period of 30 days;
(iii)
to, or to a third party on behalf of, a Holder or beneficial owner who is liable for such taxes, duties, assessments or other
governmental charges by reason of such Holder’s or beneficial owner’s failure to comply with any certification, identification
or other reporting requirement concerning the nationality, residence or identity of such Holder or beneficial owner or its connection
with a Relevant Taxing Jurisdiction, if (A) compliance is required by such jurisdiction, or any political subdivision or authority thereof
or therein having power to tax, as a precondition to exemption from, or reduction in the rate of, the tax, duty, assessment or other
governmental charge and (B) the Company or any Guarantor has given the Holders at least 30 days’ notice that Holders will be required
to provide such certification or identification or comply with such other requirement;
(iv)
in respect of any estate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental
charge;
(v)
in respect of any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments
or deliveries in respect of the Notes or the Note Guarantees or by direct payment by the Company or any Guarantor in respect of claims
made against the Company or any Guarantor;
(vi)
in respect of United States federal withholding tax imposed by reason of a Holder or beneficial owner of a Note (A) being or having
been a bank, including any entity regulated as a bank or conducting a banking business, receiving payments on an extension of credit
in the ordinary course of its lending business, (B) being or having been a controlled foreign corporation for U.S. federal income tax
purposes related, directly or indirectly, to the Company through stock ownership or a corporation that has accumulated earnings to avoid
U.S. federal income tax; (C) being or having been an
actual or constructive owner
of 10% or more of the total combined voting power of all of the Common Equity of the Company or (D) failing to provide an applicable
IRS Form W-8 certifying as to such person’s non-U.S. status;
(vii)
in respect of any tax, assessment, withholding or deduction required by Sections 1471 through 1474 of the Internal Revenue Code
of 1986, as amended (“FATCA”), any current or future Treasury regulations or rulings promulgated thereunder, any law,
regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United
States and any other jurisdiction pursuant to the implementation of FATCA, or any agreement with the United States Internal Revenue Service
pursuant to the implementation of FATCA;
(viii)
in respect of any United States federal withholding tax imposed on a Holder or beneficial owner of a Note as a result of the Company
being a “United States real property holding corporation” as defined in the Internal Revenue Code of 1986, as amended;
(ix)
in respect of any United States federal withholding tax imposed on a Note in respect of constructive distributions pursuant to
Section 305(c) of the Internal Revenue Code of 1986, as amended; or
(x)
in respect of any combination of the above.
(b)
Notwithstanding anything to the contrary in Section 4.10(a), no Additional Amounts shall be paid with respect to the payment
of principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), or the payment of interest
on, any Note to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that
payment to the extent that payment would be required by the laws of the Relevant Taxing Jurisdiction, or any political subdivision thereof,
to be included in the income, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of the partnership,
an interest holder in the limited liability company or a beneficial owner who would not have been entitled to the Additional Amounts
had that beneficiary, settlor, member, interest holder or beneficial owner been the Holder.
(c)
The Company or the applicable Guarantor, as the case may be, shall provide the Trustee and Paying Agent with the official acknowledgement
of the Relevant Taxing Jurisdiction (or, if such acknowledgement is not available, other reasonable documentation) evidencing the payment
of any taxes, duties, assessments or other governmental charges in respect of which the Company or such Guarantor has, as the case may
be, paid any Additional Amounts. Copies of such documentation shall be provided to the Holders of the Notes upon request.
(d)
At least 30 days prior to each date on which any payment of principal of (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable), or any payment of interest on, any Note is due and payable (unless such obligation to pay Additional
Amounts arises shortly before or after the 30th day prior to such date, in which case it shall be promptly thereafter), if the Company
or the applicable Guarantor, as the case may be, shall be
obligated to pay Additional Amounts
with respect to such payment, the Company shall deliver to the Trustee and Paying Agent an Officer’s Certificate stating the fact
that such Additional Amounts will be payable and the amounts so payable and shall set forth such other information necessary to enable
the Paying Agent to remit such Additional Amounts to Holders on the payment date. Each such Officer’s Certificate shall be relied
upon until receipt of a new Officer’s Certificate addressing such matters.
(e)
The Company shall pay any stamp, issue, excise, property, registration, documentary or other similar taxes and duties, including
interest and penalties, imposed by a Relevant Taxing Jurisdiction in respect of the creation, issue, delivery, registration and offering
of the Notes or the execution of the Notes, the Note Guarantees or this Indenture. The Company shall pay and indemnify each of the Trustee,
the Paying Agent and the Holders and beneficial owners of the Notes from and against all court taxes or other taxes and duties, including
interest and penalties, paid by any of them in any jurisdiction in connection with any action permitted to be taken by the Holders and
beneficial owners to enforce the Company’s obligations under the Notes.
(f)
If the Company or any Guarantor determines that the Company or such Guarantor will be required to withhold amounts in respect
of any payments or deliveries due upon conversion of the Notes, whether made in cash, shares of Common Stock or Reference Property, including
in connection with any corporation transaction following which the Company, such Guarantor or the successor to the Company or such Guarantor
may become a company, corporation, partnership, limited partnership, limited liability company or trust organized and existing under
the laws of Bermuda, the Cayman Islands, the United States of America, any State thereof or the District of Columbia or any territory
thereof, or any other country that is a member country of the European Union or of the Organization for Economic Co-operation and Development,
and in the case of a Guarantor or a successor to a Guarantor, as applicable, is reasonably expected to be responsible for satisfying
any such payments or deliveries due upon conversion, then the Company or such Guarantor or successor, as applicable, shall notify in
writing the Trustee, the Conversion Agent (if other than the Trustee) and each Holder at its address appearing on the Note Register regarding
such determination as promptly as possible but in no event later than 30 days after making such determination. If the Company or any
Guarantor determines that the Company or such Guarantor will be required to make any such withholding or deduction, the Company or such
Guarantor shall thereafter use reasonable efforts to cooperate with Holders of the Notes to obtain a refund of any withheld or deducted
amounts.
(g)
Whenever in this Indenture or the Notes there is mentioned in any context the payment of principal of (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable), or the payment of interest on, any Note, such mention shall be deemed
to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof.
(h)
The obligations of this Section 4.10 shall survive the termination or discharge 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 10 days after each March 1 and September 1 in each year beginning with September 1, 2024, and at such other times as the Trustee
may request in writing, within 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 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 destroy 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 interest on any Note when due and payable, and the default continues for a period of 30 days;
(b)
default in the payment of principal of any Note when due and payable on the Maturity Date, upon Redemption, upon any required
repurchase, upon declaration of acceleration or otherwise;
(c)
failure by the Company to comply with its obligation to convert the Notes in accordance with this Indenture upon exercise of a
Holder’s conversion right and such failure continues for a period of three Business Days;
(d)
failure by the Company to issue (i) a Fundamental Change Company Notice in accordance with Section 15.02(c), (ii) notice
of a specified corporate transaction in accordance with Section
14.01(b)(ii) or (iii) notice of a specified corporate transaction in
accordance with Section 14.01(b)(iii), in each case when due and
such failure continues for a period of three Business Days;
(e)
failure by the Company or any Guarantor to comply with its obligations under Article 11;
(f)
failure by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of
the Notes then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or this
Indenture;
(g)
default by the Company, any Significant Subsidiary of the Company or any group of Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary of the Company, with respect to any mortgage, agreement or other instrument under which there
may be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $125,000,000 (or
its foreign currency equivalent) in the aggregate of the Company, any such Significant Subsidiary and/or any such group of Subsidiaries,
whether such indebtedness now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due
and payable or (ii) constituting a failure to pay the principal or interest of any such indebtedness when due and payable at its stated
maturity, upon required repurchase, upon declaration of acceleration or otherwise, and such acceleration shall not have been rescinded
or annulled or such failure to pay shall not have been cured, as the case may be, within 30 days after written notice to the Company
by the Trustee or to the Company and the Trustee by Holders of at least 25% in principal amount of the Notes then outstanding has been
received;
(h)
a final judgment or judgments for the payment of $125,000,000 (or its foreign currency equivalent) or more (excluding any amounts
covered by insurance) in the aggregate rendered against the Company, any Significant Subsidiary of the Company or any group of Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary of the Company, which judgment is not discharged, bonded,
paid, waived or stayed within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced,
or (ii) the date on which all rights to appeal have been extinguished;
(i)
the Company, any Significant Subsidiary of the Company or any group of Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary of the Company shall commence a voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to the Company, such Significant Subsidiary or such group of Subsidiaries or debts of such Person or group
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, such Significant Subsidiary or such group of Subsidiaries or any substantial part
of such Person’s or group’s 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;
(j)
an involuntary case or other proceeding shall be commenced against the Company, any Significant Subsidiary of the Company or any
group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the Company, seeking liquidation,
reorganization or other relief with
respect to such Person or group or such Person’s or group’s 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,
such Significant Subsidiary or such group of Subsidiaries or any substantial part of such Person’s or group’s property, and
such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 consecutive days;
(k)
any Note Guarantee by a Significant Subsidiary or group of Subsidiaries that, taken together, would constitute a Significant Subsidiary,
ceases to be in full force and effect, other than in accordance with the terms of this Indenture, or a Guarantor denies or disaffirms
its obligations under its Note Guarantee; or
(l)
all or substantially all of the undertakings, assets and revenues of the Company and any Significant Subsidiary of the Company
or group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the Company, taken as a whole,
is condemned, seized or otherwise appropriated (other than in accordance with its terms) by any Person acting under the authority of
any national, regional or local government or the Company, any Significant Subsidiary or group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary, is prevented by such Person for a period of 60 consecutive days or longer from exercising
normal control over all or substantially all of the undertaking, assets and revenues of the Company, such Significant Subsidiary or such
group of Subsidiaries, as the case may be.
Section 6.02. Acceleration;
Rescission and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every such case
(other than an Event of Default specified in Section 6.01(i) or Section 6.01(j)), unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes
then outstanding determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given
by Holders), may declare 100% of the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately,
and upon any such declaration the same shall become and shall automatically be immediately due and payable, anything contained in this
Indenture or in the Notes to the contrary notwithstanding. If an Event of Default specified in Section 6.01(i) or Section
6.01(j) occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall
automatically be immediately due and payable.
The immediately
preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared
due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest
upon all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue
installments of accrued and unpaid interest
to the extent that payment of such interest is enforceable under applicable law, and on such principal at the rate borne by the Notes
at such time) and amounts due to the Trustee pursuant to Section 7.06, and if (1) rescission would not conflict with any judgment
or decree of a court of competent jurisdiction and (2) any and all existing Events of Default, 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 (except as provided in the immediately succeeding sentence) the Holders
of a majority in aggregate principal amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive
all Defaults or Events of Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture;
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair
any right consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend
to or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to repurchase
any Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion of the Notes.
Section 6.03. Additional
Interest. Notwithstanding anything in this Indenture or in the Notes to the contrary, 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) shall after the occurrence of such an Event of Default consist exclusively
of the right to receive Additional Interest on the Notes at a rate equal to: (a) 0.25% per annum of the principal amount of the
Notes outstanding for each day during the period beginning on, and including, the date on which such Event of Default first occurs and
ending on the earlier of (x) the date on which such Event of Default is cured or validly waived in accordance with this Article
6 and (y) the 180th day immediately following, and including, the date on which such Event of Default first occurs and (b) if such Event
of Default has not been cured or validly waived prior to the 181st day immediately following, and including, the date on which such Event
of Default first occurs, 0.50% per annum of the principal amount of Notes outstanding for each day during the period beginning on, and
including, the 181st day immediately following, and including, the date on which such Event of Default first occurs and ending on the
earlier of (x) the date on which the Event of Default is cured or validly waived in accordance with this Article 6 and (y) the
360th day immediately following, and including, the date on which such event of default first occurs. Additional Interest payable pursuant
to this Section 6.03 shall be in addition to, not in lieu of, any Additional Interest payable pursuant to Section 4.06(d)
or Section 4.06(e), subject to the second immediately succeeding paragraph. If the Company so elects, such Additional Interest
shall be payable in the same manner and on the same dates as the stated interest payable on the Notes and shall accrue on all outstanding
Notes from, and including, the date on which the Event of Default relating to the Company’s failure to comply with its obligations
as set forth in Section 4.06(b) first occurs to, but not including, the 361st day thereafter (or such earlier date on which such
Event of Default is cured or waived by the Holders of a majority in aggregate principal amount of the Notes then outstanding). On the
361st day after such Event of Default (if the
Event of Default relating to the Company’s
failure to file is not cured or waived prior to such 361st day), the Notes shall be immediately subject to acceleration as provided in
Section 6.02. The provisions of this paragraph will not affect the rights of Holders of Notes in the event of the occurrence of
any Event of Default other than the Company’s failure to comply with its obligations as set forth in Section 4.06(b).
In the event the Company does not elect to pay Additional Interest following an Event of Default in accordance with this Section
6.03 or the Company elected to make such payment but does not pay the Additional Interest when due, the Notes shall be immediately subject
to acceleration as provided in Section 6.02.
In order to elect
to pay Additional Interest as the sole remedy during the first 360 days after the occurrence of any Event of Default described in the
immediately preceding paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election
prior to the beginning of such 360-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
Additional Interest payable at the Company’s election as the 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), together with any Additional Interest that may accrue as a result
of the Company’s failure to timely file any document or report that it is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than reports
on Form 8-K), 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 Additional Interest.
The Trustee shall
not at any time be under any duty or responsibility to any Holder to determine Additional Interest, or with respect to the nature, extent
or calculation of the amount of Additional Interest owed, or with respect to the method employed in such calculation of Additional 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, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes,
the whole amount then due and payable on the Notes for principal and interest, if any, with interest on any overdue principal and interest,
if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any
amounts due to the Trustee under Section 7.06. If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid,
may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the
Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any
other obligor upon the Notes, wherever situated.
In the event there
shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title
11 of the United
States Code, or any other applicable
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have
been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in
the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property
of the Company or such other obligor, the Trustee, irrespective of whether the principal of the Notes shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions
of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim
or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable
in order to have the claims of the Trustee (including any claim for the 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 reasonable agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06, incurred
by it up to the date of such distribution. To the extent that such payment of 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 parties to any such proceedings.
In case the Trustee
shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because
of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.02 or for any other reason
or shall have been determined adversely to the Trustee, then and in every such case the Company, the Guarantors, 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 Guarantors, the Holders and the Trustee shall continue as though no such proceeding
had been instituted.
Section 6.05.
Application of Monies Collected by Trustee. Any monies collected by the Trustee pursuant to this Article 6 or the foreclosure
or other remedial provisions contained in the Security Documents, in each case ,with respect to the Notes, shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Notes, and stamping
thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First, to
the payment of all amounts due the Trustee hereunder;
Second, in
the case of a payment in respect of a Note Guarantee, to holders of Senior Debt of a Guarantor as applicable, in each case to the extent
required by Section 13.06 (but only to the extent a Responsible Officer of the Trustee has received written notice of the identities
of such holders and the amounts due thereto by the Security and Intercreditor Agent no earlier than ten Business Days prior and no later
than five Business Days prior to the date of such remittance);
Third, in
case the principal of the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due
upon conversion of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion,
as the case may be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at
the rate borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;
Fourth, 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 on the overdue principal and, to the
extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at
such time, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to the
payment of such principal (including, if applicable, the Redemption Price 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 accrued and unpaid
interest; and
Fifth, 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 when due, or the right to receive payment or delivery of the consideration due
upon conversion, no Holder of any Note shall have any right by virtue of or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a)
such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as
herein provided;
(b)
Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c)
such Holders shall have offered to the Trustee such security or indemnity satisfactory to the Trustee against any loss, liability
or expense to be incurred therein or thereby;
(d)
the Trustee has not complied with such request within 60 days after receipt of the request and the offer of such security or indemnity;
and
(e)
no direction that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee
by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section
6.09, it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and
Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable
and common benefit of all Holders (except as otherwise provided herein) (it being understood that the Trustee shall have no obligation
to determine whether any such action or inaction would unduly prejudice the rights of another Holder). 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 institute suit for the enforcement
of its 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.
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. 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, the Security Documents or any Note Guarantee and (b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. The Trustee may refuse to follow any direction that it determines is unduly prejudicial
to the rights of any other Holder or that would involve the Trustee in personal liability; provided that the Trustee shall have
no affirmative duty to determine whether any direction is prejudicial to any other Holder. 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 except (i) a default in the payment of accrued and
unpaid interest, if any, on, or the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if any) 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 repurchase
any Notes when required or to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default
in respect of a covenant or provision hereof which under Article 10 cannot be modified or amended without the consent of each
Holder of an outstanding Note
affected. Upon any such waiver the Company,
the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default
hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of
the Notes and this Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon.
Section 6.10.
Notice of Defaults. The Trustee shall, within 90 days after a Responsible Officer of the Trustee has received written notice or has
actual knowledge of the occurrence and continuance of a Default, deliver to all Holders notice of all such Defaults, 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
interest 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 the Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.
Section 6.11.
Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed
to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; provided that the provisions of this Section 6.11 (to the extent permitted by
law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section 8.04, or
to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on
any Note (including, but not limited to, the Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after
the due date expressed or provided for in such Note or to any suit for the enforcement of the right to convert any Note, or receive the
consideration due upon conversion, in accordance with the provisions of Article 14.
Article
7
Concerning the Trustee
Section 7.01.
Duties and Responsibilities of Trustee. The Trustee, prior to the occurrence of an Event of Default and after the curing or waiver
of all Events of Default that may have occurred, undertakes to perform such duties and only such duties as are specifically set forth
in this Indenture. In the event an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs; provided that 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 to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense that might be incurred
by it in compliance with such request or direction.
No provision of
this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent
failure to act or its own willful misconduct, except that:
(a)
prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default that may have occurred:
(i)
the duties and obligations of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii)
in the absence of gross negligence or willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions that by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical calculations
or other facts stated therein);
(b)
the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(c)
the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture;
(d)
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;
(e)
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 and Section 7.02;
(f)
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;
(g)
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;
(h)
all cash received by the Trustee shall be held in cash and the Trustee shall have no obligation to invest any amounts held hereunder;
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; provided that during
an Event of Default, only the Trustee and not any of the Custodian, Note Registrar, Paying Agent, Conversion Agent, Bid Solicitation
Agent or transfer agent hereunder shall be subject to the prudent person standard.
None of the provisions
contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights or powers.
Section 7.02.
Reliance on Documents, Opinions, Etc. Except as otherwise provided in Section 7.01:
(a)
the Trustee and Agents may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, judgment, order, bond, note, coupon, debenture
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 or an Opinion of Counsel (or both) (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.
The Trustee will not be liable for any action it takes or omits to take in good faith reliance on such Officer’s Certificate or
Opinion of Counsel;
(c)
the Trustee may consult with counsel and require an Opinion of Counsel and any advice of such counsel or Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of any action taken or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d)
the Trustee shall 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, judgment, order, bond, note, coupon, debenture or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by
reason of such inquiry or investigation;
(e)
the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any
agent, custodian, nominee or attorney appointed by it with due care hereunder;
(f)
the 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 (including
the Agents), Custodian and other Person employed to act hereunder;
(g)
the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(h)
the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture (i.e., an incumbency certificate);
(i)
the Trustee shall not be responsible for monitoring the performance or actions of other Persons, including the Company;
(j)
the Trustee is not obligated to follow any instruction of the Holders that is contrary to this Indenture, the Notes or applicable
law; and
(k)
the permissive rights of the Trustee or an Agent enumerated herein shall not be construed as duties and, with respect to such
permissive rights, neither the Trustee nor any Agent shall be answerable for anything other than its gross negligence or willful misconduct.
In no event shall
the Trustee be liable for any punitive, indirect, incidental, special 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 given to the Trustee at its Corporate Trust Office
by the Company, by any Guarantor or by any Holder of the Notes, and such notice references the Notes and this Indenture and states that
it is a notice of Default or Event of Default.
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 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. The rights, protections and indemnities afforded the Trustee hereunder
shall apply to each agent of the Trustee acting hereunder.
Section 7.05.
Monies to Be Held in Trust. All monies received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money held by the Trustee in trust hereunder need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability for interest on any money 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 and the Guarantors, jointly and severally, covenant and agree to pay to the Trustee
from time to time, and the Trustee shall be entitled to, compensation for all services rendered by it hereunder in any capacity (which
shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in accordance with any of the provisions of this Indenture in any
capacity hereunder (including the compensation and the reasonable expenses and disbursements of its agents and counsel and of all Persons
not regularly in its employ and including those incurred with respect to enforcement of this Section) except any such expense, disbursement
or advance as shall have been caused by its gross negligence or willful misconduct as determined by a final, non-appealable decision
of a court of competent jurisdiction. The Company and the Guarantors, jointly and severally, also covenant to indemnify the 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 (whether asserted by the Company, any Holder or any other Person), damage,
liability or expense (including reasonable and documented
attorneys’ fees) 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 court of competent jurisdiction in a final, non-appealable decision), and arising out of
or in connection with the acceptance, administration or enforcement of this Indenture or in any other capacity hereunder, including the
costs and expenses (including reasonable and documented attorneys’ fees) of defending themselves against any claim of liability.
The obligations of the Company and the Guarantors 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 and claim to which the Notes are hereby
made subordinate on all money or property held or collected by the Trustee, except, subject to the effect of Section 6.05, funds
held in trust herewith for the benefit of the Holders of particular Notes. The Trustee’s right to receive payment of any amounts
due under this Section 7.06 shall not be subordinate to any other liability or indebtedness of the Company and to secure the Company’s
payment obligations under this Section 7.06, the Trustee shall have a lien prior to the Notes on all money or property held or collected
by the Trustee, in its capacity as Trustee, other than money or property held in trust to pay principal and any interest on, and any
consideration due upon conversion of, the Notes. The obligation of the Company and the Guarantors under this Article 7 shall survive
the satisfaction and discharge of this Indenture and the earlier resignation or removal of the Trustee. None of the Company nor any Guarantor
need 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(i) or Section
6.01(j) occurs, the expenses and the compensation for the services are intended to constitute administrative expenses for the
purposes of priority under any bankruptcy, insolvency or similar laws.
Section 7.07.
Officer’s Certificate as Evidence. Except as otherwise provided in Section 7.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking
or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed
to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and such Officer’s Certificate
shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08.
Eligibility of Trustee. There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the
Trust Indenture Act (as if the Trust Indenture Act were applicable hereto) to act as such and has a combined capital and surplus of at
least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of any supervising
or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 7.09.
Resignation or Removal of Trustee. (a) The Trustee may at any time resign by giving 30 days’ 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 30 days after the giving of such notice of resignation to the Holders, the resigning Trustee may,
upon ten Business Days’ notice to the Company and the Holders, at the expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Note or Notes for at least six months
(or since the date of this Indenture) may, subject to the provisions of Section 6.11, on behalf of himself or herself and all
others similarly situated, petition any such court for the appointment of a successor trustee at the cost of the Company. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b)
In case at any time any of the following shall occur:
(i)
the Trustee shall cease to be eligible in accordance with the provisions of Section 7.08 and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(ii)
the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in either case, the Company may,
upon 30 days’ written notice to the Trustee, by a Board Resolution, remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee, or, subject to the provisions of Section 6.11, any Holder who has been a bona
fide holder of a Note or Notes for at least six months (or since the date of this Indenture) may, on behalf of himself or herself and
all others similarly situated, at the expense of the Company, 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, upon 30 days’ written notice to the Trustee, remove the Trustee and nominate a successor trustee that
shall be deemed appointed as successor trustee unless within ten days after notice to the Company of such nomination the Company objects
thereto (and no Event of Default shall have occurred and be continuing), 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 at the cost of the Company.
(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 and claim to which
the Notes are hereby made subordinate on all money or property held or collected by such trustee as such, except for funds held in trust
for the benefit of Holders of particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06.
No successor trustee
shall accept appointment as provided in this Section 7.10 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 7.08.
Upon acceptance
of appointment by a successor trustee as provided in this Section 7.10, each of the Company and the successor trustee, at the
written direction and at the expense of the Company shall deliver or cause to be delivered notice of the succession of such trustee hereunder
to the Holders. If the Company fails to deliver such notice within ten days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be delivered at the expense of the Company.
Section 7.11.
Succession by Merger, Etc. Any corporation or other entity into which the Trustee may be merged or converted or with which it may
be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall
be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee
(including the administration of this Indenture), shall be the successor to the Trustee hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided that in the case of any corporation or other entity
succeeding to all or substantially all of the corporate trust business of the Trustee such corporation or other entity shall be eligible
under the provisions of Section 7.08.
In case at the time
such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but
not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee or authenticating
agent appointed by such predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee or an authenticating agent appointed by such successor trustee may authenticate
such Notes either in the name of any predecessor trustee hereunder or in the name of the successor trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or
to authenticate Notes in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 7.12.
Trustee’s Application for Instructions from the Company. Any application by the Trustee for written instructions from the Company
(other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders
of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted
by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective.
The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included
in such application on or after the date specified in such application (which date shall not be less than three Business Days after the
date any officer that the Company has indicated to the Trustee should receive such application actually receives such application, unless
any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date
in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such
application specifying the action to be taken or omitted.
Article
8
Concerning the Holders
Section 8.01.
Action by Holders. Whenever in this Indenture or the Security Documents it is provided that the Holders of a specified percentage
of the aggregate principal amount of the Notes may take any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action, the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed
by Holders in person or by agent or proxy appointed in writing, or (b) by the record of the Holders voting in favor thereof at any meeting
of Holders duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. Whenever the Company or the Trustee solicits the taking of any action by
the Holders of the Notes, the Company or the Trustee may, but shall not be required to, fix in advance of such solicitation, a date as
the record date for determining Holders entitled to take
such action. The record date if one
is selected shall be not more than fifteen days prior to the date of commencement of solicitation of such action.
Section 8.02.
Proof of Execution by Holders. Subject to the provisions of Section 7.01, Section
7.02 and Section 9.05, proof of the execution of any instrument
by a Holder or its agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall be proved by the Note Register or
by a certificate of the Note Registrar. The record of any Holders’ meeting shall be proved in the manner provided in Section
9.06.
Section 8.03.
Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and any
Note Registrar may deem the Person in whose name a Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of ownership or other writing thereon
made by any Person other than the Company or any Note Registrar) for the purpose of receiving payment of or on account of the principal
(including any Redemption Price and any Fundamental Change Repurchase Price) of and (subject to Section 2.03) accrued and unpaid
interest on such Note, for conversion of such Note and for all other purposes; and neither the Company nor the Trustee nor any Paying
Agent nor any Conversion Agent nor any Note Registrar shall be affected by any notice to the contrary. The sole registered holder of
a Global Note shall be the Depositary or its nominee. All such payments or deliveries so made to any Holder for the time being, or upon
its order, shall be valid, and, to the extent of the sums or shares of Common Stock so paid or delivered, effectual to satisfy and discharge
the liability for monies payable or shares deliverable upon any such Note. Notwithstanding anything to the contrary in this Indenture
or the Notes following an Event of Default, any holder of a beneficial interest in a Global Note may directly enforce against the Company,
without the consent, solicitation, proxy, authorization or any other action of the Depositary or any other Person, such holder’s
right to exchange such beneficial interest for a Note in certificated form in accordance with the provisions of this Indenture.
Section 8.04.
Company-Owned Notes Disregarded. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred
in any direction, consent, waiver or other action under this Indenture or the Security Documents, 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 or any Security Document in connection with such action, any Holder of a Note that is shown by the evidence to be included
in the Notes the Holders of which have consented to such action may, by filing written notice with the Trustee at its Corporate Trust
Office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid,
any such action taken by the Holder of any Note shall be conclusive and binding upon such Holder and upon all future Holders and owners
of such Note and of any Notes issued in exchange or substitution therefor or upon registration of transfer thereof, irrespective of whether
any notation in regard thereto is made upon such Note or any Note issued in exchange or substitution therefor or upon registration of
transfer thereof.
Article
9
Holders’ Meetings
Section 9.01.
Purpose of Meetings. A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article
9 for any of the following purposes:
(a)
to give any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under this Indenture or
the Security Documents, 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 the Security Documents or under applicable law.
Section 9.02.
Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders to take any action specified in Section
9.01, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth
the time and the place of such meeting and in general terms the action proposed to be taken at such meeting
and the establishment of any record
date pursuant to Section 8.01, shall be delivered to Holders of such Notes. Such notice shall also be delivered to the Company.
Such notices shall be delivered not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders
shall be valid without notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before
or after the meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 9.03.
Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least
10% of the aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by
written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have delivered
the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and
the place for such meeting and may call such meeting to take any action authorized in Section 9.01, by delivering notice thereof
as provided in Section 9.02.
Section 9.04.
Qualifications for Voting. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on
the record date pertaining to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more
Notes on the record date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
Section 9.05.
Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall,
by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or
by Holders as provided in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of
the Holders of a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote at the meeting.
Subject to the provisions
of Section 8.04 and the Security Documents, 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,
her or it; 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 him, her or it or instruments in writing as aforesaid duly designating him, her or it as the proxy to vote on behalf of
other Holders. Any meeting of Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03 may be adjourned
from time to time by the Holders of a majority of the aggregate principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 9.06.
Voting. The vote upon any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed
the signatures of the Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or
represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was delivered as provided in Section 9.02. The record shall show the aggregate principal amount of
the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
This Section
9.06 shall be without prejudice to any procedures for voting in respect of any Security Document as set forth in or with respect to the
relevant Security Document.
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 and Amendments
Section 10.01.
Supplemental Indentures and Amendments Without Consent of Holders. Notwithstanding anything to the contrary in Section 10.02,
the Company, when authorized by the resolutions of the Board of Directors, any Guarantor (if applicable) 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 or any amendment
to a Security Document for one or more of the following purposes:
(a)
to cure any ambiguity, omission, defect or inconsistency;
(b)
to provide for the assumption by a Successor Company of the obligations of the Company or the assumption by any Successor Guarantor
of the obligations of the relevant Guarantor under this Indenture pursuant to Article 11;
(c)
to add additional guarantees with respect to the Notes;
(d)
to secure the Notes or the Note Guarantees;
(e)
to add to the covenants or Events of Default of the Company or the Guarantors for the benefit of the Holders or surrender any
right or power conferred upon the Company or any Guarantor;
(f)
to make any change that does not materially and adversely affect the rights of any Holder;
(g)
to irrevocably elect a Settlement Method and/or Specified Dollar Amount (or a minimum Specified Dollar Amount) or eliminate the
Company’s right to elect a Settlement Method; 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 Section 14.02; provided further that
in no event shall the Specified Dollar Amount be less than $1,000 per $1,000 principal amount of Notes;
(h)
in connection with any Share Exchange Event, to provide that the Notes are convertible into units of 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;
(i)
to conform the provisions of this Indenture or the Notes to the “Description of Notes” section of the Offering Memorandum;
or
(j)
to confirm and evidence the release, termination or discharge of any Note Guarantee when such release, termination or discharge
is permitted by this Indenture.
Upon the written
request of the Company and subject to Section 10.05, the Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture or amendment, 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 or amendment 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 and Amendments with Consent of Holders. With the consent (evidenced as provided in Article 8) of the
Holders of at least a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article
8 and including, without limitation, consents obtained in connection with a repurchase of, or tender or exchange offer for, Notes), the
Company, when authorized by the resolutions of the Board of Directors, and the Trustee, at the Company’s expense, may from time
to time and at any time enter into an indenture or indentures supplemental hereto or an amendment of the Security Documents for the purpose
of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or any supplemental indenture
or any Security Document 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 or amendment shall:
(a)
reduce the amount of Notes whose Holders must consent to an amendment;
(b)
reduce the rate of or extend the stated time for payment of interest on any Note;
(c)
reduce the principal of or extend the Maturity Date of any Note;
(d)
reduce the amount of principal payable upon acceleration of the maturity of the Notes;
(e)
make any change that adversely affects the conversion rights of any Notes;
(f)
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, or the Company’s right to redeem the Notes, whether through an
amendment or waiver of provisions in the covenants, definitions or otherwise;
(g)
make any Note payable in a currency, or at a place of payment, other than that stated in the Note;
(h)
change the ranking of the Notes or the Note Guarantees in a manner adverse to the Holders;
(i)
impair the right of any Holder to institute suit for the enforcement of any payment of principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid interest, if any, on, or the consideration due upon
conversion of, its Notes, on or after the respective due dates expressed or provided for in this Indenture;
(j)
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;
(k)
make any change in the Note Guarantees that would adversely affect the Holders in any material respect (unless otherwise permitted
pursuant to the terms of this Indenture); or
(l)
make any change to Section 4.10 that adversely affects the Holders in any material respect.
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 or amendment unless such supplemental
indenture or amendment 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 or amendment.
Holders do not need
under this Section 10.02 to approve the particular form of any proposed supplemental indenture or amendment. It shall be sufficient
if such Holders approve the substance thereof. After any such supplemental indenture or amendment becomes effective, the Company shall
give to the Holders (with a copy to the Trustee) a notice briefly describing such supplemental indenture or amendment. 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
or amendment.
Section 10.03.
Effect of Supplemental Indentures and Amendments. Upon the execution of any supplemental indenture or amendment pursuant to the provisions
of this Article 10, this Indenture or Security Document, as applicable, shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the
Company, the Guarantors 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 reasonably acceptable to the Company and 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 Board of Directors, to any modification of this Indenture contained in any such supplemental indenture
may, at the Company’s expense, be prepared and executed by the Company, authenticated by the Trustee (or an authenticating agent
duly appointed by the Trustee pursuant to Section 17.10) and delivered in exchange for the Notes then outstanding, upon surrender
of such Notes then outstanding.
Section 10.05.
Evidence of Compliance of Supplemental Indenture or Amendment to Be Furnished Trustee. In addition to the documents required by Section
17.05, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture or amendment
that it is requested to execute pursuant hereto complies with the requirements of this Article 10 and is permitted or authorized
by this Indenture, and an Opinion of Counsel stating that such supplemental indenture or amendment is a valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
Article
11
Consolidation, Merger, Sale, Conveyance and Lease
Section 11.01.
Company May Consolidate, Etc. on Certain Terms.
(a)
Subject to the provisions of Section 11.01(b), the Company
shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its consolidated properties
and assets, taken as a whole, to another Person (other than to one or more of its direct or indirect Wholly Owned Subsidiaries), unless:
(i)
(A) the resulting, surviving or transferee Person (if not the Company) (the “Successor Company”), shall be
a company, corporation, partnership, limited partnership, limited liability company or trust organized and existing under the laws of
Bermuda, the Cayman Islands, the United States of America, any State thereof or the District of Columbia or any territory thereof, or
any other country that is a member country of the European Union or of the Organization for Economic Co-operation and Development as
of March 5, 2024;
(B)
the Successor Company shall be treated as a corporation for U.S. federal income tax purposes; and
(C)
the Successor Company shall expressly assume, by supplemental indenture all of the obligations of the Company under the Notes
and this Indenture; and
(ii)
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under
this Indenture.
For purposes of
this Section 11.01(a), the sale, conveyance, transfer or lease
of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another Person, which properties
and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets
of the Company on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or substantially all of
the properties and assets of the Company to another Person.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company,
by supplemental indenture, executed and
delivered to the Trustee, of the due
and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment,
as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, such Successor Company shall succeed to and, except in the case of a
lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same effect
as if it had been named herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company any or all of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause
to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the Officers of the Company to the
Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease),
upon compliance with this Article 11 the Person named as the “Company” in the first paragraph of this Indenture (or
any successor that shall thereafter have become such in the manner prescribed in this Article
11) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be
released from its liabilities as obligor and maker of the Notes and from its obligations under this Indenture and the Notes.
In case of any such
consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in
the Notes thereafter to be issued as may be appropriate.
(c)
If such Successor Company is not the Company, no such consolidation, merger, sale, conveyance, transfer or lease shall be effective
unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with the provisions of this
Article 11.
Section 11.02.
Any Guarantor May Consolidate, Etc. on Certain Terms.
(a)
Subject to the provisions of Section 11.02(b), a Guarantor
shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of its consolidated properties
and assets, taken as a whole, to another Person (other than to one or more of its or the Company’s direct or indirect Wholly Owned
Subsidiaries), unless:
(i)
(A) the resulting, surviving or transferee Person (if not such Guarantor) (the “Successor Guarantor”), shall
be a company, corporation, partnership, limited
partnership, limited liability
company or trust organized and existing under the laws of Bermuda, the Cayman Islands, the United States of America, any State thereof
or the District of Columbia or any territory thereof, or any other country that is a member country of the European Union or of the Organization
for Economic Co-operation and Development as of March 5, 2024; and
(B)
the Successor Guarantor shall expressly assume, by an accession deed to the Deed of Guarantee and a supplemental indenture, all
of the obligations of the Guarantor under this Indenture, the Notes, the Note Guarantee and the Security Documents; and
(ii)
immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under
this Indenture.
(b)
In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by a Successor Guarantor,
by supplemental indenture and an accession deed to the Deed of Guarantee, executed and delivered to the Trustee and the Security and
Intercreditor Agent, of all the obligations of the relevant Guarantor under the Notes, this Indenture, the Note Guarantee and the Security
Documents, such Successor Guarantor shall succeed to and, except in the case of a lease of all or substantially all of such Guarantor’s
properties and assets, shall be substituted for such Guarantor, with the same effect as if it had been named herein as the party of the
first part. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance
with this Section 11.02(b) the Person named as the applicable “Guarantor” in this Indenture (or any successor that
shall thereafter have become such in the manner prescribed in this Section
11.02(b)) 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 under the this Indenture and the Notes Guarantee and from its obligations under this Indenture,
the Note Guarantee and the Security Documents.
(c)
If a Successor Guarantor is not the relevant Guarantor, as applicable, no such consolidation, merger, sale, conveyance, transfer
or lease shall be effective unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture and
an accession to the Deed of Guarantee are required in connection with such transaction, such supplemental indenture and accession to
the Deed of Guarantee, comply with the provisions of Section 11.02(a). To the extent it is necessary to amend or supplement the
Security Documents to provide for any transaction provided for in accordance with Section 11.02(a), the Trustee is hereby expressly
authorized and directed to enter into any such amendments or supplements on behalf of the Holders.
Article 12
Immunity of Incorporators, Stockholders, Officers and Directors
Section 12.01.
Indenture and Notes Solely Corporate Obligations. No recourse for the payment of the principal of or accrued and unpaid interest
on, or the payment or delivery of any Common Stock or cash due upon conversion of, 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 or any Guarantor 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,
any Guarantor, or of any successor Person, either directly or through the Company, such Guarantor or any successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Notes.
Article
13
Guarantees
Section 13.01.
Guarantee. (a) The Note Guarantees by each Guarantor shall be evidenced by the Deed of Guarantee. Each Holder, by accepting a Note,
consents and agrees to the terms of the Note Guarantees as set forth in the Deed of Guarantee as the same may be in effect or may be
amended from time to time in accordance with its terms, the other Security Documents and this Indenture, and authorizes and directs the
Trustee to enter into and accede to such Deed of Guarantee as beneficiary thereunder for and on behalf of itself and each Holder, and
to perform its obligations and exercise its rights thereunder in accordance therewith.
(b)
If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian,
trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee
or such Holder, the Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect.
Section 13.02.
Benefits Acknowledged. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation
of such benefits.
Section 13.03.
Release of Note Guarantees. (a) A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged,
and no further action by such Guarantor, the Company or the Trustee shall be required for the release of such Guarantor’s Note
Guarantee, upon:
(i)
(A) a sale or disposition (including by way of consolidation, merger or amalgamation) of all or a portion of the Capital Stock
of such Guarantor following which such Guarantor is no longer a Subsidiary of the Company;
(B)
a sale or disposition (including by way of consolidation, merger or amalgamation) of all or substantially all of the assets of
such Guarantor to a Person that is not the Company or a Subsidiary of the Company;
(C)
the satisfaction and discharge of the Company’s obligations under this Indenture in accordance with the terms of this Indenture;
(D)
pursuant to the terms of the Deed of Guarantee, security or a guarantee of the Company’s obligations under this Indenture
which is acceptable to the Security and Intercreditor Agent being provided in substitution for such Note Guarantee;
(E)
the release or discharge of such other guarantee under the Senior Notes or that resulted in the creation of such Note Guarantee,
except a discharge or release by or as a result of payment under such guarantee (it being understood that a release subject to a contingent
reinstatement will constitute a release for the purposes of this provision, and if any such guarantee is so reinstated, the relevant
Note Guarantee shall also be reinstated to the extent that such Guarantor would then be required to provide a Note Guarantee pursuant
to Section 13.07); or
(F)
the liquidation or dissolution of such Guarantor; provided that no Event of Default occurs as a result thereof or has occurred
or is continuing;
provided,
that the transaction is carried out pursuant to, and in accordance with, all other applicable provisions of this Indenture; and
(ii)
such Guarantor delivering to the Trustee and the Security and Intercreditor Agent an Officer’s Certificate and Opinion of
Counsel stating that all conditions precedent provided for in this Indenture and the Deed of Guarantee relating to such transaction have
been complied with.
(b)
At the written request of the Company and upon receipt of the items described in Section 13.03(a)(ii) above, the Trustee and the
Security and Intercreditor Agent shall execute and deliver any documents reasonably requested in order to evidence such release, discharge
and termination in respect of the applicable Note Guarantee.
Section 13.04.
Security Documents. In the event of a conflict or inconsistency between the terms of this Indenture and the Security Documents, the
Security Documents shall control. The Trustee and the Security and Intercreditor Agent are bound by the terms of the Intercreditor Agreements
and each Holder of a Note, by accepting such Note or beneficial interest therein, agrees to all the terms and provisions of the Intercreditor
Agreements and the other Security Documents. Notwithstanding anything to the contrary, (a) the liens and security interests granted
to the Security and Intercreditor Agent
pursuant to the Security Documents and all rights and obligations of the Trustee and Security and Intercreditor Agent hereunder are expressly
subject to the Intercreditor Agreements and (b) the exercise of any right or remedy by the Trustee hereunder is subject to the limitation
and provisions of the Intercreditor Agreements. In the event of any conflict or inconsistency between the terms of the Intercreditor
Agreements and the terms of this Indenture, the terms of the Intercreditor Agreements shall govern.
Section 13.05.
Security and Intercreditor Agent; Intercreditor Agreements. The Trustee and each of the Holders by acceptance of the Notes hereby
acknowledge the appointment of the Security and Intercreditor Agent under the Security Documents and agree that the Security and Intercreditor
Agent shall have the rights, duties and responsibilities as set forth in the Security Documents. On the date of this Indenture, the Trustee
is hereby authorized and directed to enter into the KEFI Intercreditor Accession Agreement, the Deed of Guarantee Accession Agreement
and the KEL Intercreditor Accession Agreement.
The Trustee, as
a KEFI HY Noteholder Trustee, shall not be required to exercise any discretion or take any action under the KEFI Intercreditor Agreement,
but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) solely upon
the instructions and directions of holders of a majority in outstanding principal amount of the Notes, and such instructions shall be
binding upon all Holders in their capacity as KEFI HY Noteholders; provided, however, that the Trustee, as a KEFI HY Noteholder Trustee,
shall not be required to take any action that (i) it in good faith believes exposes it to personal liability unless it receives an indemnification
satisfactory to it from the applicable KEFI HY Noteholders with respect to such action or (ii) is contrary to this Indenture or applicable
law. In the absence of any such direction, the Trustee, as a KEFI HY Noteholder Trustee, will have no duty or obligation to take any
action under the KEFI Intercreditor Agreement. The Trustee shall not be charged with notice of any shortfalls, discharges, defaults,
accelerations or other events under the Facility, the Corporate Revolver, the Senior Notes or any other document or agreement referenced
in the KEFI Intercreditor Agreement unless a Responsible Officer of the Trustee shall have received written notice thereof at the applicable
Corporate Trust Office.
The Trustee, as
a KEL HY Noteholder Trustee, shall not be required to exercise any discretion or take any action under the KEL Intercreditor Agreement,
but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) solely upon
the instructions and directions of holders of a majority in outstanding principal amount of the Notes, and such instructions shall be
binding upon all Holders in their capacity as KEL HY Noteholders; provided, however, that the Trustee, as a KEL HY Noteholder Trustee,
shall not be required to take any action that (i) it in good faith believes exposes it to personal liability unless it receives an indemnification
satisfactory to it from the applicable KEL HY Noteholders with respect to such action or (ii) is contrary to this Indenture or applicable
law. In the absence of any such direction, the Trustee, as a KEL HY Noteholder Trustee, will have no duty or obligation to take any action
under the KEL Intercreditor Agreement. The Trustee shall not be charged with notice of any shortfalls, discharges, defaults, accelerations
or other events under the Facility, the Corporate Revolver, the Senior Notes or any other document or agreement
referenced in the KEL Intercreditor
Agreement unless a Responsible Officer of the Trustee shall have received written notice thereof at the applicable Corporate Trust Office.
Notwithstanding
anything contained herein to the contrary, it is expressly understood and agreed by the parties hereto that the KEFI Intercreditor Accession
Agreement has been signed by Wilmington Trust, National Association, not in its individual capacity or personally but solely in its capacity
as KEFI HY Noteholder Trustee for the benefit of the Holders in their capacity as KEFI HY Noteholders, in the exercise of the powers
and authority conferred and vested in it under this Indenture, and in no event shall Wilmington Trust, National Association, in its individual
capacity, have any liability for the representations, warranties, covenants, agreements or other obligations of any Person under the
KEFI Intercreditor Agreement, the KEFI Intercreditor Accession Agreement, any Finance Document or in any of the certificates, reports,
documents, data, notices or agreements delivered pursuant hereto or thereto. The Trustee as KEFI HY Noteholder Trustee makes no representations
or warranties as to nor assumes any responsibility for the correctness of the recitals contained in the KEFI Intercreditor Agreement,
and the Trustee as KEFI HY Noteholder Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the
validity, execution or sufficiency of the KEFI Intercreditor Agreement or the KEFI Intercreditor Accession Agreement and makes no representation
with respect thereto. In entering into the KEFI Intercreditor Accession Agreement, the Trustee as KEFI HY Noteholder Trustee shall be
entitled to the benefit of every provision of this Indenture relating to the rights, exculpations or conduct of, affecting the liability
of or otherwise affording protection to the “Trustee” hereunder.
Notwithstanding
anything contained herein to the contrary, it is expressly understood and agreed by the parties hereto that the KEL Intercreditor Accession
Agreement has been signed by Wilmington Trust, National Association, not in its individual capacity or personally but solely in its capacity
as KEL HY Noteholder Trustee for the benefit of the Holders in their capacity as KEL HY Noteholders, in the exercise of the powers and
authority conferred and vested in it under this Indenture, and in no event shall Wilmington Trust, National Association, in its individual
capacity, have any liability for the representations, warranties, covenants, agreements or other obligations of any Person under the
KEL Intercreditor Agreement, the KEL Intercreditor Accession Agreement, any Finance Document or in any of the certificates, reports,
documents, data, notices or agreements delivered pursuant hereto or thereto. The Trustee as KEL HY Noteholder Trustee makes no representations
or warranties as to nor assumes any responsibility for the correctness of the recitals contained in the KEL Intercreditor Agreement,
and the Trustee as KEL HY Noteholder Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the
validity, execution or sufficiency of the KEL Intercreditor Agreement or the KEL Intercreditor Accession Agreement and makes no representation
with respect thereto. In entering into the KEL Intercreditor Accession Agreement, the Trustee as KEL HY Noteholder Trustee shall be entitled
to the benefit of every provision of this Indenture relating to the rights, exculpations or conduct of, affecting the liability of or
otherwise affording protection to the “Trustee” hereunder.
Neither the Trustee
as KEFI HY Noteholder Trustee nor any of its Affiliates, directors, officers, managers, employees, advisors, counsel, agents or attorneys-in-fact
shall be responsible
for or have any duty to ascertain, inquire
into or verify (i) any statement, warranty or representation made in connection with the KEFI Intercreditor Agreement, the KEFI Intercreditor
Accession Agreement or any Finance Document, or any certificate, financial statement or other document furnished at any time under or
in connection with the KEFI Intercreditor Agreement or any other Finance Document, (ii) the performance or observance of any of the terms,
covenants or agreements of any obligor in the KEFI Intercreditor Agreement or any other Finance Document, (iii) the validity, effectiveness,
genuineness, value, enforceability or sufficiency of the KEFI Intercreditor Agreement or any other Finance Document, or any other instrument
or writing furnished in connection herewith or therewith or (iv) the attachment, perfection or priority of any security interest created
or purported to be created under or in connection with any Finance Document. Without limiting the generality of the foregoing, in the
absence of its own gross negligence or willful misconduct, neither the Trustee as KEFI HY Noteholder Trustee nor any of its Affiliates,
directors, officers, managers, employees, advisors, counsel, agents or attorneys-in-fact shall be responsible to any Person for any mistake,
omission or error of judgment with respect to the value or valuation, genuineness, enforceability, existence, perfection or priority
of any of the collateral to secure parity obligations, the determination of the fair market value of any collateral to secure parity
obligations, or any other matters determined hereunder or under the other Finance Documents. Neither the Trustee as KEL HY Noteholder
Trustee nor any of its Affiliates, directors, officers, managers, employees, advisors, counsel, agents or attorneys-in-fact shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection
with the KEL Intercreditor Agreement, the KEL Intercreditor Accession Agreement or any Finance Document, or any certificate, financial
statement or other document furnished at any time under or in connection with the KEL Intercreditor Agreement or any other Finance Document,
(ii) the performance or observance of any of the terms, covenants or agreements of any obligor in the KEL Intercreditor Agreement or
any other Finance Document, (iii) the validity, effectiveness, genuineness, value, enforceability or sufficiency of the KEL Intercreditor
Agreement or any other Finance Document, or any other instrument or writing furnished in connection herewith or therewith or (iv) the
attachment, perfection or priority of any security interest created or purported to be created under or in connection with any Finance
Document. Without limiting the generality of the foregoing, in the absence of its own gross negligence or willful misconduct, neither
the Trustee as KEL HY Noteholder Trustee nor any of its Affiliates, directors, officers, managers, employees, advisors, counsel, agents
or attorneys-in-fact shall be responsible to any Person for any mistake, omission or error of judgment with respect to the value or valuation,
genuineness, enforceability, existence, perfection or priority of any of the collateral to secure parity obligations, the determination
of the fair market value of any collateral to secure parity obligations, or any other matters determined hereunder or under the other
Finance Documents.
The Trustee shall
not be required to exercise any discretion or take any action under the Deed of Guarantee, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from acting) solely upon the instructions and directions of holders
of a majority in outstanding principal amount of the Notes, and such instructions shall be binding upon all Holders; provided, however,
that the Trustee, shall not be required to take any action that (i) it in good faith believes exposes it to personal liability unless
it receives an
indemnification satisfactory to it from
the applicable Holders with respect to such action or (ii) is contrary to this Indenture or applicable law. In the absence of any such
direction, the Trustee, will have no duty or obligation to take any action under the Deed of Guarantee. The Trustee shall not be charged
with notice of any shortfalls, discharges, defaults, accelerations or other events under the Facility, the Corporate Revolver, the Senior
Notes or any other document or agreement referenced in the Deed of Guarantee unless a Responsible Officer of the Trustee shall have received
written notice thereof at the applicable Corporate Trust Office.
Notwithstanding
anything contained herein to the contrary, it is expressly understood and agreed by the parties hereto that the Deed of Guarantee Accession
Agreement has been signed by Wilmington Trust, National Association, not in its individual capacity or personally but solely in its capacity
as Trustee for the benefit of the Holders, in the exercise of the powers and authority conferred and vested in it under this Indenture,
and in no event shall Wilmington Trust, National Association, in its individual capacity, have any liability for the representations,
warranties, covenants, agreements or other obligations of any Person under the Deed of Guarantee, any Finance Document or in any of the
certificates, reports, documents, data, notices or agreements delivered pursuant hereto or thereto. The Trustee makes no representations
or warranties as to nor assumes any responsibility for the correctness of the recitals contained in the Deed of Guarantee and the Trustee
shall not be responsible or accountable in any way whatsoever for or with respect to the validity, execution or sufficiency of the Deed
of Guarantee Accession Agreement or the Deed of Guarantee and makes no representation with respect thereto. In entering into the Deed
of Guarantee Accession Agreement, the Trustee shall be entitled to the benefit of every provision of this Indenture relating to the rights,
exculpations or conduct of, affecting the liability of or otherwise affording protection to the “Trustee” hereunder.
Neither the Trustee
nor any of its Affiliates, directors, officers, managers, employees, advisors, counsel, agents or attorneys-in-fact shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with the Deed
of Guarantee or any Finance Document, or any certificate, financial statement or other document furnished at any time under or in connection
with the Deed of Guarantee or any other Finance Document, (ii) the performance or observance of any of the terms, covenants or agreements
of any obligor in the Deed of Guarantee or any other Finance Document, (iii) the validity, effectiveness, genuineness, value, enforceability
or sufficiency of the Deed of Guarantee or any other Finance Document, or any other instrument or writing furnished in connection herewith
or therewith or (iv) the attachment, perfection or priority of any security interest created or purported to be created under or in connection
with any Finance Document. Without limiting the generality of the foregoing, in the absence of its own gross negligence or willful misconduct,
neither the Trustee nor any of its Affiliates, directors, officers, managers, employees, advisors, counsel, agents or attorneys-in-fact
shall be responsible to any Person for any mistake, omission or error of judgment with respect to the value or valuation, genuineness,
enforceability, existence, perfection or priority of any of the collateral to secure parity obligations, the determination of the fair
market value of any collateral to secure parity obligations, or any other matters determined hereunder or under the other Finance Documents.
Section 13.06. Agreement
to Subordinate. Each Guarantor agrees, and each Holder by accepting a Note agrees, that the obligations of such Guarantor under its
Note Guarantee are subordinated in right of payment, to the extent and in the manner provided in the Security Documents.
Section 13.07. Additional
Note Guarantees. The Company will not permit any of its Subsidiaries that is not a Guarantor to guarantee the payment under the Senior
Notes or any indebtedness incurred to refinance the Senior Notes, unless:
(a)
such Subsidiary simultaneously executes and delivers an accession deed to the Deed of Guarantee or a supplemental indenture to
this Indenture in substantially the form of Exhibit B hereto, as the case may be, providing for a guarantee of payment of the Company’s
obligations under this Indenture and the Notes by such Subsidiary on similar terms as the guarantee of the Senior Notes or refinancing
indebtedness that resulted in the creation of such Note Guarantee; and
(b)
such Subsidiary will deliver to the Security and Intercreditor Agent and the Trustee an Opinion of Counsel to the effect that:
(i)
such accession deed or supplemental indenture and guarantee, as the case may be, have been duly executed and authorized; and
(ii)
such Note Guarantee constitutes a valid, binding and enforceable obligation of such Subsidiary (subject to customary exceptions
and limitations), except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without
limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of
equity.
(c)
Upon written request and the receipt of an Officer’s Certificate and Opinion of Counsel to the effect that the amendment
or supplement is authorized or permitted under this Indenture and the Security Documents and that all conditions precedent thereto have
been satisfied, to the extent it is necessary to amend or supplement the Security Documents to provide for a Note Guarantee, the Trustee
is hereby expressly authorized and directed to enter into any such amendments or supplements on behalf of the Holders.
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 a minimum of $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 December 15, 2029 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 December 15, 2029 and prior to the close of business
on the second Scheduled Trading Day immediately preceding the Maturity Date, in each case, based on an initial conversion rate of 142.4501
shares of Common Stock (subject to adjustment as provided in this Article
14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance with, the settlement
provisions of Section 14.02, the “Conversion Obligation”).
(b)
(i) Prior to the close of business on the Business Day immediately preceding December 15, 2029, a Holder may surrender all or
any portion of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading
Day period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined
following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement
Period was less than 98% of the product of the Last Reported Sale Price of the Common Stock 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 Section 1.01. At such time as the Company directs the Bid Solicitation Agent (if other than the
Company) in writing to solicit bid quotations, the Company shall provide written notice to the Bid Solicitation Agent (if other than
the Company) of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of
Trading Price, along with appropriate contact information for each, and the Company shall direct those securities dealers to provide
bids to the Bid Solicitation Agent in accordance with the definition of Trading Price. The Bid Solicitation Agent (if other than the
Company) shall have no obligation to solicit the Trading Price per $1,000 principal amount of Notes unless the Company has requested
such solicitation in writing, and the Company shall have no obligation to make such request (or, if the Company is 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 $2,000,000 aggregate principal amount of Notes provide the Company with reasonable evidence that the Trading Price per $1,000
principal amount of Notes on any Trading Day would be less than 98% of the product of the Last Reported Sale Price of the Common Stock
on such Trading Day and the Conversion Rate on such Trading Day, at which time the Company shall instruct the Bid Solicitation Agent
(if other than the Company) in writing 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 in accordance with the bids solicited by the Bid Solicitation Agent, beginning
on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than
or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If (x) the Company is not
acting as Bid Solicitation Agent, and the Company does not instruct the Bid Solicitation Agent in writing to determine the Trading Price
per $1,000 principal amount of Notes when obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation
Agent in writing to obtain bids and the Bid Solicitation Agent fails to make such determination, or (y) the Company is acting as Bid
Solicitation Agent and the Company fails to make such determination when obligated as provided in the preceding sentence, then, in either
case, the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Last Reported
Sale Price of the Common Stock and the Conversion Rate on each Trading Day of such
failure. If the Trading Price condition
set forth above has been met, the Company shall promptly so notify the Holders, the Trustee and the Conversion Agent (if other than the
Trustee) in writing. If, at any time after the Trading Price condition set forth above has been met, the Trading Price per $1,000 principal
amount of Notes is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate for such date, the Company shall promptly so notify the Holders of the Notes, the Trustee and the Conversion Agent (if other than
the Trustee) in writing.
(ii)
If, prior to the close of business on the Business Day immediately preceding December 15, 2029, the Company elects to:
(A)
issue to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection with a
stockholder rights plan prior to separation of such rights from the Common Stock) entitling them, for a period of not more than 45 calendar
days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that
is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and
including, the Trading Day immediately preceding the date of announcement of such issuance; or
(B)
distribute to all or substantially all holders of the Common Stock the Company’s assets, securities or rights, options or
warrants to purchase securities of the Company, which distribution has a per share value, as determined by the Company in good faith
and in a commercially reasonable manner, exceeding 10% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately
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 50
Scheduled Trading Days prior to the Ex-Dividend Date for such issuance or distribution. Once the Company has given such notice, a Holder
may surrender all or any portion of its Notes for conversion at any time until the earlier of (1) the close of business on the Business
Day immediately preceding the Ex-Dividend Date for such issuance or distribution and (2) the Company’s announcement that such issuance
or distribution will not take place, in each case, even if the Notes are not otherwise convertible at such time.
Notwithstanding
the foregoing, a Holder shall not be entitled to convert any of its Notes pursuant to this Section 14.01(b)(ii) if such Holder
participates, 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 Section 14.01(b)(ii)(A) or Section 14.01(b)(ii)(B) without having to convert its Note
as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate multiplied by the principal
amount (expressed in thousands) of Notes held by such Holder.
(iii)
If a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close
of business on the Business Day immediately preceding December 15, 2029, regardless of whether a Holder has the right to require the
Company to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a Share Exchange Event (other than
a Share Exchange Event that is solely for the purpose of changing the Company’s jurisdiction 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 the
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 December 15, 2029 (each such Fundamental Change,
Make-Whole Fundamental Change or Share Exchange Event, a “Corporate Event”), then, in each case, all or any portion
of a Holder’s Notes may be surrendered for conversion at any time from or after the effective date of such Corporate Event until
the 35th Trading Day after such effective date or, if such Corporate Event also constitutes a Fundamental Change, until the related Fundamental
Change Repurchase Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such Corporate
Event and the related conversion right no later than the Business Day after the effective date of such Corporate Event. If the Company
does not provide such notice by the Business Day immediately after such effective date, then the last day on which the Notes are convertible
pursuant to this Section 14.01(b)(iii) as a result of such Corporate Event shall be extended by the number of Business Days from,
and including, the Business Day after such effective date to, but excluding, the date on which the Company provides the notice.
(iv)
Prior to the close of business on the Business Day immediately preceding December 15, 2029, a Holder may surrender all or any
portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending on June 30,
2024 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at least 20 Trading Days (whether
or not consecutive) during the period of 30 consecutive Trading Days ending on, and including, the last Trading Day of the immediately
preceding calendar quarter is greater than or equal to 130% of the Conversion Price on each applicable Trading Day. Neither the Trustee
nor the Conversion Agent shall have any duty to determine or verify the Company’s determination of whether the conditions to conversion
set forth in this Section 14.01(b)(iv) have been met.
(v)
If the Company calls any or all of the Notes for Redemption pursuant to Article 16, Holders of any Called Notes may surrender
for conversion such Called Notes at any time prior to the close of business on the second Scheduled Trading Day immediately prior to
the related Redemption Date. After that time, the right to convert such Called Notes on account of such Redemption Notice 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 any portion
of such Called Notes until the Redemption Price has been paid or duly provided for. If the Company elects to redeem less than all of
the outstanding Notes in an
Optional Redemption pursuant to Section 16.02, and the Holder of any Note (or any owner of a beneficial interest in any Global
Note) is reasonably not able to determine, before the close of business on the 42nd Scheduled Trading Day immediately before the relevant
Redemption Date, whether such Note or beneficial interest, as applicable, is to be redeemed pursuant to such Optional Redemption, then,
notwithstanding anything to the contrary in this Indenture or the Notes, such Holder or owner, as applicable, shall be entitled to convert
such Note or beneficial interest, as applicable, at any time before the close of business on the second Scheduled Trading Day immediately
prior to such Redemption Date, unless the Company defaults in the payment of the Redemption Price, in which case such Holder or owner,
as applicable, shall be entitled to convert such Note or beneficial interest, as applicable, until the Redemption Price has been paid
or duly provided for, and in each case each such conversion shall be deemed to be of a Note called for Optional Redemption for purposes
of this Section 14.01(b)(v) and Section 14.03 (“Deemed Redemption”).
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 paying and delivering, as the case may be, to the converting Holder, in respect
of each $1,000 principal amount of Notes being converted, either solely cash (“Cash 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 December 15, 2029, shall be settled using the same Settlement Method (including
the same Specified Dollar Amount, if applicable).
(ii)
Except for any conversions of Called Notes referred to in Section 14.02(a)(i) for which the relevant Conversion Date occurs
during a Redemption Period, and any conversions for which the relevant Conversion Date occurs on or after December 15, 2029, 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 with respect to conversions with different Conversion
Dates.
(iii)
If, in respect of any Conversion Date (or one of the periods described in the fourth immediately succeeding set of parentheses,
as the case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method
in respect of such Conversion Date (or such period, as the case may be), the Company shall deliver such Settlement Notice in writing
to converting Holders (with a written copy to 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 (x) any conversions
of Called Notes for which the relevant Conversion Date occurs during a related Redemption Period, in the relevant Redemption Notice,
or (y) any conversions of Notes for which the relevant Conversion Date occurs on or after December 15, 2029, no later than December 15,
2029) (in each case, the “Settlement Method Election Deadline”). If the Company does not elect a Settlement Method
with respect to a conversion prior to the deadline set forth in the immediately preceding sentence, then the Company shall no longer
have the right to elect Cash Settlement for such conversion and the Company shall be deemed to have elected Combination Settlement in
respect of its Conversion Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000,
for 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 to Holders electing Combination Settlement in respect of its Conversion Obligation, the related Specified
Dollar Amount shall be at least equal to $1,000 per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice to
Holders electing Combination Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000
principal amount of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed
to be $1,000. If the Company calls any Notes for Redemption, and the related Redemption Date is on or after December 15, 2029, then the
Settlement Method that the Company elects to apply for conversions of Called Notes with a Conversion Date occurring during the related
Redemption Period must be the same Settlement Method that applies to all conversions with a Conversion Date that occurs on or after December
15, 2029.
By notice
to Holders of the Notes, the Trustee and the Conversion Agent (if other than the Trustee), the Company may, prior to December 15, 2029,
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 the
Notes of $1,000 or with an ability to continue to set the Specified Dollar Amount per $1,000 principal amount of the Notes at or above
any specified amount set forth in such election notice) for all Conversion Dates occurring subsequent to delivery of such notice. If
the Company elects to irrevocably fix the Settlement Method to Combination Settlement with an ability to continue to set the Specified
Dollar Amount per $1,000 principal amount of the Notes at or above a specified amount, the Company shall, after the date of such 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 in respect of the relevant conversion or conversions no later than the relevant Settlement Method Election
Deadline for such conversion or conversions as described above, or, if the Company does not timely inform the Holders converting their
Notes, the Trustee and the Conversion Agent (if other than the Trustee) of the Specified Dollar Amount, 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 deemed to be $1,000 per $1,000 principal amount of the Notes. In no event may the Company elect Combination Settlement with a Specified
Dollar Amount that is less than $1,000 per $1,000 principal amount of Notes. Notwithstanding the foregoing, no such irrevocable election
shall affect any Settlement Method theretofore elected (or deemed to be elected) with respect to any Note pursuant to this Section
14.02. For the avoidance of doubt, such an irrevocable election, if made, shall be effective without the need to amend this Indenture
or the Notes, including pursuant to Section 10.01(g). However, the Company may nonetheless choose to execute such an amendment
at the Company’s option.
If the
Company irrevocably fixes the Settlement Method pursuant to the immediately preceding paragraph, then the Company shall either post the
fixed Settlement Method 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 or, if applicable, 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 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 40 consecutive VWAP Trading Days during the related Observation Period; and
(B)
if the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted,
a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 40 consecutive VWAP Trading Days during the related
Observation Period (plus cash in lieu of any fractional share of Common Stock issuable upon such conversion).
(v)
The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company
as soon as reasonably practicable following the last day of the Observation Period. Following such determination of the Daily Settlement
Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share
of Common Stock, the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts
or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common
Stock. The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.
(b)
Subject to Section 14.02(e), before any Holder of a Note
shall be entitled to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures
of the Depositary in effect at that time and, if required, pay to the Company funds equal to interest payable on the next Interest Payment
Date to which such Holder is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (A) complete,
manually sign and deliver a medallion-stamped guaranteed irrevocable notice to the Conversion Agent 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, (B) 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, (C) if required, furnish appropriate endorsements and transfer documents and (D) if required, pay to the Company funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The
Trustee (and if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the
Conversion Date for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such
Holder has also delivered a 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.
Subject to any procedures
or requirements of the applicable Depositary in the case of any Global Note, 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 and, if applicable, deliver, the consideration due
in respect of the Conversion Obligation on the second Business Day immediately following the last VWAP Trading Day of the Observation
Period. If any shares of Common Stock are due to a converting Holder, the Company shall issue and deliver (or otherwise cause to be issued
and delivered) 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 or delivery 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 Company may refuse to deliver
the certificates (or book-entry evidence) representing the shares of Common Stock being issued in a name other than the Holder’s
name until the Company receives a sum sufficient to pay any tax that is due by such Holder in accordance with the immediately preceding
sentence.
(f)
Except as provided in Section 14.04, no adjustment shall
be made for dividends on any shares of Common Stock issued upon the conversion of any Note as provided in this Article 14.
(g)
Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the direction of the Trustee, shall make
a notation on such Global Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee
in writing of any conversion of Notes effected through any Conversion Agent other than the Trustee.
(h)
Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth
below. The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the
principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result,
accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited. Upon a conversion of Notes, accrued and unpaid interest will be deemed to be paid first out of
the cash paid upon such conversion. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record
Date but prior to the open of business on the immediately following Interest Payment Date, Holders of such Notes as of the close of business
on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date
to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest
payable on the Notes so converted on the corresponding Interest Payment Date (regardless of whether the converting Holder was the Holder
of record on the corresponding Regular Record Date); provided, however, that no such payment shall be required (i) for conversions
following the Regular Record Date immediately preceding the Maturity Date; (ii) with respect to conversions of any Called Notes, if the
Company has specified a Redemption Date that is after a Regular Record Date and on or prior to the second Business Day immediately following
the corresponding Interest Payment Date; (iii) if the Company has specified a Fundamental Change Repurchase Date that is after a Regular
Record Date and on or prior to the Business Day immediately following the corresponding
Interest Payment Date; or (iv) to the
extent of any Defaulted Amounts, if any Defaulted Amounts exists at the time of conversion with respect to such Note. Therefore, for
the avoidance of doubt, all Holders of record as of the close of business on the Regular Record Date immediately preceding the Maturity
Date, any Fundamental Change Repurchase Date and any Redemption Date as described in the preceding clauses (i) through (iii)
shall receive the full interest payment due on the Maturity Date or other applicable Interest Payment Date in cash regardless of whether
their Notes have been converted following such Regular Record Date, and the converting Holder shall not be required to make a corresponding
payment.
(i)
If the Company elects (or is deemed to have elected) to satisfy the related Conversion Obligation by Combination Settlement, 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 as of the close of business on the last VWAP Trading Day of the relevant Observation Period. 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 last VWAP Trading Day of
the relevant Observation Period. Subject to any procedures or requirements of the applicable Depositary in the case of any Global Note,
for each Note surrendered for conversion, if the Company has elected Combination Settlement, the full number of shares that shall be
issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement Amounts for the relevant Observation
Period and any fractional shares remaining after such computation shall be paid in cash.
Section 14.03.
Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes or Redemption Notice.
(a) If (x) the Effective Date of a Make-Whole Fundamental Change occurs prior to the Maturity Date or (y) the Company gives a Redemption
Notice with respect to any or all of the Notes in accordance with Article 16 and, in each case, a Holder elects to convert any
Note in connection with such Make-Whole Fundamental Change or convert its Called Notes in connection with a Redemption Notice, as the
case may be, then the Company shall, under the circumstances set forth 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 set forth below. A conversion
of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole Fundamental Change if the relevant
Notice of Conversion is received by the Conversion Agent from, and including, the Effective Date of such Make-Whole Fundamental Change
up to, and including, the Business Day immediately prior to the related Fundamental Change Repurchase Date (or, in the case of a Make-Whole
Fundamental Change that would have been a Fundamental Change but for the proviso in clause (b) of the definition thereof, the
35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental Change) (such period, the “Make-Whole
Fundamental Change Period”). A conversion of Called Notes shall be deemed for these purposes to be “in connection with”
a Redemption Notice if the relevant Conversion Date occurs during the related Redemption Period. For the avoidance of doubt, the
Company shall increase the Conversion
Rate in connection with a Redemption Notice only with respect to conversions of Called Notes, and not for Notes that are not Called Notes.
Accordingly, if the Company elects to redeem less than all of the outstanding Notes in an Optional Redemption pursuant to Section
16.02, Holders of the Notes that are not Called Notes shall not be entitled to convert such Notes on account of the related Redemption
Notice and shall not be entitled to an increased Conversion Rate for conversions of such Notes on account of the Redemption Notice during
the related Redemption Period if such Notes are otherwise convertible.
(b)
Upon surrender of Notes for conversion in connection with a Make-Whole Fundamental Change or Redemption Notice, the Company shall,
at its option, satisfy the related Conversion Obligation by Cash Settlement or Combination Settlement in accordance with Section
14.02 (after giving effect to any increase in the Conversion Rate pursuant to Section 14.03(a)); provided, however,
that if, at the effective time of a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change that
constitutes a Share Exchange Event, the Reference Property of which is composed entirely of cash, for any conversion of Notes following
the Effective Date of such Make-Whole Fundamental Change, the Conversion Obligation shall be calculated based solely on the Stock Price
for the transaction and shall be deemed to be an amount of cash per $1,000 principal amount of converted Notes equal to the Conversion
Rate (including any adjustment for Additional Shares), multiplied by such Stock Price. In such event, the Conversion Obligation
shall be paid to Holders in cash on the second Business Day following the Conversion Date. The Company shall notify the Holders, the
Trustee and the Conversion Agent (if other than the Trustee) of the Effective Date of any Make-Whole Fundamental Change and, no later
than five Business Days after such Effective Date, issue a press release announcing such Effective Date, disclose such Effective Date
in a current report on Form 8-K or post such Effective Date on the Company’s website.
(c)
The number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the
table below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective or the date of the Redemption Notice,
as the case may be (in each case, the “Effective Date”), and the price paid (or deemed to be paid) per share of the
Common Stock in the Make-Whole Fundamental Change, or with respect to a Redemption, the average of the Last Reported Sale Prices of the
Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately preceding the date of such Redemption
Notice, as the case may be (the “Stock Price”). If the holders of the Common Stock receive in exchange for their Common
Stock only cash in a Make-Whole Fundamental Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall
be the cash amount paid per share. Otherwise, the Stock Price with respect to a Make-Whole Fundamental Change shall be the average of
the Last Reported Sale Prices of the Common Stock over the five Trading Day period ending on, and including, the Trading Day immediately
preceding the Effective Date of the Make-Whole Fundamental Change. The Company shall make appropriate adjustments to the Stock Price,
in its good faith determination and in a commercially reasonable manner, to account for any adjustment to the Conversion Rate that becomes
effective, or any event requiring an adjustment to the Conversion Rate where the
Ex-Dividend Date, Effective Date (as
such term is used in Section 14.04) or expiration date of the event occurs during such five consecutive Trading Day period.
(d)
The Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion
Rate 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.
(e)
The following table sets forth the number of Additional Shares of Common Stock 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 |
$5.40 |
$6.00 |
$6.50 |
$7.02 |
$8.00 |
$9.13 |
$11.00 |
$13.00 |
$16.00 |
$20.00 |
$25.00 |
$32.00 |
$41.00 |
$52.00 |
March 8, 2024 |
42.7350 |
35.1300 |
30.2292 |
26.1382 |
20.3925 |
15.8488 |
11.0891 |
8.0215 |
5.2975 |
3.2790 |
1.8916 |
0.8713 |
0.2644 |
0.0000 |
March 15, 2025 |
42.7350 |
35.1300 |
29.9308 |
25.6040 |
19.6163 |
14.9869 |
10.2764 |
7.3408 |
4.8100 |
2.9760 |
1.7252 |
0.8013 |
0.2444 |
0.0000 |
March 15, 2026 |
42.7350 |
34.2850 |
28.7323 |
24.2051 |
18.0663 |
13.4633 |
8.9709 |
6.3000 |
4.0894 |
2.5305 |
1.4732 |
0.6856 |
0.2054 |
0.0000 |
March 15, 2027 |
42.7350 |
32.7717 |
26.8431 |
22.0926 |
15.8375 |
11.3571 |
7.2509 |
4.9808 |
3.2081 |
1.9965 |
1.1716 |
0.5444 |
0.1546 |
0.0000 |
March 15, 2028 |
42.7350 |
30.6900 |
24.1954 |
19.1296 |
12.7663 |
8.5542 |
5.1009 |
3.4177 |
2.2113 |
1.4040 |
0.8372 |
0.3888 |
0.1010 |
0.0000 |
March 15, 2029 |
42.7350 |
27.5267 |
19.9877 |
14.4046 |
8.1000 |
4.6605 |
2.4945 |
1.6754 |
1.1325 |
0.7465 |
0.4544 |
0.2094 |
0.0434 |
0.0000 |
March 15, 2030 |
42.7350 |
24.2166 |
11.3961 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
0.0000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The exact Stock
Price and Effective Date may not be set forth in the table above, in which case:
(i)
if the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the
table, the number of Additional Shares by which the Conversion Rate will 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 year;
(ii)
if the Stock Price is greater than $52.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in
the column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion
Rate; and
(iii)
if the Stock Price is less than $5.40 per share (subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table above
pursuant to subsection (d)
above), no Additional Shares shall be added to the Conversion Rate.
Notwithstanding
the foregoing, in no event shall the Conversion Rate per $1,000 principal amount of Notes exceed 185.1851 shares of Common Stock, subject
to adjustment in the same manner as the Conversion Rate pursuant to Section 14.04.
(f)
Nothing in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect
of a Make-Whole Fundamental Change.
Section 14.04.
Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events
occurs, except that the Company shall not make any adjustments to the Conversion Rate if each Holder of the Notes participates (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 such Holder’s Notes, as if such Holder 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 all or substantially all outstanding
shares of the Common Stock, or if the Company effects a share split or share combination, the Conversion Rate shall be adjusted based
on the following formula:
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_001.gif)
where,
CR0 |
= |
the Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend Date for such issuance; |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_022.gif) |
= |
the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date; |
|
|
|
OS0 |
= |
the number of shares of Common Stock outstanding
immediately prior to the open of business on such Ex-Dividend Date; |
|
|
|
X |
= |
the total number of shares of Common Stock
issuable pursuant to such rights, options or warrants; and |
|
|
|
Y |
= |
the number of shares of Common Stock equal
to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale
Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the date of announcement of the issuance of such rights, options or warrants. |
Any adjustment made under this Section
14.04(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or
immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend
or distribution of the type described in this Section 14.04(a) is declared but not so paid or made, the Conversion Rate shall
be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b)
If the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants (other than in connection
with a stockholders’ rights plan) entitling them, for a period of not more than 45 calendar days after the announcement date of
such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last
Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately
preceding the date of announcement of such issuance, the Conversion Rate shall be increased based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_004.gif)
where,
CR0 |
= |
the Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend Date for such issuance; |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_021.gif) |
= |
the Conversion Rate in effect immediately after
the open of business on such Ex-Dividend Date; |
|
|
|
OS0 |
= |
the number of shares of Common Stock outstanding
immediately prior to the open of business on such Ex-Dividend Date; |
|
|
|
X |
= |
the total number of shares of Common Stock
issuable pursuant to such rights, options or warrants; and |
|
|
|
Y |
= |
the number of shares of Common Stock equal
to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale
Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the date of announcement of the issuance of such rights, options or warrants. |
Any increase made under this Section
14.04(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after
the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after
the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be
in effect had the increase with
respect to the issuance of such rights,
options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights,
options or warrants are not so issued, the Conversion Rate shall be decreased, effective as of the date the Board of Directors determines
not to issue such rights, options or warrants, to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such
issuance had not occurred.
For purposes of
this Section 14.04(b) and for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants
entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices
of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date
of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Company in good faith and in a commercially reasonable
manner.
(c)
If the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company
or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock,
excluding (i) dividends, distributions or issuances as to which an adjustment was effected (or would have been effected but for the 1%
Exception) pursuant to Section 14.04(a) or Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as
to which the provisions set forth in Section 14.04(d) shall apply, (iii) rights issued pursuant to a rights plan, except to the
extent set forth in Section 14.11, (iv) any distributions of Reference Property in exchange for the Common Stock in connection
with a Share Exchange Event 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:
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_005.gif)
where,
CR0 |
= |
the Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend Date for such distribution; |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_020.gif) |
= |
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 and in a commercially reasonable manner) 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, effective as of the
date the Board of Directors determines not to pay or make such distribution, to the Conversion Rate that would then be in effect if such
distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than
“SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of
each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed
Property, the amount and kind of Distributed Property such Holder would have received if such Holder owned a number of shares of Common
Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If the Company determines the “FMV”
(as defined above) of any distribution for purposes of this Section 14.04(c) by reference to the actual or when-issued trading
market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding
the Ex-Dividend Date for such distribution.
With respect to
an adjustment pursuant to this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common
Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business
unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”),
the Conversion Rate shall be increased based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_006.gif)
where,
CR0 |
= |
the Conversion Rate in effect immediately
prior to the end of the Valuation Period; |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_019.gif) |
= |
the Conversion Rate in effect immediately after
the end of the Valuation Period; |
|
|
|
FMV0 |
= |
the average of the Last Reported Sale Prices
of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common
Stock over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation
Period”); and |
MP0 |
= |
the average of the Last Reported Sale Prices
of the Common Stock over the Valuation Period. |
The increase to
the Conversion Rate under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period;
provided that, for any VWAP Trading Day that falls within the relevant Observation Period for such conversion and within the Valuation
Period, references to “10” in the preceding paragraph shall be deemed to be replaced with such lesser number of Trading Days
as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, such VWAP Trading Day in determining the
Conversion Rate as of such VWAP Trading Day. If any dividend or distribution that constitute 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 such
dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared
or announced.
For purposes of
this Section 14.04(c) (and subject in all respect to Section 14.11),
rights, options or warrants distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase
shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights,
options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred
with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common
Stock, shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion
Rate under this Section 14.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights,
options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate
shall be made under this Section 14.04(c). If any such right, option or warrant, including any such existing rights, options or
warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or
warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence
of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or
warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date
without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options
or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that
was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section
14.04(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise
by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options
or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase
price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained
such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or
purchase, and (2) in the case of such
rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall
be readjusted as if such rights, options and warrants had not been issued.
For purposes of
Section 14.04(a), Section 14.04(b) and
this Section 14.04(c), if any dividend or distribution to which this Section 14.04(c) is applicable also includes
one or both of:
(A)
a dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”);
or
(B)
a dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause
B Distribution”),
then, in either case,
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend
or distribution to which this Section 14.04(c) is applicable (the “Clause C Distribution”) and any Conversion
Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause
A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment
required by Section 14.04(a) and Section 14.04(b) with respect thereto shall then be made, except that, if determined by
the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the
Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause
B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective
Date” within the meaning of Section 14.04(a) or “outstanding immediately prior to the open of business on such Ex-Dividend
Date” within the meaning of Section 14.04(b).
(d)
If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Rate shall
be adjusted based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_007.gif)
where,
CR0 |
= |
the Conversion Rate in effect immediately
prior to the open of business on the Ex-Dividend Date for such dividend or distribution; |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_017.gif) |
= |
the Conversion Rate in effect immediately after
the open of business on the Ex-Dividend Date for such dividend or distribution; |
|
|
|
SP0 |
= |
the Last Reported Sale Price of the Common
Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and |
C |
= | the amount in cash per share the Company
distributes to all or substantially all holders of the Common Stock. |
Any increase pursuant to this Section
14.04(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If
such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors
determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than
“SP0” (as defined above), then, in lieu of the foregoing increase, each Holder of a Note shall receive, for each
$1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash
that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend
Date for such cash dividend or distribution.
(e)
If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock (other
than an odd-lot tender offer), to the extent that the cash and value of any other consideration included in the payment per share of
the Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period
commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such
tender or exchange offer, the Conversion Rate shall be increased based on the following formula:
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_008.gif)
where,
CR0 |
= |
the Conversion Rate in effect immediately
prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the
date such tender or exchange offer expires; |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_014.gif) |
= |
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 and in a commercially reasonable manner) paid or payable for shares of
Common Stock purchased in such tender or exchange offer; |
|
|
|
OS0 |
= |
the number of shares of Common Stock outstanding
immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common
Stock accepted for purchase or exchange in such tender or exchange offer); |
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_012.gif) |
= |
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 |
|
|
|
![](https://www.sec.gov/Archives/edgar/data/1509991/000095010324003601/image_013.gif) |
= |
the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding
the date such tender or exchange offer expires. |
The increase to
the Conversion Rate under this Section 14.04(e) shall occur at
the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender
or exchange offer expires; provided that, for any VWAP Trading Day that falls within the relevant Observation Period for such
conversion and within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of
any tender or exchange offer, references to “10” or “10th”
in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the
Trading Day next succeeding the expiration date of such tender or exchange offer to, and including, such VWAP Trading Day in determining
the Conversion Rate as of such VWAP Trading Day.
If the Company or
one of its Subsidiaries is obligated to purchase the Common Stock pursuant to any such tender or exchange offer described in this Section
14.04(e) but the Company or such Subsidiary is permanently prevented by applicable
law from effecting an such purchase or all such purchases are rescinded, the applicable 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 purchases
that have been effected.
(f)
[Reserved].
(g)
Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any
securities convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such
convertible or exchangeable securities.
(h)
In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section
14.04, and to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Company’s
securities are then listed, the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20
Business Days if the Board of Directors determines that such increase would be in the Company’s best interest. In addition, to
the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities
are then listed, the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders
of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights
to acquire shares of Common Stock) or similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding two
sentences, the Company shall deliver
to the Holder of each Note a notice of the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(i)
Notwithstanding anything to the contrary in this Article 14, the Conversion Rate shall not be adjusted:
(i)
upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends
or interest payable on the Company’s securities and the investment of additional optional amounts in shares of Common Stock under
any plan;
(ii)
upon the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future
employee, director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;
(iii)
upon the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible
security not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;
(iv)
upon the repurchase of any shares of Common Stock pursuant to an open market share repurchase program or other buy-back transaction
that is not a tender offer or exchange offer of the nature described under Section 14.04(e);
(v)
solely for a change in the par value of the Common Stock; or
(vi)
for accrued and unpaid interest, if any.
(j)
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)
The Company shall not be required to make an adjustment to the Conversion Rate unless the adjustment would require a change of
at least 1% in the Conversion Rate; provided that the Company shall carry forward, and take into account in any future adjustment,
any adjustments that are less than 1% of the Conversion Rate and make such carried-forward adjustments, regardless of whether the aggregate
adjustment is at least 1%, (i) on the effective date for any Make-Whole Fundamental Change and/or Fundamental Change, (ii) prior to the
close of business on the Conversion Date in respect of any conversion following a replacement of the Common Stock by Reference Property
consisting solely of cash, (iii) prior to the open of business on each VWAP Trading Day of any Observation Period in respect of the conversion
of any Note (other than as set forth in clause (ii) above), (iv) on the date the Company sends a Redemption Notice for all or
any Notes, (v) on the date on which all such deferred adjustments would result in an aggregate change to the Conversion Rate of at least
1% and (vi) on December 15, 2029.
(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.
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 for determining the Stock Price for purposes of a Make-Whole Fundamental Change or Redemption),
the Company shall make appropriate adjustments to each in good faith and in a commercially reasonable manner 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), 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 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 or disposition to a third party of all or substantially all the consolidated assets of the Company
and the Company’s Subsidiaries, taken as a whole, or
(iv)
any statutory share exchange,
in each case, as a result of which the
Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination
thereof) (any such event, a “Share Exchange Event”), then, at and after the effective time of such Share Exchange
Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes
into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof)
that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would
have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property”
meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Share
Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person,
as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such
change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective
time of the Share Exchange Event (I) the amount payable in cash upon conversion of the Notes in accordance with Section 14.02
shall continue to be payable in cash, (II) the Company shall continue to have the right to determine the form of consideration to be
paid or delivered, as the case may be, in respect of the portion, if any, of its Conversion Obligation in excess of the aggregate principal
amount of the Notes being converted in accordance with Section 14.02,
(III) the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section
14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock
would have been entitled to receive in such Share Exchange Event and (IV) the Daily VWAP and the Last Reported Sale Price (including,
without limitation, for purposes of Article 16) shall be calculated based on the value (as determined by, or in the manner proscribed
by, the Board of Directors) of a unit of Reference Property.
If the Share Exchange
Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined
based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall
be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock, and
(ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the weighted average of the consideration
referred to in clause (i) attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Share
Exchange Event, then for all conversions for which the relevant Conversion Date occurs after the effective date of such Share
Exchange Event (A) the consideration
due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect
on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price
paid per share of Common Stock in such Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash
to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify, in writing,
the Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such
determination is made.
Such supplemental
indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be
as nearly equivalent as is possible to the adjustments provided for in this Article 14. If, in the case of any Share Exchange
Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof)
of a Person other than the successor or purchasing Person, as the case may be, in such Share Exchange Event, then such supplemental indenture
shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the
Notes as the Board of Directors shall consider in good faith necessary by reason of the foregoing, including the provisions providing
for the purchase rights set forth in Article 15.
If the Notes become
convertible into Reference Property, the Company shall notify the Trustee and issue a press release containing the relevant information,
disclose the relevant information in a current report on Form 8-K or post such information on the Company’s website.
(b)
When the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company
shall promptly file with the Trustee an Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash,
securities or property or asset that will comprise a unit of Reference Property after any such Share Exchange Event, any adjustment to
be made with respect thereto and that all conditions precedent have been complied with, and shall promptly deliver notice thereof to
all Holders. The Company shall cause notice of the execution of such supplemental indenture to be delivered to each Holder within 20
days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c)
The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07.
None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes, 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 will 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 further 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 will, 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 will use its reasonable best efforts to 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.
(d)
If, at the time of any conversion of the Notes, the Common Stock remains listed on the Official List of the Financial Conduct
Authority in the United Kingdom and admitted to trading on the London Stock Exchange’s main market for listed securities, the Company
shall use reasonable endeavors to ensure that the Common Stock to be issued upon conversion of the Notes, if any, will, as soon as is
reasonably practicable, be admitted to listing on the Official List and to trading on the main market of the London Stock Exchange.
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).
Section 14.10.
[Reserved].
Section 14.11. Stockholder
Rights Plans. If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if
any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing
the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such
stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have
separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion
Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock
Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption
of such rights.
Section 14.12. Exchange
in Lieu of Conversion. (a) When a Holder surrenders Notes for conversion, the Company may, at its election, direct the surrender
of, on or prior to the Scheduled Trading Day immediately following the relevant Conversion Date, such Notes to a financial institution
designated by the Company for exchange in lieu of conversion (each, an “Exchange in Lieu of Conversion”). In order
to accept any Notes surrendered for conversion, the designated financial institution must agree to, in exchange for such Notes, pay cash
up to the aggregate principal amount of the Notes to be converted and pay or deliver, as the case may be, cash, shares of Common Stock
or a combination of cash and shares of Common Stock in respect of the remainder, if any, of the Company’s Conversion Obligation
in excess of the aggregate principal amount of the Notes being converted that would otherwise be due upon conversion in accordance with
Section 14.02, as elected by the Company (the “Exchange Consideration”). By the close of business on the Scheduled
Trading Day immediately following the relevant Conversion Date, the Company shall notify the Holder surrendering Notes for conversion,
the Trustee and the Conversion Agent (if other than the Trustee) in writing that the Company has directed the designated financial institution
to make an Exchange in Lieu of Conversion.
(b)
If the designated financial institution accepts any such Notes, it shall pay and, if applicable, deliver the Exchange Consideration
to such Holder on the second Business Day immediately following the last VWAP Trading Day of the applicable Observation Period (or as
otherwise provided under Section 14.07(a) or Section 14.03(b)). If the designated financial institution agrees to accept any Notes for
exchange but does not timely pay or deliver the Exchange Consideration or if such designated financial institution does not accept the
Notes for exchange, the Company shall convert the Notes and pay cash up to the aggregate principal amount of the Notes to be converted
and pay or deliver, as the case may be, cash, shares of
Common Stock or a combination thereof
in respect of the remainder, if any, of its Conversion Obligation in excess of the aggregate principal amount of such Notes on the second
Business Day immediately following the last VWAP Trading Day of the applicable Observation Period (or as otherwise provided under Section
14.07(a) or Section 14.03(b)) in accordance with Section 14.02.
(c)
The Company’s designation of a financial institution to which the Notes may be submitted for exchange does not require the
financial institution to accept any Notes (unless the financial institution has separately made an agreement with the Company). The Company
may, but shall not be obligated to, enter into a separate agreement with any designated financial institution that would compensate the
Company for any such transaction. Any Notes exchanged by any designated financial institution pursuant to this Section 14.12 shall
remain outstanding, notwithstanding the surrender of such Notes and shall be subject to the applicable procedures of the Depositary.
(d)
The Company, the Conversion Agent and the Holders surrendering their Notes for conversion shall cooperate to cause such Notes
to be delivered to the designated financial institution and the Conversion Agent shall be entitled to conclusively rely on the Company’s
instructions in connection with effecting any exchange election and shall have no liability for any such exchange election outside of
its control.
Article
15
Repurchase of Notes at Option of Holders
Section 15.01.
[Intentionally Omitted].
Section 15.02.
Repurchase at Option of Holders Upon a Fundamental Change. (a) If a 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
thereof that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental Change
Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon to,
but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless the Fundamental
Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date
relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest to Holders of record as of such Regular
Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the principal amount of Notes to be repurchased pursuant
to this Article 15. The Fundamental Change Repurchase Date shall be subject to postponement 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 applicable Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”)
in the form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance
with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case on or
before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and
(ii)
delivery of the Notes, if the Notes are Physical Notes, to the applicable 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 applicable Paying
Agent, or book-entry transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each
case such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.
The Fundamental
Change Repurchase Notice in respect of any Notes to be repurchased shall state:
(i)
in the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;
(ii)
the portion of the principal amount of Notes to be repurchased, which must be in an Authorized Denomination; and
(iii)
that the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and this Indenture;
provided, however, that
if the Notes are Global Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.
Notwithstanding
anything herein to the contrary, any Holder delivering to the applicable 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 applicable Paying Agent in accordance with Section 15.03.
The applicable Paying
Agent shall promptly notify the Company of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof.
(c)
On or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide
to all Holders of Notes, the Trustee, the Conversion Agent (if other than the Trustee) and the applicable Paying Agent (in the case of
a Paying Agent other than the Trustee or the Paying Agent for the Notes as defined in Section 4.02) a written notice (the “Fundamental
Change Company Notice”) of the occurrence of the
effective date of the Fundamental Change
and of the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall
be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures of
the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set forth in
the Fundamental Change Company Notice on the Company’s website or through such other public medium as the Company may use at that
time. Each Fundamental Change Company Notice shall specify:
(i)
the events causing the Fundamental Change;
(ii)
the effective date of the Fundamental Change;
(iii)
the last date on which a Holder may exercise the repurchase right pursuant to this Article 15;
(iv)
the Fundamental Change Repurchase Price;
(v)
the Fundamental Change Repurchase Date;
(vi)
the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii)
if applicable, the Conversion Rate and any adjustments to the Conversion Rate;
(viii)
that the Notes with respect to which a Fundamental Change Repurchase Notice has been delivered by a Holder may be converted only
if the Holder 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
request, the Trustee shall give such notice in the Company’s name and at the Company’s expense; provided, however,
that, in all cases, the text of such Fundamental Change Company Notice shall be prepared by the Company.
(d)
Notwithstanding the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental
Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date
(except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price
with respect to such Notes). The
applicable Paying Agent will promptly
return to the respective Holders thereof any Physical Notes held by it during the acceleration of the Notes (except in the case of an
acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase Price with respect to such Notes),
or any instructions for book-entry transfer of the Notes in compliance with the procedures of the Depositary shall be deemed to have
been cancelled, and, upon such return or cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto
shall be deemed to have been withdrawn.
(e)
Notwithstanding anything to the contrary in this Article 15,
the Company shall not be required to repurchase or make an offer to repurchase Notes upon the occurrence of 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 set forth
in this Article 15, and such third party repurchases all Notes properly surrendered and not validly withdrawn upon such offer
in compliance with the requirements set forth in this Article 15 for repurchase upon such Fundamental Change by the Company.
(f)
The Company may appoint a tender agent in connection with any repurchase pursuant to this Article 15, in which case such
tender agent shall be the Paying Agent in connection with such repurchase.
Section 15.03.
Withdrawal of Fundamental Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part)
by means of a written notice of withdrawal delivered to the Corporate Trust Office of the applicable 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 aggregate principal amount of the Notes with respect to which such notice of withdrawal is being submitted,
(ii)
if Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being
submitted, and
(iii)
the aggregate principal amount, if any, of such Note that remains subject to the original Fundamental Change Repurchase Notice,
which portion must be in an Authorized Denomination;
provided, however, that
if the Notes are Global Notes, the notice must comply with appropriate 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 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
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 or applicable Paying
Agent 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.
(b)
If by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by
the Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental
Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly
withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry transfer
of the Notes has been made or the Notes have been delivered to the Trustee 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, if applicable, accrued and
unpaid interest).
(c)
Upon surrender of a Physical 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 Physical Note in an Authorized Denomination equal in principal amount
to the unrepurchased portion of the Physical Note surrendered.
Section 15.05. Covenant
to Comply with Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company will, if required by
applicable law:
(a)
comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act;
(b)
file a Schedule TO or any other required schedule under the Exchange Act; and
(c)
otherwise comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;
in each case, so as
to permit the rights and obligations under this Article 15 to be exercised in the time and in the manner specified in this Article
15. To the extent that the provisions of any securities law or regulations enacted after the date of this Indenture conflict with this
Article 15, the Company shall comply with the applicable securities laws or regulations and will not be deemed to have breached
the Company’s obligations under this Article 15 by virtue of such conflict.
Article
16
Redemption
Section 16.01. Redemption
for Changes in the Tax Laws of the Relevant Taxing Jurisdiction. (a) The Company or any successor may redeem the Notes, in whole
but not in part (except in respect of Holders that elect otherwise as described below), at the Company’s or any successor’s
option (a “Tax Redemption”), at the Redemption Price, if the Company or any successor is, or on the next date on which
any amount would be payable in respect of the Notes, would be, required to pay any Additional Amounts on the Notes, or any Guarantor
or any successor is required to pay Additional Amounts on any Note Guarantee. The Company or any successor shall not be entitled to redeem
the Notes pursuant this Section 16.01 unless the Company, a Guarantor or any successor is required to pay such Additional Amounts
due to a change in or amendment to the law (or any rules or regulations thereunder) of the Relevant Taxing Jurisdiction, including a
change in or amendment to an official interpretation, administration or application of such laws, rules, or regulations (including a
holding by a court of competent jurisdiction), which change or amendment becomes effective or is announced on or after the date of this
Indenture or, in the event a successor which is not incorporated pursuant to the laws of the United States has assumed the obligations
under the Notes, on or after the date a successor assumes the obligations under the Notes (a “Change in Tax Law”).
(b)
In the event that the Company or any successor elects to redeem the notes in a Tax Redemption, the Company or such successor shall
deliver to the Trustee and the Paying Agent: (i) an Officer’s Certificate, signed in the name of the Company or any successor,
stating that (A) the Company or such successor is entitled to redeem the Notes pursuant to Section 16.01(a) and the condition
or conditions precedent to the right of the Company or any successor to so redeem have occurred or been satisfied and (B) the payment
of Additional Amounts cannot be avoided by the relevant payor taking reasonable measures available to it; provided, however,
that reasonable measures shall not include changing the payor’s jurisdiction of incorporation or the location of its principal
executive office or registered office; and (ii) an opinion of tax counsel of nationally recognized standing in the Relevant Taxing Jurisdiction
to the effect that the Company, a Guarantor or any successor has or will become obligated to pay Additional Amounts as a result of a
Change in Tax Law, and that all governmental requirements necessary for the Company or any successor to effect the Tax Redemption have
been complied with.
(c)
Notwithstanding anything to the contrary in this Article 16, if the Company has given a Redemption Notice for a Tax Redemption
as described in Section 16.03, each Holder shall have the right to elect that such Holder’s Notes shall not be subject to
the Tax Redemption. If a Holder elects that its Notes shall not be subject to the Tax Redemption, the Company shall not be required to
pay Additional Amounts with respect to the payment of principal of (including the Redemption Price and the Fundamental Change Repurchase
Price, if applicable), or the payment of interest on, such Holder’s Notes following the related Redemption Date, but only to the
extent that such Additional Amounts would otherwise have been payable solely as a result of the Change in Tax Law that relates to such
Tax Redemption, and all subsequent payments of principal of (including the Redemption Price and the Fundamental Change Repurchase Price,
if applicable), or payments of interest on, such Holder’s Notes shall be subject to any tax required
to be withheld or deducted under the
laws of a Relevant Taxing Jurisdiction. The obligation to pay Additional Amounts to any electing Holder for the payment of principal
of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), or the payment of interest on, any Note
made in periods prior to the related Redemption Date shall remain, subject to the exceptions set forth under Section 4.10.
Holders must exercise their option to elect to avoid a Tax Redemption by written notice to the Trustee no later than the 15th calendar
day prior to the related Redemption Date; provided that a Holder that complies with the requirements for conversion set forth
in Section 14.02 before the close of business on the second Scheduled Trading Day immediately preceding the related Redemption
Date (or, if the Company fails to pay the Redemption Price, such later date on which the Company pays the Redemption Price) shall be
deemed to have validly delivered a notice of its election not to have its Notes redeemed.
Section 16.02. Optional
Redemption on or after March 22, 2027. (a) Except as set forth in Section 16.01, the Notes shall not be redeemable by the
Company prior to March 22, 2027. On or after March 22, 2027, the Company may redeem (an “Optional Redemption”) for
cash all or any portion of the Notes (subject to the Partial Redemption Limitation), at the Redemption Price, if the Last Reported Sale
Price of the Common Stock has been at least 130% of the Conversion Price then in effect for at least 20 Trading Days (whether or not
consecutive), including the Trading Day immediately preceding the date on which the Company provides the Redemption Notice in connection
with such Optional Redemption in accordance with Section 16.03, during any 30 consecutive Trading Day period ending on, and including,
the Trading Day immediately preceding the date on which the Company provides the Redemption Notice in connection with such Optional Redemption
in accordance with Section 16.03.
(b)
If the Company decides to redeem fewer than all of the outstanding Notes pursuant to an Optional Redemption, then the excess of
the principal amount of Notes outstanding as of the time the Company sends the related Redemption Notice over the aggregate principal
amount of Notes set forth in such Redemption Notice as being subject to such Optional Redemption must be at least $75 million (such requirement,
the “Partial Redemption Limitation”). If the Company decides to redeem fewer than all of the outstanding Notes pursuant
to 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 the Company decides to redeem fewer than all of the outstanding Notes
pursuant to an Optional Redemption and the Notes to be redeemed are not Global Notes then held by the Depositary, the Trustee shall select
the Notes or portions thereof to be redeemed (in Authorized Denominations) 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 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 such partial Optional Redemption.
Section 16.03. Notice
of Redemption. (a) In case the Company exercises its Tax Redemption right to redeem all of the Notes pursuant to Section 16.01
or its Optional Redemption right to redeem all or any portion of the Notes pursuant to Section 16.02, it shall fix a date for
such Redemption (each, a “Redemption Date”) and the Company (or, at the Company’s written request (with such
request including an Officer’s Certificate requesting that
the Trustee give such Redemption Notice,
setting forth the information to be stated in such Redemption Notice as provided in Section 16.03(c), and stating that all conditions
precedent to the delivery of such Redemption Notice have been or will be complied with) received by the Trustee at least two Business
Days prior to the date of giving the Redemption Notice (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 written notice of such Redemption (a “Redemption
Notice”) not less than 50 nor more than 65 Scheduled Trading Days prior to the Redemption Date to the Trustee, the Conversion
Agent (if other than the Trustee), the Paying Agent (if other than the Trustee) and each Holder. The Redemption Date must be a Business
Day, and the Company shall not specify a Redemption Date that falls on or after the 41st Scheduled Trading Day immediately
preceding the Maturity Date.
(b)
The Redemption Notice, if delivered in the manner herein provided, shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. In any case, failure to duly give such Redemption Notice or any defect in the Redemption Notice
to the Holder of any Note designated for Redemption as a whole or in part shall not affect the validity of the proceedings for the Redemption
of any other Note.
(c)
Each Redemption Notice shall specify:
(i)
the Redemption Date;
(ii)
the Redemption Price;
(iii)
that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest
thereon, if any, shall cease to accrue on and after the Redemption Date (except as provided in the parenthetical of the definition of
Redemption Price);
(iv)
the place or places where such Notes are to be surrendered for payment of the Redemption Price;
(v)
that Holders of Called Notes may surrender their Called Notes for conversion at any time prior to the close of business on the
second Scheduled Trading Day immediately preceding the Redemption Date;
(vi)
the procedures a converting Holder of Called Notes must follow to convert its Called Notes and the Settlement Method and Specified
Dollar Amount, if applicable;
(vii)
in the case of a Tax Redemption, that Holders have the right to elect not to have their Notes redeemed by delivering to the Trustee
written notice to that effect not later than the 15th calendar day prior to the related Redemption Date;
(viii)
in the case of a Tax Redemption, that Holders who wish to elect not to have their Notes redeemed must satisfy the requirements
set forth in this Indenture;
(ix)
in the case of a Tax Redemption, that, on and after the Redemption Date, Holders who elect not to have their Notes redeemed will
not receive any Additional Amounts with respect to any payment of principal of (including the Redemption Price and the Fundamental Change
Repurchase Price, if applicable), or any payment of interest on, such Notes, but only to the extent that such Additional Amounts would
otherwise have been payable solely as a result of the Change in Tax Law that relates to such Tax Redemption, and all subsequent payments
of principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), or payments of interest
on, the Notes will be subject to any tax required to be withheld or deducted under the laws of the Relevant Taxing Jurisdiction, provided
that a Holder that complies with the requirements for conversion described under Section 14.02 before the close of business
on the second Scheduled Trading Day immediately preceding the Redemption Date will be deemed to have validly delivered a notice of its
election not to have its Notes redeemed;
(x)
the Conversion Rate and, if applicable, the number of Additional Shares added to the Conversion Rate in accordance with Section
14.03;
(xi)
the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and
(xii)
in case any Physical Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and
after the Redemption Date, upon surrender of such Physical Note, a new Physical Note in principal amount equal to the unredeemed portion
thereof shall be issued.
Each Redemption Notice shall be irrevocable.
Simultaneously with providing any Redemption Notice, the Company shall issue a press release through such national newswire service as
the Company then uses containing the information set forth in such Redemption Notice.
Section 16.04. Payment
of Notes Called for Redemption. (a) If any Redemption Notice has been given in respect of the Notes in accordance with Section
16.03, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice and at the
applicable Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Redemption Notice, the Notes
shall be paid and redeemed by the Company at the applicable Redemption Price.
(b)
Prior to the open of business on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a
Subsidiary of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.05 an amount
of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price of all of the Notes
to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes to be redeemed shall be
made on the Redemption Date for such Notes. The Paying Agent shall, promptly after such payment and
upon written demand by the Company,
return to the Company any funds in excess of the Redemption Price.
Section 16.05. 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).
Section 16.06.
Sinking Fund. No sinking fund is provided for the Notes.
Article
17
Miscellaneous Provisions
Section 17.01.
Provisions Binding on Company’s or Guarantor’s Successors. All the covenants, stipulations, promises and agreements of
the Company and each Guarantor contained in this Indenture shall bind its successors and assigns whether so expressed or not.
Section 17.02.
Official Acts by Successor Company. Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like
board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.
Section 17.03.
Addresses for Notices, Etc. Any notice or demand that by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders on the Company or any Guarantor 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 or sent
via overnight courier addressed (until another address is filed by the Company with the Trustee) to Kosmos Energy Ltd., c/o Kosmos Energy,
LLC, 8176 Park Lane, Suite 500, Dallas, TX 75231, Attention: General Counsel. 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, upon receipt by the Trustee at the Corporate
Trust Office.
The Trustee, by
notice to the Company, may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
delivered or to be delivered to a Holder of Physical Notes shall be mailed to it by first class mail, postage prepaid, or sent via overnight
courier 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 (and if given in such manner,
will be deemed to have been given in writing).
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 and
each Guarantor 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. Each of the Guarantors hereby
irrevocably designates and appoints Kosmos Energy, LLC as its agent for service of process in any such action.
The Company and
each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Indenture
brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City,
New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 17.05.
Evidence of Compliance with Conditions Precedent; Certificates and Opinions of Counsel to Trustee. Upon any application or demand
by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee an Officer’s Certificate and Opinion of Counsel stating that all covenants and conditions precedent
relating to such action have been complied with and such action is permitted by the terms of this Indenture.
Each Officer’s
Certificate and Opinion of Counsel provided for, by or on behalf of the Company in this Indenture and delivered to the Trustee with respect
to compliance with this Indenture (other than the Officer’s Certificates provided for in Section 4.08) shall include (a)
a statement that the person signing such certificate is familiar with the requested action and this
Indenture; (b) a brief statement as
to the nature and scope of the examination or investigation upon which the statement contained in such certificate is based; (c) a statement
that, in the judgment of such person, he or she has made such examination or investigation as is necessary to enable him or her to express
an informed judgment as to whether or not such action is permitted by this Indenture and covenants and conditions precedent to such action
have been complied with; and (d) a statement as to whether or not, in the judgment of such person, such action is permitted by this Indenture
and covenants and conditions precedent relating to such action have been complied with.
Section 17.06.
Legal Holidays. In any case where any Interest Payment Date, any Redemption Date, any Fundamental Change Repurchase Date or the Maturity
Date is not a Business Day or is not a Valid Payment Date, 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 a Valid Payment Date 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.
Any corporation
or other entity into which any authenticating agent may be merged or converted or with which it may be consolidated, or any corporation
or other entity resulting from any merger, consolidation or conversion to which any authenticating agent shall be a party, or any corporation
or other entity succeeding to the corporate trust business of any authenticating agent, shall be the successor of the authenticating
agent hereunder, if such successor corporation or other entity is otherwise eligible under this Section 17.10, without the execution
or filing of any paper or any further act on the part of the parties hereto or the authenticating agent or such successor corporation
or other entity.
Any authenticating
agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate
the agency of any authenticating agent by giving written notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at any time any authenticating agent shall cease to be
eligible under this Section, the Trustee may appoint a successor authenticating agent (which may be the Trustee), shall give written
notice of such appointment to the Company and shall deliver notice of such appointment to all Holders.
The Company agrees
to pay to the authenticating agent from time to time reasonable compensation for its services although the Company may terminate the
authenticating agent, if it determines such agent’s fees to be unreasonable.
The provisions of
Section 7.02, Section 7.03, Section 7.04, Section 8.03 and this Section 17.10 shall be applicable
to any authenticating agent.
If an authenticating
agent is appointed pursuant to this Section 17.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:
__________________________,
as Authenticating Agent, certifies that this is one of the Notes described
in the within-named Indenture.
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 methods shall be deemed to be their original signatures for all purposes. Unless otherwise provided in this Indenture
or in any Note, the words “execute”, “execution”, “signed”, and “signature” and words
of similar import used in or related to any document to be signed in connection with this Indenture, any Note or any of the transactions
contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to
include electronic signatures and the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, and any other similar state laws based on the Uniform Electronic Transactions Act; provided that, notwithstanding anything
to the contrary set forth herein, the Trustee is under no obligation to agree to accept electronic signatures in any form or format unless
expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
Section 17.12.
Severability. In the event any provision of this Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the
extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 17.13.
Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS 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,
THE NOTE GUARANTEES 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, civil or military disturbances, nuclear or natural catastrophes or acts of God, epidemics,
pandemics, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility; it being understood that the Trustee
shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable
under the circumstances.
Section 17.15.
Calculations. Except as otherwise provided herein, the Company shall be responsible for making all calculations called for under
the Notes. These calculations include, but are not limited to, determinations of the Stock Price in connection with a Make-Whole Fundamental
Change or a Redemption Notice, the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily Conversion Values, the Daily
Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate 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 and the Conversion Agent, and each of the Trustee and Conversion
Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Company
shall provide the Company’s
calculations to any registered Holder
of Notes upon the request of that registered Holder at the sole cost and expense of the Company.
Section 17.16. USA
PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this
Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements
of the USA PATRIOT Act.
Section 17.17. Entire
Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the matters and transactions
contemplated by this Agreement and, except to the extent otherwise set forth in writing, superseded any prior agreement and understandings
with respect to those matters and transactions.
Section 17.18.
Withholding Taxes. If a beneficial owner of a Note is deemed to have received a distribution subject to U.S. federal income tax as
a result of an adjustment or the nonoccurrence of an adjustment to the Conversion Rate, the Company or the applicable Agent may withhold
any resulting applicable withholding taxes (including backup withholding) imposed in connection with a constructive distribution from
interest and payments upon conversion, 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 Notes, the Company or the applicable Agent may withhold those withholding taxes
from payments of cash or Common Stock, if any, payable on the Notes (or any payments on the Common Stock) or sales proceeds received
by or other funds or assets of the Holder or beneficial owner of the Note.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Indenture to be duly executed as of the date first written above.
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KOSMOS ENERGY LTD. |
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By: |
/s/
Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Senior Vice President and Chief Financial Officer |
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KOSMOS ENERGY OPERATING |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY INTERNATIONAL |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY DEVELOPMENT |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GHANA HC |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY EQUATORIAL GUINEA |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GHANA INVESTMENTS |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GHANA HOLDINGS LIMITED |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY FINANCE INTERNATIONAL |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GOM HOLDINGS, LLC |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GULF OF MEXICO, LLC |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GULF OF MEXICO MANAGEMENT, LLC |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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KOSMOS ENERGY GULF OF MEXICO OPERATIONS, LLC |
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By: KOSMOS ENERGY GULF OF MEXICO MANAGEMENT, LLC, its member |
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By: |
/s/ Neal D. Shah |
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Name: |
Neal D. Shah |
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Title: |
Director and Vice President |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee |
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By: |
/s/ Nedine P. Sutton |
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Name: |
Nedine P. Sutton |
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Title: |
Vice President |
EXHIBIT A
FORM OF NOTE
[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 KOSMOS ENERGY LTD. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[INCLUDE
FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS
SECURITY AND THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE
WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1)
REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2)
AGREES FOR THE BENEFIT OF KOSMOS ENERGY LTD. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS
SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF
OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A)
TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 OR APPLICABLE STATE SECURITIES LAW.]
Kosmos Energy Ltd.
3.125% Convertible Senior Note due 2030
| No. [_____] | [Initially]1
$[_________] |
CUSIP No. [_________]2
Kosmos Energy Ltd.,
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 $400,000,000 in aggregate
at any time, in accordance with the rules and procedures of the Depositary, on March 15, 2030, and interest thereon as set forth below.
This Note shall
bear interest at the rate of 3.125% per year from [_______], or from the most recent date to which interest had been paid or provided
for to, but excluding, the next scheduled Interest Payment Date until March 15, 2030. Interest is payable semi-annually in arrears on
each March 15 and September 15, commencing on September 15, 2024, to Holders of record at the close of business on the preceding March
1 and September 1 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth in Section
4.06(d), Section 4.06(e) and Section 6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect
of, any Note therein shall be deemed to include Additional Interest if, in such context, Additional Interest is, was or would be payable
pursuant to any of such Section 4.06(d), Section 4.06(e) or Section 6.03, and any express mention of the payment
of Additional Interest in any provision therein shall not be construed as excluding Additional Interest in those provisions thereof where
such express mention is not made.
Any Defaulted Amounts
shall accrue interest per annum at the rate borne by the Notes, 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.
The Company shall
pay or cause a Paying Agent to pay the principal of and interest 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 or cause a
1 Include if a global note.
2 Restricted CUSIP: 500688 AG1; Unrestricted
CUSIP: 500688 AH9
3 Include if a global note.
4 Include if a physical note.
5 Include if a global note.
6 Include if a physical note.
Paying Agent to pay the principal of
any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The Company has
initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its agency in the continental United
States, 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 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]
IN WITNESS WHEREOF,
the Company has caused this Note to be duly executed.
|
KOSMOS ENERGY LTD. |
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By: |
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Name: |
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Title: |
Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.
By:__________________________
Authorized Signatory
[FORM OF REVERSE
OF NOTE]
Kosmos Energy Ltd.
3.125% Convertible Senior Note due 2030
This Note is one
of a duly authorized issue of Notes of the Company, designated as its 3.125% Convertible Senior Notes due 2030 (the “Notes”),
limited to the aggregate principal amount of $400,000,000 all issued or to be issued under and pursuant to an Indenture dated as of March
8, 2024 (the “Indenture”), among the Company, the Guarantors named therein and Wilmington Trust, National Association
(the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company, the Guarantors 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.
The Notes shall
be guaranteed by the Guarantors pursuant to the terms and conditions set forth in the Indenture. The obligations of each Guarantor under
its Note Guarantee are subordinated in right of payment, to the extent and in the manner provided in the Indenture and the Security Documents.
The Company and each Guarantor agrees, and each Holder by accepting a Note agrees, to the subordination provisions contained in the Indenture
and the Security Documents and authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose.
In case certain
Events of Default shall have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the
Trustee or Holders of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due
and payable, in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.
Subject to the terms
and conditions of the Indenture, the Company will make all payments and deliveries in respect of the 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.
Subject to the terms
and conditions of the Indenture, Additional Amounts will be paid for withholdings or deductions imposed by a Relevant Taxing Jurisdiction
with respect to payments of principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable),
and payments of interest on, the Notes as set forth in the Indenture.
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 institute suit for the enforcement of its 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.
The Notes are issuable
in registered form without coupons in Authorized Denominations. 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.
Under certain circumstances
specified in the Indenture, the Notes will be subject to Redemption by the Company at the Redemption Price. No sinking fund is provided
for the Notes.
Upon the occurrence
of a 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 Scheduled Trading Day immediately preceding the Maturity Date,
to convert any Notes or portion thereof that is $1,000 or an integral multiple thereof, into cash or a combination of cash and shares
of Common Stock, as applicable, based on the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in
the Indenture.
ABBREVIATIONS
The following abbreviations,
when used in the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable
laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to
Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations
may also be used though not in the above list.
SCHEDULE A7
SCHEDULE OF EXCHANGES
OF NOTES
Kosmos Energy Ltd.
3.125% Convertible Senior Notes due 2030
The initial principal
amount of this Global Note is _______ DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:
Date
of exchange
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Amount
of decrease in principal amount of this Global Note
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Amount
of increase in principal amount of this Global Note
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Principal
amount of this Global Note following such decrease or increase
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Signature
of authorized signatory of Trustee or Custodian
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7 Include if a global note.
ATTACHMENT 1
[FORM OF NOTICE
OF CONVERSION]
| To: | Kosmos Energy Ltd.
c/o Kosmos Energy, LLC |
8176 Park Lane,
Suite 500
Dallas, TX 75231
Attention: General
Counsel
Wilmington Trust,
National Association, as Conversion Agent
1310 Silas Deane
Highway
Wethersfield, Connecticut
06109
Attention: Kosmos
Energy Ltd. Administrator
| Re: | Kosmos Energy Ltd. 3.125% Convertible
Senior Notes due 2030 |
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 or a combination of cash and shares of Common Stock, as applicable, in accordance
with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and
deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted principal
amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been indicated below. If any shares
of Common Stock or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned
will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section
14.02(e) of the Indenture. Any amount required to be paid to the undersigned on account of interest accompanies this Note. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
Dated: _____________________ |
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Signature(s) |
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___________________________
Signature Guarantee
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.
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
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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 whatever.
_________________________
Social Security or Other Taxpayer
Identification Number
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ATTACHMENT 2
[FORM OF FUNDAMENTAL
CHANGE REPURCHASE NOTICE]
c/o Kosmos Energy,
LLC
8176 Park Lane,
Suite 500
Dallas, TX 75231
Attention: General
Counsel
Paying Agent
| Re: | Kosmos Energy Ltd. 3.125% Convertible
Senior Notes due 2030 |
The undersigned
registered owner of this Note hereby acknowledges receipt of a notice from Kosmos Energy Ltd. (the “Company”) as to
the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and requests
and instructs the Company to pay to the registered holder hereof in accordance with Section 15.02 of the Indenture referred to
in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal amount or an integral multiple
thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during the period after a Regular Record
Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest, if any, thereon to, but excluding, such
Fundamental Change Repurchase Date. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the
Indenture.
In the case of Physical
Notes, the certificate numbers of the Notes to be repurchased are as set forth below:
Dated: _____________________
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________________________________
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 whatever.
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ATTACHMENT 3
[FORM OF ASSIGNMENT
AND TRANSFER]
Re: Kosmos Energy Ltd. 3.125% Convertible
Senior Notes due 2030
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 Kosmos Energy Ltd. or
a subsidiary thereof; or
□ Pursuant to a registration
statement that has become or been declared effective under the Securities Act of 1933, as amended; or
□ Pursuant to and in compliance
with Rule 144A under the Securities Act of 1933, as amended; or
□ Pursuant to and in compliance
with Rule 144 under the Securities Act of 1933, as amended, or any other available exemption from the registration requirements of the
Securities Act of 1933, as amended.
Dated: ________________________
_____________________________________
_____________________________________
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
whatever.
EXHIBIT B
FORM
OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture
(this “Supplemental Indenture”), dated as of [__________] [__], 20[__], among __________________ (the “Guaranteeing
Subsidiary”), a subsidiary of Kosmos Energy Ltd., a Delaware corporation (the “Company”), the Company and
Wilmington Trust, National Association, as trustee (the “Trustee”).
W
I T N E S S E T H
WHEREAS, each of the
Company and the Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”), dated as of March 8, 2024, providing for the issuance of an unlimited aggregate principal amount
of 3.125% Convertible Senior Notes due 2030 (the “Notes”);
WHEREAS, the Indenture
provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes
and the Indenture on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant
to Section 10.01 of the Indenture, the Trustee, the Company and the Guaranteeing Subsidiary are authorized to execute and deliver this
Supplemental Indenture without the consent of the Holders of any of the Notes.
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties
mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Guarantor.
The Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable
to Guarantors, including Article 13 thereof.
3. The
Trustee. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee, whether or not elsewhere herein so provided.
The Trustee makes no representations as to the validity, execution or sufficiency of this Supplemental Indenture other than as to the
validity of its execution and delivery by the Trustee. The Trustee assumes no responsibility for the correctness of the recitals contained
herein, which shall be taken as a statement of the Company.
4. Miscellaneous.
The provisions of Sections 17.04, 17.09, 17.11, 17.12 and 17.13 of the Indenture are incorporated by reference herein as if fully set
forth herein, mutatis mutandis.
IN WITNESS WHEREOF,
the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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[NAME OF GUARANTEEING
SUBSIDIARY] |
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Title: |
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KOSMOS ENERGY LTD. |
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Wilmington Trust, National Association,
as Trustee |
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Exhibit 4.2
FORM OF NOTE
[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 KOSMOS ENERGY
LTD. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE FOLLOWING LEGEND IF A RESTRICTED SECURITY]
[THIS SECURITY AND THE COMMON
STOCK, IF ANY, ISSUABLE UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT
IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE
BENEFIT OF KOSMOS ENERGY LTD. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR
ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:
(A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, 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 OR APPLICABLE STATE SECURITIES LAW.]
Kosmos Energy Ltd.
3.125% Convertible Senior Note due 2030
No. [_____] |
[Initially]1
$[_________] |
CUSIP No. [_________]2
Kosmos Energy Ltd., 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 $[400,000,000][350,000,000 (as increased by an amount equal to the aggregate
principal amount of any additional Notes purchased by the Initial Purchasers pursuant to the exercise of their option to purchase additional
Notes as set forth in the Purchase Agreement)]7 in aggregate at any time, in accordance with the rules and procedures of the
Depositary, on March 15, 2030, and interest thereon as set forth below.
This Note shall bear interest at the rate of 3.125%
per year from [_______], or from the most recent date to which interest had been paid or provided for to, but excluding, the next scheduled
Interest Payment Date until March 15, 2030. Interest is payable semi-annually in arrears on each March 15 and September 15, commencing
on September 15, 2024, to Holders of record at the close of business on the preceding March 1 and September 1 (whether or not such day
is a Business Day), respectively. Additional Interest will be payable as set forth in Section 4.06(d), Section 4.06(e) and Section
6.03 of the within-mentioned Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include
Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to any of such Section 4.06(d),
Section 4.06(e) or Section 6.03, and any express mention of the payment of Additional Interest in any provision therein shall
not be construed as excluding Additional Interest in those provisions thereof where such express mention is not made.
Any Defaulted Amounts shall accrue interest per
annum at the rate borne by the Notes, 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. The Company shall pay or cause a Paying Agent to pay the principal of and interest on this Note,
if and so long as such Note is a Global Note, in immediately available funds to the Depositary or
1 Include if a global note.
2 Restricted CUSIP: 500688 AG1; Unrestricted
CUSIP: 500688 AH9
3 Include if a global note.
4 Include if a physical note.
5 Include if a global note.
6 Include if a physical note.
7 Delete if greenshoe is exercised
in full before initial closing and will be settled on closing date for initial issuance.
its nominee, as the case may be, as the registered Holder of such Note.
As provided in and subject to the provisions of the Indenture, the Company shall pay or cause a Paying Agent to pay the principal of any
Notes (other than Notes that are Global Notes) at the office or agency designated by the Company for that purpose. The Company has initially
designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes and its agency in the continental United States,
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 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]
IN WITNESS WHEREOF, the Company has caused this
Note to be duly executed.
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KOSMOS ENERGY LTD. |
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Dated:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee, certifies that this is one of the Notes described
in the within-named Indenture.
By:_____________________________
Authorized Signatory
[FORM OF REVERSE OF NOTE]
Kosmos Energy Ltd.
3.125% Convertible Senior Note due 2030
This Note is one of a duly authorized issue of
Notes of the Company, designated as its 3.125% Convertible Senior Notes due 2030 (the “Notes”), limited to the aggregate
principal amount of $400,000,000 all issued or to be issued under and pursuant to an Indenture dated as of March 8, 2024 (the “Indenture”),
among the Company, the Guarantors named therein and Wilmington Trust, National Association (the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company, the Guarantors 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.
The Notes shall be guaranteed by the Guarantors
pursuant to the terms and conditions set forth in the Indenture. The obligations of each Guarantor under its Note Guarantee are subordinated
in right of payment, to the extent and in the manner provided in the Indenture and the Security Documents. The Company and each Guarantor
agrees, and each Holder by accepting a Note agrees, to the subordination provisions contained in the Indenture and the Security Documents
and authorizes the Trustee to give it effect and appoints the Trustee as attorney-in-fact for such purpose.
In case certain Events of Default shall have occurred
and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders of at least 25% in aggregate
principal amount of Notes then outstanding, and upon said declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions and certain exceptions set forth in the Indenture.
Subject to the terms and conditions of the Indenture,
the Company will make all payments and deliveries in respect of the 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.
Subject to the terms and conditions of the Indenture,
Additional Amounts will be paid for withholdings or deductions imposed by a Relevant Taxing Jurisdiction with respect to payments of principal
of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), and payments of interest on, the Notes
as set forth in the Indenture.
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 institute suit
for the enforcement of its 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.
The Notes are issuable in registered form without
coupons in Authorized Denominations. 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.
Under certain circumstances specified in the Indenture,
the Notes will be subject to Redemption by the Company at the Redemption Price. No sinking fund is provided for the Notes.
Upon the occurrence of a 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 Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or portion
thereof that is $1,000 or an integral multiple thereof, into cash or a combination of cash and shares of Common Stock, as applicable,
based on the Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription
of the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST = Custodian
TEN ENT = as tenants by the entireties
JT TEN = joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though
not in the above list.
SCHEDULE A8
SCHEDULE OF EXCHANGES OF NOTES
Kosmos Energy Ltd.
3.125% Convertible Senior Notes due 2030
The initial principal amount of this Global Note
is _______ DOLLARS ($[_________]). 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 |
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8 Include if a global note.
ATTACHMENT 1
[FORM OF NOTICE OF CONVERSION]
To: |
Kosmos Energy Ltd. |
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c/o Kosmos Energy, LLC |
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8176 Park Lane, Suite 500 |
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Dallas, TX 75231 |
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Attention: General Counsel |
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Wilmington Trust, National Association, as Conversion Agent |
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1310 Silas Deane Highway |
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Wethersfield, Connecticut 06109 |
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Attention: Kosmos Energy Ltd. Administrator |
Re: Kosmos Energy Ltd. 3.125% Convertible Senior Notes due 2030
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 or a combination of cash and shares of Common Stock, as applicable, in accordance with the terms of the Indenture
referred to in this Note, and directs that any cash payable and any shares of Common Stock issuable and deliverable upon such conversion,
together with any cash for any fractional share, and any Notes representing any unconverted principal amount hereof, be issued and delivered
to the registered Holder hereof unless a different name has been indicated below. If any shares of Common Stock or any portion of this
Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp
or similar issue or transfer taxes, if any in accordance with Section 14.02(d) and Section 14.02(e) of the Indenture. Any amount
required to be paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture.
___________________________
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.
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 whatever.
_________________________
Social Security or Other Taxpayer
Identification Number
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
To: |
Kosmos Energy Ltd. |
|
c/o Kosmos Energy, LLC |
|
8176 Park Lane, Suite 500 |
|
Dallas, TX 75231 |
|
Attention: General Counsel |
|
|
|
Paying Agent |
Re: Kosmos Energy Ltd. 3.125% Convertible Senior Notes due 2030
The undersigned registered owner of this Note hereby
acknowledges receipt of a notice from Kosmos Energy Ltd. (the “Company”) as to the occurrence of a Fundamental Change with
respect to the Company and specifying the Fundamental Change Repurchase Date and requests and instructs the Company to pay to the registered
holder hereof in accordance with Section 15.02 of the Indenture referred to in this Note (1) the entire principal amount of this
Note, or the portion thereof (that is $1,000 principal amount or an integral multiple thereof) below designated, and (2) if such Fundamental
Change Repurchase Date does not fall during the period after a Regular Record Date and on or prior to the corresponding Interest Payment
Date, accrued and unpaid interest, if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the Indenture.
In the case of Physical Notes, the certificate
numbers of the Notes to be repurchased are as set forth below:
Dated: _____________________
________________________________
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 whatever.
ATTACHMENT 3
[FORM OF ASSIGNMENT AND TRANSFER]
Re: Kosmos Energy Ltd. 3.125% Convertible Senior Notes due 2030
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 Kosmos Energy Ltd. or a subsidiary thereof; or |
| □ | Pursuant to a registration statement that has become or been
declared effective under the Securities Act of 1933, as amended; or |
| □ | Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or |
| □ | Pursuant to and in compliance with Rule 144 under the Securities
Act of 1933, as amended, or any other available exemption from the registration requirements of the Securities Act of 1933, as amended. |
Dated: ________________________
_____________________________________
_____________________________________
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 whatever.
Exhibit 10.1
[Dealer Name and Address]
March 5, 2024
To: Kosmos Energy Ltd.
8176 Park Lane, Suite 500
Dallas, Texas 75231
Attention: General Counsel
Re: Base Call Option Transaction
The purpose of this letter
agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction entered into
between [Dealer Name] (“Dealer”) and Kosmos Energy Ltd. (“Counterparty”) as of the Trade
Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred
to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together with the Agreement evidence
a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction to which this Confirmation
relates, and shall supersede all prior or contemporaneous written or oral communications with respect thereto.
The definitions and provisions
contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International
Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency
between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms
that are defined in the Preliminary Offering Memorandum dated March 4, 2024 (the “Offering Memorandum”) relating to
the 3.125% Convertible Senior Notes due 2030 (as originally issued by Counterparty, the “Convertible Notes” and each
USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty in an aggregate initial
principal amount of USD 350,000,000 (as increased by up to an aggregate principal amount of USD 50,000,000 if and to the extent that
the Initial Purchasers (as defined herein) exercise their option to purchase additional Convertible Notes pursuant to the Purchase Agreement
(as defined herein)) pursuant to an Indenture to be dated March 8, 2024 among Counterparty, the guarantors named therein and Wilmington
Trust, National Association, as trustee (the “Indenture”). In the event of any inconsistency between the terms defined
in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation
is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein
by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof
in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions
thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation.
The parties further acknowledge that the Indenture section numbers used herein are based on the draft of the Indenture last reviewed by
Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will
amend this Confirmation in good faith to preserve the intent of the parties. Subject to the foregoing, references to the Indenture herein
are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such
date (other than any amendment or supplement (x) pursuant to Section 10.01(i) of the Indenture that, as determined by the Calculation
Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the
Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3),
any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.
Each party is hereby advised,
and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates
on the terms and conditions set forth below.
1.
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 supplement, form a part of, and be subject to an agreement in the form of
the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form
(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) in respect of Section 5(a)(vi) of the Agreement, (a) the “Cross Default” provisions shall apply
to Dealer with a “Threshold Amount” of
three percent of the shareholders’
equity of [Dealer][Dealer’s ultimate parent] as of the Trade Date, (b) the phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) and (c) the following language shall be added to the end thereof: “Notwithstanding
the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by
error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due;
and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”,
(iii) the term “Specified Indebtedness” shall have the meaning specified in Section 14 of the Agreement, except that such
term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business and (iv)
the “Default Under Specified Transaction” provision of Section 5(a)(v) of the Agreement shall not apply to Counterparty) on
the Trade Date. In the event of any inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will prevail
for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction
to which this Confirmation relates shall be governed by the Agreement.
2.
The terms of the particular Transaction to which this Confirmation relates are as follows:
General Terms.
|
Trade Date: |
|
March 5, 2024 |
|
Effective Date: |
|
The second Exchange Business Day immediately prior to the Premium Payment Date, subject to Section 9(u). |
|
Option Style: |
|
“Modified American”, as described under “Procedures for Exercise” below |
|
Option Type: |
|
Call |
|
Buyer: |
|
Counterparty |
|
Seller: |
|
Dealer |
|
Shares: |
|
The common stock of Counterparty, par value USD 0.01 per share (Exchange symbol “KOS”). |
|
Number of Options: |
|
350,000. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero. |
|
Applicable Percentage: |
|
20% |
|
Option Entitlement: |
|
A number equal to the product of the Applicable Percentage and 142.4501. |
|
Strike Price: |
|
USD 7.0200 |
|
Cap Price: |
|
USD 10.8000 |
|
Premium: |
|
USD 8,715,000 |
|
Premium Payment Date: |
|
March 8, 2024 |
|
Exchange: |
|
The New York Stock Exchange |
|
Related Exchange(s): |
|
All Exchanges |
|
Excluded Provisions: |
|
Section 14.04(h) and Section 14.03 of the Indenture. |
Procedures for Exercise.
|
Conversion Date: |
|
With respect to any conversion of a Convertible Note (other than any conversion of Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date (any such conversion, an “Early Conversion”), to which the provisions of Section 9(h)(i) of this Confirmation shall apply), the date on which the “Holder” (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture; provided that if Counterparty has not delivered to Dealer a related Notice of Exercise, then in no event shall a Conversion Date be deemed to occur hereunder (and no Option shall be exercised or deemed to be exercised hereunder) with respect to any surrender of a Convertible Note for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion of such Convertible Note pursuant to Section 14.12 of the Indenture. |
|
Free Convertibility Date: |
|
December 15, 2029 |
|
Expiration Time: |
|
The Valuation Time |
|
Expiration Date: |
|
March 15, 2030, subject to earlier exercise. |
|
Multiple Exercise: |
|
Applicable, as described under “Automatic Exercise” and “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below. |
|
Automatic Exercise: |
|
Notwithstanding Section 3.4 of the Equity Definitions, on each Conversion Date occurring on or after the Free Convertibility Date, in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder, a number of Options equal to the number of Convertible Notes in denominations of USD 1,000 as to which such Conversion Date has occurred shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below. |
|
|
|
Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options. |
|
Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date: |
|
Notwithstanding Section 3.4 of the Equity Definitions or “Automatic Exercise” above, unless Counterparty notifies Dealer in writing prior to 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date that it does not wish automatic exercise to occur with respect to any Remaining Repurchase Options (as defined below), a number of Options equal to the lesser of (a) the Number of Options (after giving effect to the |
|
|
|
provisions opposite the caption “Automatic Exercise” above) as of 9:00 a.m. (New York City time) on the Expiration Date and (b) the Remaining Repurchase Options (such lesser number, the “Remaining Options”) will be deemed to be automatically exercised as if (i) a number of Convertible Notes (in denominations of USD 1,000 principal amount) equal to such number of Remaining Options were outstanding under the Indenture and were converted with a “Conversion Date” (as defined in the Indenture) occurring on or after the Free Convertibility Date and (ii) the Notice of Final Settlement Method, if any, applied to such Convertible Notes; provided that no such automatic exercise pursuant to this paragraph will occur if the Relevant Price for each Valid Day during the Settlement Averaging Period is less than or equal to the Strike Price. “Remaining Repurchase Options” shall mean the excess of (I) the aggregate number of Convertible Notes (in denominations of USD 1,000 principal amount) that were subject to Repayment Events (as defined below) (other than Repayment Events pursuant to the terms of the Indenture) described in clause (y) of Section 9(h)(iii) (“Repurchase Events”) during the term of the Transaction over (II) the aggregate number of Repayment Options (as defined below) that were terminated hereunder relating to Repurchase Events during the term of the Transaction. Counterparty shall notify Dealer in writing of the number of Remaining Repurchase Options before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date. |
|
Notice of Exercise: |
|
Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” above, in order to exercise any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (and the related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Date in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (including, but not limited to, losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the unwinding of any hedge |
|
|
|
position), solely resulting from Dealer not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in this proviso can never be less than zero and can never require any payment by Counterparty); provided further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the Relevant Settlement Method is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount” which, for the avoidance of doubt, must be at least USD 1,000) and if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement Method is Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes where the corresponding Relevant Settlement Method is not Net Share Settlement. |
|
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 good faith and in its commercially reasonable discretion. |
|
Market Disruption Event: |
|
Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following: |
|
|
|
“‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares 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 Shares or in any options contracts or futures contracts relating to the Shares.” |
Settlement Terms.
|
Settlement Method: |
|
For any Option, Net Share Settlement; provided that if the Relevant Settlement Method as set forth below for such Option is not Net Share Settlement, then the Settlement |
|
|
|
Method for such Option shall be such Relevant Settlement Method, but only if Counterparty (or any agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing) shall have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement Method for such Option. If any such agent on behalf of Counterparty provides any such notice, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty. |
|
Relevant Settlement Method: |
|
In respect of any Option: |
|
|
|
(i) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(B) of the Indenture with a Specified Cash Amount equal to USD 1,000, then the Relevant Settlement Method for such Option shall be Net Share Settlement; |
|
|
|
(ii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(B) of the Indenture with a Specified Cash Amount greater than USD 1,000, then the Relevant Settlement Method for such Option shall be Combination Settlement; and |
|
|
|
(iii) if Counterparty has elected to settle its conversion obligations in respect of the related Convertible Note entirely in cash pursuant to Section 14.02(a)(iv)(A) of the Indenture, then the Relevant Settlement Method for such Option shall be Cash Settlement. |
|
Net Share Settlement: |
|
If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit for such Option divided by the Applicable Limit Price on the Settlement Date for such Option. |
|
|
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. |
|
Combination Settlement: |
|
If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such Option: |
| (i) | cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid Day
during the Settlement Averaging Period for such Option, of (A) an amount (the “Daily Combination Settlement Cash Amount”)
equal to the lesser of (1) the product of (x) the Applicable Percentage and (y) the Specified Cash Amount minus USD 1,000 and (2)
the Daily Option Value for such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided
that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash
Amount for such Valid Day shall be deemed to be zero; and |
| (ii) | Shares (the “Combination Settlement Share Amount”) equal to the sum, for each Valid
Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily Combination
Settlement Share Amount”) equal to (A) (1) the Daily Option Value for such Valid Day minus the Daily Combination
Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number
of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or
a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero; |
|
|
|
provided that in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit for such Option. |
|
|
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. |
|
Cash Settlement: |
|
If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Cash Settlement Amount for any Option exceed the Applicable Limit for such Option. |
|
Daily Option Value: |
|
For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap |
|
|
|
Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero. |
|
Applicable Limit: |
|
For any Option, an amount of cash equal to the Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the “Holder” (as such term is defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000. |
|
Applicable Limit Price: |
|
On any day, the opening price as displayed under the heading “Op” on Bloomberg page KOS <equity> (or any successor thereto). |
|
Valid Day: |
|
A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other United States national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day. |
|
Scheduled Valid Day: |
|
A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day. |
|
Business Day: |
|
Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York or commercial banks in New York are authorized or required by law or executive order to close or be closed. |
|
Relevant Price: |
|
On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page KOS <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange 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 good faith and in a commercially reasonable manner using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours. |
|
Settlement Averaging Period: |
|
For any Option and regardless of the Settlement Method applicable to such Option, the 40 consecutive Valid Days commencing on, and including, the 41st Scheduled Valid Day immediately prior to the Expiration Date. |
|
Settlement Date: |
|
For any Option, the second Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option. |
|
Settlement Currency: |
|
USD |
|
Other Applicable Provisions: |
|
The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option. |
|
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 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”)). |
3.
Additional Terms applicable to the Transaction.
Adjustments applicable to the Transaction:
|
Potential Adjustment Events: |
|
Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture). |
|
Method of Adjustment: |
|
Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent, acting in good faith and commercially reasonably, taking into account the relevant provisions of the Indenture, shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction. |
|
|
|
Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below: |
| (i) | if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves
an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture,
Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment
or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent
will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable
relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner, taking into account the relevant
provisions of the Indenture; |
| (ii) | in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section
14.04(b) of the Indenture or Section 14.04(c) of the Indenture where, in either case, the period for determining “Y” (as such
term is used in Section 14.04(b) of the Indenture) or “SP0” (as such term is used in Section 14.04(c) of the Indenture),
as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to such Potential Adjustment
Event, then the Calculation Agent shall have the right to adjust, in good faith and in a commercially reasonable manner, any variable
relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the commercially reasonable costs (including,
but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its commercially reasonable
hedging activities as a result of such event or condition not having been publicly announced prior to the beginning of such period; and |
| (iii) | if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such
Potential Adjustment Event is subsequently |
amended, modified,
cancelled or abandoned, (b) the “Conversion Rate” (as defined in the Indenture) is otherwise not adjusted at the time
or in the manner contemplated by the relevant Dilution Adjustment Provision based on such declaration or (c) the “Conversion
Rate” (as defined in the Indenture) is adjusted as a result of such Potential Adjustment Event and subsequently re-adjusted (each
of clauses (a), (b) and (c), a “Potential Adjustment Event Change”) then, in each case, the Calculation Agent shall
have the right to adjust, in good faith and in a commercially reasonable manner, any variable relevant to the exercise, settlement or
payment for the Transaction as appropriate to reflect the commercially reasonable costs (including, but not limited to, hedging mismatches
and market losses) and commercially reasonable expenses incurred by Dealer in connection with its commercially reasonable hedging activities
as a result of such Potential Adjustment Event Change.
|
Dilution Adjustment Provisions: |
|
Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture. |
Extraordinary Events applicable to
the Transaction:
|
Merger Events: |
|
Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Share Exchange Event” in Section 14.07(a) of the Indenture. |
|
Tender Offers: |
|
Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture. |
|
Consequences of Merger Events/ Tender Offers: |
|
Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to any Excluded Provision; provided further that if (x) with respect to any Merger Event or any Tender Offer, (i) (A) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is either (1) neither a corporation nor an entity that is treated as a corporation for U.S. federal |
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|
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income tax purposes or (2) not organized under the laws of the United States, any State thereof or the District of Columbia or (B) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be either a corporation or an entity that is treated as a corporation for U.S. federal income tax purposes or will not be organized under the laws of the United States, any State thereof or the District of Columbia and (ii) Dealer determines in a commercially reasonable manner at any time following the occurrence of such Merger Event or Tender Offer that (A) such Merger Event or Tender Offer has had or will have an adverse effect on Dealer under the Transaction or (B) Dealer will incur or has incurred an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary or appropriate to hedge the economic risk of entering into and performing its obligations with respect to the Transaction in a commercially reasonable manner or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) or (y) a Prohibited Foreign Transaction occurs, then, in the case of either clause (x) or clause (y), Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s commercially reasonable election; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. |
|
Prohibited Foreign Transaction: |
|
A Merger Event pursuant to which Counterparty following consummation thereof is organized and existing under the laws of a jurisdiction other than the United States, any State thereof, the District of Columbia, Bermuda, the Cayman Islands or the United Kingdom. |
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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”, (y) the phrase “exercise, settlement, payment or any other terms of the Transaction (including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, and (z) for the avoidance of doubt, the Calculation Agent shall determine whether the relevant Announcement Event has had an economic effect on the Transaction (and, if so, shall, acting in good faith and in a commercially reasonable manner, adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an |
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Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. |
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Announcement Event: |
|
(i) The public announcement by Issuer, any subsidiary of Issuer, any affiliate of Issuer, any agent of Issuer, any Valid Third Party Entity or any affiliate of a Valid Third Party Entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate 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 50% of the market capitalization of Issuer as of the date of such announcement (a “Transformative Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or a Transformative Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or a Transformative Transaction or (iii) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, 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), as determined by the Calculation Agent in a commercially reasonable manner. 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,” (A) “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) and (B) “Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions (as amended by Section 9(i)(ii) below). |
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Valid Third Party Entity: |
|
In respect of any transaction, any third party that has a bona fide intent to enter into or consummate such transaction, as determined by the Calculation Agent (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares). |
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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 Exchange is located in the United States and 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 of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. |
Additional Disruption
Events:
|
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) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (iii) 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, effectiveness or promulgation of new regulations authorized or mandated by existing statute)”. 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, and any such determination of a Change in Law shall be consistently applied by the Determining Party across transactions similar to the Transaction and for counterparties similar to Counterparty. |
|
Failure to Deliver: |
|
Applicable |
|
Hedging Disruption: |
|
Applicable; provided that: |
| (i) | Section 12.9(a)(v) of the Equity Definitions is hereby amended by inserting the following two phrases
at the end of such Section: |
“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. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available
on commercially reasonable pricing terms.”; and
| (ii) | 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, if a portion of the Transaction is affected by such Hedging Disruption (as commercially reasonably determined by
the Hedging Party), such portion of the Transaction affected by such Hedging Disruption”.
|
|
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Notwithstanding anything to the contrary herein or in the Equity Definitions, in no event will a Hedging Disruption occur solely due to the deterioration of the creditworthiness of the Hedging Party relative to other comparable financial institutions. |
|
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 (which determination shall be consistently applied by the Determining Party across transactions similar to the Transaction and for counterparties similar to Counterparty). |
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Hedging Party: |
|
For all applicable Additional Disruption Events, Dealer. Following any determination by the Hedging Party hereunder, upon a request by Counterparty, the Hedging Party shall promptly provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request 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 (including any assumptions used in making such determination), it being understood that the Hedging Party shall not be obligated to disclose any proprietary models used by it for such determination or any information that may be proprietary or confidential or subject to an obligation not to disclose such information. All calculations, adjustments and determinations by Dealer acting in its capacity as the Hedging Party shall be made in good faith and in a commercially reasonable manner and assuming that Dealer maintains a commercially reasonable hedge position. |
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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 the Determining Party were the Calculation Agent. Following any determination or calculation by the Determining Party hereunder, upon a request by Counterparty, the Determining Party shall promptly provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request 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 the Determining Party shall not be obligated to disclose any proprietary models used by it for such determination or |
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calculation or any information that may be proprietary or confidential or subject to an obligation not to disclose such information. All calculations, adjustments and determinations by Dealer acting in its capacity as the Determining Party shall be made in good faith and in a commercially reasonable manner and assuming that Dealer maintains a commercially reasonable hedge position. |
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Non-Reliance: |
|
Applicable |
|
Agreements and Acknowledgments |
|
|
|
Regarding Hedging Activities: |
|
Applicable |
|
Additional Acknowledgments: |
|
Applicable |
|
Hedging Adjustments: |
|
For the avoidance of doubt, whenever the Determining Party or Calculation Agent is called upon or permitted to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of an event (other than, for the avoidance of doubt, any adjustment that is required to be made by reference to the Indenture), the Determining Party or Calculation Agent, as the case may be, shall make such adjustment by reference to the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable hedge position. |
4. | Calculation Agent. |
| Dealer, whose judgments, determinations
and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence
and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer
is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to
be made by the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation
Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter
corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early
Termination Date with respect to such Event of Default, as the Calculation Agent. Following any determination, adjustment or calculation
by the Calculation Agent hereunder, upon a request by Counterparty, the Calculation Agent shall promptly provide to Counterparty by e-mail
to the e-mail address provided by Counterparty in such request 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, adjustment or calculation (including any assumptions
used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose
any proprietary models used by it for such determination or calculation or any information that may be proprietary or |
confidential or subject
to an obligation not to disclose such information.
5.
Account Details.
(a) |
Account for payments to Counterparty: |
|
Bank: |
Bank of America N.A. |
|
ABA#: |
026009593 |
|
SWIFT: |
BOFAUS3N |
|
Account Name: |
Kosmos Energy Limited |
|
Account Number: |
4427921933 |
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
| (b) | Account for payments to Dealer: |
[_____]
Account for delivery of Shares from Dealer:
[_____]
6.
Offices.
| (a) | The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party. |
| (b) | The Office of Dealer for the Transaction is: [_____] |
7.
Notices.
| (a) | Address for notices or communications to Counterparty: |
Kosmos Energy Ltd.
8176 Park Lane, Suite 500
Dallas, Texas 75231
Attention: General Counsel
| (b) | Address for notices or communications to Dealer: |
[______]
8.
Representations and Warranties of Counterparty.
Counterparty hereby represents and warrants
to Dealer on the date hereof and on and as of the Premium Payment Date that:
| (a) | Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations
in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on
Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its
valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity) and except that |
rights to indemnification
and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.
| (b) | Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations
of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents)
of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority
or agency, or any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December
31, 2023, as updated by any subsequent filings, to which Counterparty or any of its subsidiaries is a party or by which Counterparty or
any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result
in the creation of any lien under, any such agreement or instrument. |
| (c) | No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any
court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have
been obtained or made and such as may be required under the Securities Act or state securities laws. |
| (d) | Counterparty is not and, after consummation of 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. |
| (e) | Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18)
of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the
Commodity Exchange Act). |
| (f) | Counterparty is not, on the date hereof, in possession of any material non-public information with respect
to Counterparty or the Shares. |
| (g) | To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s)
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. |
| (h) | 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; (C)
has consulted with its own legal, regulatory, tax, business, investments, financial and accounting advisors with respect to the Transaction
to the extent that it has deemed necessary; and (D) has total assets of at least USD 50 million. |
| (i) | The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income
Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law. |
| (j) | 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”)). |
| (k) | Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a
capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security
Act (the “CARES Act”), the Counterparty would be required to agree to certain time-bound restrictions on its ability
to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is
defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to
certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan
guarantees or |
direct loans (as that
term is defined in the CARES Act) under programs or facilities established by the Board of Governors of the Federal Reserve System or
the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may be required to agree to similar
restrictions under programs or facilities established in the future (collectively, “Governmental Financial Assistance”).
Accordingly, Counterparty represents and warrants that it has not applied for, and has no present intention to apply for, Governmental
Financial Assistance under any governmental program or facility that (a) is established under applicable law (whether in existence as
of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act or the Federal Reserve Act,
as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement of a governmental
authority with jurisdiction for such program or facility), as a condition of such Governmental Financial Assistance, that the Counterparty
agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will not repurchase, any
equity security of Counterparty or that it has not, as of the date specified in such condition, made a capital distribution or will not
make a capital distribution.
9.
Other Provisions.
| (a) | Opinions. Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Premium
Payment Date, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation; provided that any such opinion
of counsel may contain customary exceptions and qualifications. Delivery of such opinion to Dealer shall be a condition precedent for
the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. |
| (b) | Repurchase Notices. Counterparty shall, on or prior to the date one Scheduled Trading Day
immediately following any date on which Counterparty has effected any repurchase of Shares, promptly give Dealer a written notice of such
repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares as determined
on such day is (i) less than 390.7 million (in the case of the first such notice) or (ii) thereafter more than 57.2 million less
than the number of Shares included in the immediately preceding Repurchase Notice; provided that, with respect to any repurchase
of Shares pursuant to a plan under Rule 10b5-1 under the Exchange Act, Counterparty may elect to satisfy such requirement by promptly
giving Dealer written notice of the entry into such plan, the maximum number of Shares that may be repurchased thereunder and the approximate
dates or periods during which such repurchases may occur (with such maximum deemed repurchased on the date of such notice for purposes
of this Section 9(b)). Counterparty agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers,
directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and
against any and all losses (including losses relating to Dealer’s 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, judgments, liabilities and
reasonable expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to,
in each case, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner specified
in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or
other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending
any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with a Repurchase
Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related
to such proceeding. Counterparty shall not be liable for any settlement of any proceeding contemplated by this paragraph that is effected
without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to
indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not,
without the prior written consent of the Indemnified |
Person, effect any settlement
of any pending or threatened proceeding contemplated by this paragraph that is in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory
to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities. The remedies provided for in this paragraph (b) are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in
this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction.
| (c) | Regulation M. Counterparty is not on the Trade Date engaged in a distribution, as such term
is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities
of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation
M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution. |
| (d) | No Manipulation. Counterparty is not entering into the Transaction to create actual or apparent
trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate
the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act. |
| (e) | Transfer or Assignment. |
| (i) | Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect
to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that
such transfer or assignment shall be subject to 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 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation; |
| (B) | Any Transfer Options shall only be transferred or assigned to a third party that is a United States person
(as defined in the Internal Revenue Code of 1986, as amended (the “Code”)); |
| (C) | Such transfer or assignment shall be effected
on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking 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 legal opinions with respect to securities laws and other matters by such third party
and Counterparty, as are requested and reasonably satisfactory to Dealer; |
| (D) | Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will
not, as a result of such transfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the
transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment
date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount that Dealer would
have been required to pay to Counterparty in the absence of such transfer and assignment, except to the extent that the greater amount
is due to a Change in |
Tax Law after the date
of such transfer or assignment and (2) Dealer will not (including, for the avoidance of doubt, after giving effect to any indemnity from
the transferee or assignee to Dealer provided in connection with such transfer or assignment), as a result of such transfer and assignment,
receive from the transferee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that
Dealer would have received from Counterparty in the absence of such transfer and assignment, except to the extent that the lesser amount
is due to a Change in Tax Law after the date of such transfer or assignment;
| (E) | An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such
transfer and assignment; |
| (F) | Counterparty shall cause the transferee to make
such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to
permit Dealer to determine that results described in clauses (D)
and (E) will not occur upon or after such transfer and assignment; and |
| (G) | Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel
fees, incurred by Dealer in connection with such transfer or assignment. |
| (ii) | Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without
Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s
credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms
of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or
(B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term
issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard
and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by Moody’s Investor Service, Inc.
(“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or
better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in the case of any transfer or
assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment,
(i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) such
transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code,
(iii)(1) Counterparty will not, as a result of such transfer or assignment, be required to pay the transferee or assignee on any payment
date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount that Counterparty would have been required to pay to
Dealer in the absence of such transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after
the date of such transfer or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee
or assignee on any payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Counterparty would
have received from Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change
in Tax Law after the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the
Option Equity Percentage exceeds 17.0%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition
described in clauses (A), (B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially
reasonable efforts to effect a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and
within a time period reasonably acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange
Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”),
such that following such partial termination no Excess Ownership Position exists. In the event that Dealer so |
designates an Early
Termination Date with respect to a portion of the Transaction, a payment shall be made 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 a Number of Options
equal to the number of Options underlying the Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial
termination and (3) the Terminated Portion were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section
9(k) shall apply to any amount that is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the
Affected Party). The “Section 16 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
Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part 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. The “Option Equity Percentage” as of any day is the fraction,
expressed as a percentage, (A) the numerator of which is the sum of (1) the product of the Number of Options and the Option Entitlement
and (2) the aggregate number of Shares underlying any other call option transaction sold by Dealer to Counterparty, and (B) the denominator
of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Dealer
and any person whose ownership position would be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”)
under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, 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 under any Applicable Restriction, as determined by Dealer in its reasonable
discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could
give rise to reporting or registration obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange
Act as in effect on the Trade Date) or other requirements (including obtaining prior approval from any person or entity) of a Dealer Person,
or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion,
minus (B) 1% of the number of Shares outstanding. Dealer shall cause the transferee or assignee to make the Payee Tax Representations
and to provide such tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results
described in (ii), (iii)(1) and (iii)(2) of this paragraph will not occur upon or after the transfer and assignment.
| (iii) | 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. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance. |
| (f) | Staggered Settlement. If upon advice of counsel with respect to applicable legal and regulatory
requirements, including any requirements relating to Dealer’s hedging activities hereunder, Dealer reasonably determines 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 any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal
Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered 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 such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date; |
| (ii) | the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered
Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and |
| (iii) | if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on
the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on
each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such
Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above. |
| (g) | [Insert any Dealer Agency Language][Reserved]. |
| (h) | Additional Termination Events. |
| (i) | Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of
which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: |
| (A) | Counterparty shall, within five Scheduled Trading Days of the Conversion Date for such Early Conversion,
provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered
for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving
of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); |
| (B) | upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an
Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for
such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number
of Options”) equal to the lesser of (x) the number of Affected Convertible Notes and (y) the Number of Options as of the Conversion
Date for such Early Conversion; |
| (C) | any payment hereunder with respect to such termination
shall be calculated pursuant to Section 6 of the Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction
having terms identical to the Transaction and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole
Affected Party with respect to such Additional Termination Event and (z) the terminated portion of the Transaction were the sole Affected
Transaction; provided that the amount payable with respect to such termination shall
not be greater than (1) the Applicable Percentage, multiplied by (2) the Affected Number of Options, multiplied by (3) (x)
the sum of (i) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible
Note upon conversion of such Affected Convertible Note and (ii) the number of Shares delivered (if any) to the “Holder” (as
such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note, multiplied
by the Applicable Limit Price on the settlement date for the conversion of such Affected Convertible Note, minus (y)
the Synthetic Instrument Adjusted Issue Price determined by the Calculation Agent based on the date of payment of the amount due with
respect to the relevant Affected Number of Options (the “Unwind Date”). “Synthetic Instrument Adjusted Issue
Price” shall mean the amount determined by the Calculation Agent by reference to the table set forth below (the “Synthetic
Instrument AIP |
Table”).
If the relevant Unwind Date is not listed in the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined
by the Calculation Agent by reference to the Synthetic Instrument AIP Table, using a linear interpolation between the lower and higher
Synthetic Instrument Adjusted Issue Prices for the Unwind Dates immediately preceding and immediately following the relevant Unwind Date.
For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(k) of this Confirmation.
|
Unwind Date |
Synthetic Instrument Adjusted
Issue Price |
|
March 8, 2024 |
$875.50 |
|
September 15, 2024 |
$884.69 |
|
March 15, 2025 |
$893.78 |
|
September 15, 2025 |
$903.14 |
|
March 15, 2026 |
$912.75 |
|
September 15, 2026 |
$922.64 |
|
March 15, 2027 |
$932.80 |
|
September 15, 2027 |
$943.24 |
|
March 15, 2028 |
$953.97 |
|
September 15, 2028 |
$965.01 |
|
March 15, 2029 |
$976.35 |
|
September 15, 2029 |
$988.01 |
|
March 15, 2030 |
$1,000.00 |
| (D) | for the avoidance of doubt, in
determining the amount payable in respect of such Affected Transaction pursuant to Section
6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion
and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or
on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion
Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision
and (z) the corresponding Convertible Notes remain outstanding; and |
| (E) | the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such
Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. |
| (ii) | Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty
occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture that results in the Convertible Notes
becoming or being declared due and payable pursuant to the terms of the Indenture, then such acceleration shall constitute an Additional
Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be
deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the
party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. |
| (iii) | Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x)
in the case of a Repayment Event resulting from the repurchase of any Convertible Notes by Counterparty upon the occurrence of a “Fundamental
Change” (as such term is defined in the Indenture), a “Tax Redemption” (as such term is defined in the |
Indenture) or an “Optional
Redemption” (as such term is defined in the Indenture), shall notify Dealer of such Repayment Event and (y) in the case of a Repayment
Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the aggregate principal amount
of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”). Such Repayment Notice,
in the case of a Repayment Event described in clause (y) of the immediately preceding sentence only, shall contain the representation
and warranty that Counterparty is not, on the date thereof, in possession of any material non-public information with respect to Counterparty
or the Shares. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute an Additional Termination Event as provided
in this Section 9(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate an Exchange Business Day following receipt
of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction corresponding to a number of Options
(the “Repayment Options”) equal to the lesser of (A) the aggregate principal amount of such Convertible Notes
specified in such Repayment Notice, divided by USD 1,000, and (B) the Number of Options as of the date Dealer designates such Early
Termination Date and, as of such date, the Number of Options shall be reduced by the number of Repayment Options. Any payment hereunder
with respect to such termination (the “Repayment Unwind Payment”) 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 a Number of Options equal to the number of Repayment 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; provided
that in the event of a Repayment Event resulting from a “Fundamental Change” (as such term is defined in the Indenture) or
in connection with a “Tax Redemption” (as defined in the Indenture) or an “Optional Redemption” (as such term
is defined in the Indenture), the Repayment Unwind Payment shall not be greater than (x) the number of Repayment Options multiplied
by (y) the product of (A) the Applicable Percentage and (B) (x) the amount paid by Counterparty per Convertible Note in connection with
the relevant Repayment Event pursuant to the relevant sections of the Indenture minus (y) the Synthetic Instrument Adjusted Issue
Price determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table based on the date of payment of the relevant
amount (the “Repayment Date”) as if such Repayment Date were the Unwind Date. If the relevant Repayment Date is not
listed in the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent by reference
to the Synthetic Instrument AIP Table using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices
for the Unwind Dates immediately preceding and immediately following the relevant Repayment Date. For the avoidance of doubt, any payment
pursuant to this paragraph shall be subject to Section 9(k) of this Confirmation.
For the avoidance
of doubt, solely for purposes of calculating the amount payable pursuant to Section 6 of the Agreement pursuant to the immediately preceding
sentence, Dealer shall assume that the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or
acquisitions by or on behalf of Counterparty leading thereto had not occurred, no adjustments to the “Conversion Rate” (as
such term is defined in the Indenture) have occurred pursuant to any Excluded Provision and the corresponding Convertible Notes remain
outstanding as if the circumstances related to such Repayment Event had not occurred “Repayment Event” means that (i)
any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental change, howsoever defined, or for any
other reason) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty or any of its subsidiaries
in exchange for delivery of any property or assets of such party (howsoever described), (iii) any principal of any of the Convertible
Notes is repaid prior to the final maturity date of the Convertible Notes (for any reason other than as a result of an acceleration of
the Convertible Notes that results in an Additional Termination Event pursuant to Section 9(h)(ii)), or (iv) any Convertible Notes are
exchanged by or for the benefit of the “Holders” (as defined in the Indenture) thereof for any other securities of Counterparty
or any of its subsidiaries (or any
other property, or
any combination thereof) pursuant to any exchange offer or similar transaction. For the avoidance of doubt, any conversion of Convertible
Notes (whether into cash, Shares, “Reference Property” (as defined in the Indenture) or any combination thereof) pursuant
to the terms of the Indenture shall not constitute a Repayment Event.
| (i) | Amendments to Equity Definitions. |
| (i) | Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “a diluting
or concentrative” and replacing them with the words “a material” and adding the phrase “or the Options, as a result
of a corporate event involving the Issuer” at the end of the sentence. |
| (ii) | Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%”
in the third line thereof and by replacing all references to “voting shares” therein with “Shares”. |
| (iii) | Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(1)” immediately
following the word “means” in the first line thereof and (2) inserting immediately prior to the semi-colon at the end of subsection
(B) thereof the following words: “or (2) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the
ISDA Master Agreement with respect to that Issuer”. |
| (iv) | Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may
elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty”
in the first sentence of such section. |
| (j) | No Netting or Set-off. The provisions of Section 2(c) 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 under any other agreement between the
parties hereto, by operation of law or otherwise. |
| (k) | 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 holders of Shares consists solely of cash,
(ii) an Announcement Event, 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 other than an Event of Default
of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in
Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control), and if Dealer
would owe any amount to Counterparty pursuant to Section 6(d)(ii) 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 5:00 p.m. (New York City time) on the date of the Announcement Event, 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 and (b) Counterparty remakes the
representation set forth in Section 8(f) as of the date of such election. |
|
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, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall 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 to Dealer 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 the purchase price paid in connection with the 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 Share Termination Alternative is applicable to the Transaction. |
| (l) | Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. |
Each party (i) certifies
that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in
the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided
herein.
| (m) | Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment
of Dealer, based on the advice of counsel, the Shares (“Hedge Shares”) acquired by Dealer for the purpose of effecting
a commercially reasonable hedge of its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration
under the Securities Act, Counterparty shall, at its election, either (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 and enter into an agreement, in form and
substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered secondary offering of similar
size; provided, however, that if Dealer, in its 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 paragraph shall apply at the election of Counterparty, (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 similar size, in form and substance satisfactory to Dealer (in which case, the
Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate
Dealer for any commercially reasonable discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private
placement of similar size), or (iii) purchase the Hedge Shares from Dealer at the then-current market price on such Exchange Business
Days, and in the amounts and at such time(s), requested by Dealer. |
| (n) | 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. |
| (o) | Right to Extend. Dealer may postpone or add, in whole or in part, any Valid Day or Valid
Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to some or all
of the Options hereunder, if Dealer reasonably determines, in its discretion, based on the advice of counsel in the case of clause (ii)
below, that such action is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or
hedge unwind activity hereunder in light of existing liquidity conditions or (ii) to enable Dealer to effect purchases of Shares
in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an
affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related
policies and procedures applicable to Dealer; provided that such policies and procedures have been adopted by Dealer in good faith
and are generally applicable in similar situations and applied in a non-discriminatory manner; provided further that no such Valid
Day or other date of valuation, payment or delivery may be postponed or added more than 40 Valid Days after the original Valid Day or
other date of valuation, payment or delivery, as the case may be. |
| (p) | Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is
not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders
of Counterparty in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall
be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements
with respect to the Transaction; provided, further that nothing herein shall limit or shall be deemed to limit Dealer’s
rights in respect of any transactions other than the Transaction. |
| (q) | Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to
be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties |
hereto to be entitled
to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code,
(ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default
under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code,
and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement
payment” and a “transfer” as defined in the Bankruptcy Code.
| (r) | Notice of Certain Other Events. Counterparty covenants and agrees that: |
| (i) | promptly following the public announcement of the results of any election by the holders of Shares with
respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of the weighted
average of the types and amounts of consideration received by holders of Shares upon consummation of such Merger Event (the date of such
notification, the “Consideration Notification Date”); provided that in no event shall the Consideration Notification
Date be later than the date on which such Merger Event is consummated; and |
| (ii) | (A) Counterparty shall give Dealer commercially reasonable advance (but in any event at least one Exchange
Business Day prior to the relevant Adjustment Notice Deadline) written notice of the section or sections of the Indenture and, if applicable,
the formula therein, pursuant to which any adjustment will be made to the Convertible Notes in connection with any Potential Adjustment
Event (other than a Potential Adjustment in respect of the Dilution Adjustment Provisions set forth in Section 14.04(b) or Section 14.04(d)
of the Indenture) or Merger Event and (B) promptly following any such adjustment, Counterparty shall give Dealer written notice of the
details of such adjustment. The “Adjustment Notice Deadline” means (i) for any Potential Adjustment in respect
of the Dilution Adjustment Provision set forth in Section 14.04(a) of the Indenture, the relevant “Ex-Dividend Date”
(as such term is defined in the Indenture) or “Effective Date” (as such term is defined in the Indenture), as the case may
be, (ii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the first formula set forth in Section 14.04(c)
of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the period referred to in the definition
of “SP0” in such formula, (iii) for any Potential Adjustment in respect of the Dilution Adjustment Provision
in the second formula set forth in Section 14.04(c) of the Indenture, the first “Trading Day” (as such term is defined
in the Indenture) of the “Valuation Period” (as such term is defined in the Indenture), (iv) for any Potential Adjustment
in respect of the Dilution Adjustment Provision set forth in Section 14.04(e) of the Indenture, the first “Trading Day”
(as such term is defined in the Indenture) of the period referred to in the definition of “SP’” in the formula in such
Section, and (v) for any Merger Event, the effective date of such Merger Event (or, if earlier, the first day of any valuation or
similar period in respect of such Merger Event). |
| (s) | 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, Hedging Disruption, an Excess Ownership Position, or Illegality (as defined in the Agreement)). |
| (t) | Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges
and agrees that: (A) at any time on and prior to the 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 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.
| (u) | Early Unwind. In the event the sale of the “Firm Notes” (as defined in the Purchase
Agreement (the “Purchase Agreement”) dated as of March 5, 2024, among Counterparty, the guarantors party thereto and
BofA Securities, Inc., as representative of the Initial Purchasers party thereto (the “Initial Purchasers”)) is not
consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required pursuant
to Section 9(a), in each case 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. |
| (v) | Payment by Counterparty. In the event that, following payment of the Premium, (i) an Early
Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other
than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an
amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of
the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero. |
| (w) | Other Adjustments Pursuant to the Equity Definitions. Notwithstanding anything to the contrary
in this Confirmation, solely for the purpose of adjusting the Cap Price, the terms “Merger Event,” “Tender Offer”
and “Potential Adjustment Event” shall each have the meanings assigned to such term in the Equity Definitions (in the case
of the definition of “Tender Offer,” as amended by Section 9(i)(ii) above, and in the case of the definition of “Potential
Adjustment Event”, as amended by Section 9(i)(i) above), and upon the occurrence of a Merger Date, the occurrence of a Tender Offer
Date, or declaration by Counterparty of the terms of any Potential Adjustment Event, respectively, as such terms are defined in the Equity
Definitions, the Calculation Agent shall determine whether such occurrence or declaration, as applicable, has had a material economic
effect on the Transaction and, if so, shall, adjust the Cap Price to preserve the fair value of the Options to Dealer; provided
that (x) solely in the case of a Potential Adjustment Event pursuant Section 11.2(e)(i), (ii)(A) or (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, (y) the
parties agree that Exempted Repurchases shall not be considered Potential Adjustment Events and (z) in no event shall the Cap Price be
less than the Strike Price. “Exempted Repurchase” means any (1) open market Share repurchase at prevailing market prices
(including, without limitation, any discount to average VWAP prices), (2) Share repurchase through a dealer pursuant to accelerated share
repurchases, forward contracts or similar transactions that is entered into at prevailing market prices (including, without limitation,
any discount to average VWAP prices) and in accordance with customary market terms for transactions of such type to repurchase the Shares,
or (3) 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, so long as, in the case
of each of clause (1) and clause (2), such repurchase or transaction would not reduce the number of total Shares outstanding to be less
than 377,202,034 Shares, as determined by Calculation Agent in a commercially reasonable manner and as adjusted by the Calculation Agent
to account for any subdivision or combination with respect to the Shares. |
| (i) | 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 U.S. federal withholding tax imposed or collected pursuant to 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 (a “FATCA Withholding Tax”). 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. |
| (ii) | Tax Documentation. For the purposes
of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Dealer shall provide to Counterparty
a valid U.S. Internal Revenue Service Form [W-9]1, or any successor thereto, and
Counterparty shall provide to Dealer a valid U.S. Internal Revenue Service Form W-9, or any
successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly
upon learning that any such tax form previously provided by it has become obsolete or incorrect
and (iii) promptly upon reasonable request of the other party. Additionally, each party
shall, promptly upon request by the other party, provide such other tax forms and documents
reasonably requested by the other party. |
| (iii) | Payor Tax Representations. For the purpose of Section 3(e) of the Agreement, each party makes the
following representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority,
of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under
Section 9(h) of the Agreement or amounts payable hereunder that are considered to be interest for U.S. federal income tax purposes) to
be made by it to the other party under the Agreement. In making this representation, it may rely on (i) the accuracy of any representations
made by the other party pursuant to Section 9(x)(iv) of this Confirmation, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of the Agreement, (iii) the satisfaction of the agreement of the other party contained in the last sentence of Section
9(x)(iv) of this Confirmation and (iv) the documentation provided by the other party pursuant to Section 9(x)(ii) of this Confirmation,
except that it will not be a breach of this representation where reliance is placed on clause (ii) above and the other party does not
deliver a form or document under Section 4(a)(iii) of the Agreement by reason of material prejudice to its legal or commercial position. |
| (iv) | Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, the parties make the
representations below: |
(A) Counterparty is
a corporation for U.S. federal income tax purposes and is organized under the laws of Delaware. Counterparty is a “U.S. person”
as that term is used in Treasury Regulations Section 1.1441-4(a)(3)(ii) and an exempt recipient as that term is used in Treasury Regulations
Section 1.6049-4(c)(l)(ii).
(B) [Dealer is a
corporation for U.S. federal income tax purposes and is organized under the laws of [the United States]. Dealer is a “U.S. person”
as that term is used in Treasury Regulations Section 1.1441-4(a)(3)(ii) and an exempt recipient as that term is used in Treasury Regulations
Section 1.6049-4(c)(l)(ii).]2
1 To
be modified for Dealers as appropriate.
2 To be modified for Dealers
as appropriate.
In the event that
either party becomes aware that a representation made under this Section 9(x)(iv) would not be accurate and complete if made at that time,
it shall so notify the other party promptly thereafter.
| (y) | 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
facsimile or 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. |
| (z) | [Conduct Rules. Each of Dealer and Counterparty 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. |
| (aa) | Risk Disclosure Statement.
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”.]3 |
| (bb) | [U.S. Resolution Stay Protocol. The parties acknowledge and 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 the Agreement, and for such purposes the Agreement shall be deemed
a Protocol Covered Agreement, Dealer shall be deemed a Regulated Entity and Counterparty shall be deemed an Adhering Party; (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 the Agreement, and for such purposes the Agreement shall be deemed
a Covered Agreement, Dealer shall be deemed a Covered Entity and Counterparty shall be deemed a Counterparty Entity; 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 the Agreement, and for such purposes
the Agreement 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 the Agreement, 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
the Agreement 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 “the Agreement” 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 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 |
3 Insert if applicable.
of an affiliate into
certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.]4
| (cc) | [Insert Other Regulatory Boilerplate] |
4 Update as necessary.
Please confirm that the foregoing
correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.
Very truly yours,
|
[Dealer] |
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By: |
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Authorized Signatory |
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Name: |
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Accepted and confirmed
as of the Trade Date:
Kosmos Energy Ltd. |
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By: |
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Authorized Signatory |
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Name: |
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[Signature Page to [Base][Additional]
Capped Call Confirmation]
Exhibit 10.2
[Dealer Name and Address]
March 6, 2024
To: Kosmos Energy Ltd.
8176 Park Lane, Suite 500
Dallas, Texas 75231
Attention: General Counsel
Re: Additional Call Option Transaction
The purpose of this letter
agreement (this “Confirmation”) is to confirm the terms and conditions of the call option transaction entered into
between [Dealer Name] (“Dealer”) and Kosmos Energy Ltd. (“Counterparty”) as of the Trade
Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred
to in the ISDA Master Agreement specified below. Each party further agrees that this Confirmation together with the Agreement evidence
a complete binding agreement between Counterparty and Dealer as to the subject matter and terms of the Transaction to which this Confirmation
relates, and shall supersede all prior or contemporaneous written or oral communications with respect thereto.
The definitions and provisions
contained in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International
Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. In the event of any inconsistency
between the Equity Definitions and this Confirmation, this Confirmation shall govern. Certain defined terms used herein are based on terms
that are defined in the Preliminary Offering Memorandum dated March 4, 2024 (the “Offering Memorandum”) relating to
the 3.125% Convertible Senior Notes due 2030 (as originally issued by Counterparty, the “Convertible Notes” and each
USD 1,000 principal amount of Convertible Notes, a “Convertible Note”) issued by Counterparty in an aggregate initial
principal amount of USD 350,000,000 (as increased by an aggregate principal amount of USD 50,000,000 pursuant to the exercise by
the Initial Purchasers (as defined herein) of their option to purchase additional Convertible Notes pursuant to the Purchase Agreement
(as defined herein)) pursuant to an Indenture to be dated March 8, 2024 among Counterparty, the guarantors named therein and Wilmington
Trust, National Association, as trustee (the “Indenture”). In the event of any inconsistency between the terms defined
in the Offering Memorandum, the Indenture and this Confirmation, this Confirmation shall govern. The parties acknowledge that this Confirmation
is entered into on the date hereof with the understanding that (i) definitions set forth in the Indenture which are also defined herein
by reference to the Indenture and (ii) sections of the Indenture that are referred to herein will conform to the descriptions thereof
in the Offering Memorandum. If any such definitions in the Indenture or any such sections of the Indenture differ from the descriptions
thereof in the Offering Memorandum, the descriptions thereof in the Offering Memorandum will govern for purposes of this Confirmation.
The parties further acknowledge that the Indenture section numbers used herein are based on the draft of the Indenture last reviewed by
Dealer as of the date of this Confirmation, and if any such section numbers are changed in the Indenture as executed, the parties will
amend this Confirmation in good faith to preserve the intent of the parties. Subject to the foregoing, references to the Indenture herein
are references to the Indenture as in effect on the date of its execution, and if the Indenture is amended or supplemented following such
date (other than any amendment or supplement (x) pursuant to Section 10.01(i) of the Indenture that, as determined by the Calculation
Agent, conforms the Indenture to the description of Convertible Notes in the Offering Memorandum or (y) pursuant to Section 14.07 of the
Indenture, subject, in the case of this clause (y), to the second paragraph under “Method of Adjustment” in Section 3),
any such amendment or supplement will be disregarded for purposes of this Confirmation unless the parties agree otherwise in writing.
Each party is hereby advised,
and each such party acknowledges, that the other party has engaged in, or refrained from engaging in, substantial financial transactions
and has taken other material actions in reliance upon the parties’ entry into the Transaction to which this Confirmation relates
on the terms and conditions set forth below.
1.
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 supplement, form a part of, and be subject to an agreement in the form of
the 2002 ISDA Master Agreement (the “Agreement”) as if Dealer and Counterparty had executed an agreement in such form
(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) in respect of Section 5(a)(vi) of the Agreement, (a) the “Cross Default” provisions shall apply
to Dealer with a “Threshold Amount” of
three percent of the shareholders’
equity of [Dealer][Dealer’s ultimate parent] as of the Trade Date, (b) the phrase “or becoming capable at such time of being
declared” shall be deleted from clause (1) and (c) the following language shall be added to the end thereof: “Notwithstanding
the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (x) the default was caused solely by
error or omission of an administrative or operational nature; (y) funds were available to enable the party to make the payment when due;
and (z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”,
(iii) the term “Specified Indebtedness” shall have the meaning specified in Section 14 of the Agreement, except that such
term shall not include obligations in respect of deposits received in the ordinary course of a party’s banking business and (iv)
the “Default Under Specified Transaction” provision of Section 5(a)(v) of the Agreement shall not apply to Counterparty) on
the Trade Date. In the event of any inconsistency between provisions of the Agreement and this Confirmation, this Confirmation will prevail
for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no transaction other than the Transaction
to which this Confirmation relates shall be governed by the Agreement.
2.
The terms of the particular Transaction to which this Confirmation relates are as follows:
General Terms.
|
Trade Date: |
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March 6, 2024 |
|
Effective Date: |
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The second Exchange Business Day immediately prior to the Premium Payment Date, subject to Section 9(u). |
|
Option Style: |
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“Modified American”, as described under “Procedures for Exercise” below |
|
Option Type: |
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Call |
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Buyer: |
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Counterparty |
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Seller: |
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Dealer |
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Shares: |
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The common stock of Counterparty, par value USD 0.01 per share (Exchange symbol “KOS”). |
|
Number of Options: |
|
50,000. For the avoidance of doubt, the Number of Options shall be reduced by any Options exercised by Counterparty. In no event will the Number of Options be less than zero. |
|
Applicable Percentage: |
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20% |
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Option Entitlement: |
|
A number equal to the product of the Applicable Percentage and 142.4501. |
|
Strike Price: |
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USD 7.0200 |
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Cap Price: |
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USD 10.8000 |
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Premium: |
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USD 1,245,000 |
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Premium Payment Date: |
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March 8, 2024 |
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Exchange: |
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The New York Stock Exchange |
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Related Exchange(s): |
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All Exchanges |
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Excluded Provisions: |
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Section 14.04(h) and Section 14.03 of the Indenture. |
Procedures for Exercise.
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Conversion Date: |
|
With respect to any conversion of a Convertible Note (other than any conversion of Convertible Notes with a Conversion Date occurring prior to the Free Convertibility Date (any such conversion, an “Early Conversion”), to which the provisions of Section 9(h)(i) of this Confirmation shall apply), the date on which the “Holder” (as such term is defined in the Indenture) of such Convertible Note satisfies all of the requirements for conversion thereof as set forth in Section 14.02(b) of the Indenture; provided that if Counterparty has not delivered to Dealer a related Notice of Exercise, then in no event shall a Conversion Date be deemed to occur hereunder (and no Option shall be exercised or deemed to be exercised hereunder) with respect to any surrender of a Convertible Note for conversion in respect of which Counterparty has elected to designate a financial institution for exchange in lieu of conversion of such Convertible Note pursuant to Section 14.12 of the Indenture. |
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Free Convertibility Date: |
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December 15, 2029 |
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Expiration Time: |
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The Valuation Time |
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Expiration Date: |
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March 15, 2030, subject to earlier exercise. |
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Multiple Exercise: |
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Applicable, as described under “Automatic Exercise” and “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” below. |
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Automatic Exercise: |
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Notwithstanding Section 3.4 of the Equity Definitions, on each Conversion Date occurring on or after the Free Convertibility Date, in respect of which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder, a number of Options equal to (i) the number of Convertible Notes in denominations of USD 1,000 as to which such Conversion Date has occurred minus (ii) the number of Options that are or are deemed to be automatically exercised on such Conversion Date under the Base Call Option Transaction Confirmation letter agreement dated March 5, 2024 between Dealer and Counterparty (the “Base Call Option Confirmation”), shall be deemed to be automatically exercised; provided that such Options shall be exercised or deemed exercised only if Counterparty has provided a Notice of Exercise to Dealer in accordance with “Notice of Exercise” below. |
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Notwithstanding the foregoing, in no event shall the number of Options that are exercised or deemed exercised hereunder exceed the Number of Options. |
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Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date: |
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Notwithstanding Section 3.4 of the Equity Definitions or “Automatic Exercise” above, unless Counterparty notifies Dealer in writing prior to 5:00 p.m. (New York City time) |
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on the Scheduled Valid Day immediately preceding the Expiration Date that it does not wish automatic exercise to occur with respect to any Remaining Repurchase Options (as defined below), a number of Options equal to the lesser of (a) the Number of Options (after giving effect to the provisions opposite the caption “Automatic Exercise” above) as of 9:00 a.m. (New York City time) on the Expiration Date and (b) the Remaining Repurchase Options minus the number of Remaining Options (as defined in the Base Call Option Confirmation) (such lesser number, the “Remaining Options”) will be deemed to be automatically exercised as if (i) a number of Convertible Notes (in denominations of USD 1,000 principal amount) equal to such number of Remaining Options were outstanding under the Indenture and were converted with a “Conversion Date” (as defined in the Indenture) occurring on or after the Free Convertibility Date and (ii) the Notice of Final Settlement Method, if any, applied to such Convertible Notes; provided that no such automatic exercise pursuant to this paragraph will occur if the Relevant Price for each Valid Day during the Settlement Averaging Period is less than or equal to the Strike Price. “Remaining Repurchase Options” shall mean the excess of (I) the aggregate number of Convertible Notes (in denominations of USD 1,000 principal amount) that were subject to Repayment Events (as defined below) (other than Repayment Events pursuant to the terms of the Indenture) described in clause (y) of Section 9(h)(iii) (“Repurchase Events”) during the term of the Transaction over (II) the aggregate number of Repayment Options (as defined below) that were terminated hereunder relating to Repurchase Events during the term of the Transaction plus the aggregate number of Repayment Options (as defined in the Base Call Option Confirmation) terminated under the Base Call Option Confirmation relating to Repurchase Events (as defined therein) during the term of the “Transaction” under the Base Call Option Confirmation. Counterparty shall notify Dealer in writing of the number of Remaining Repurchase Options before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date. |
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Notice of Exercise: |
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Notwithstanding anything to the contrary in the Equity Definitions or under “Automatic Exercise” above, but subject to “Automatic Exercise of Remaining Repurchase Options After Free Convertibility Date” above, in order to exercise any Options relating to Convertible Notes with a Conversion Date occurring on or after the Free Convertibility Date, Counterparty must notify Dealer in writing before 5:00 p.m. (New York City time) on the Scheduled Valid Day immediately preceding the Expiration Date specifying the number of such Options; provided that, notwithstanding the foregoing, such notice (and the related exercise of Options hereunder) shall be effective if given after the applicable notice deadline specified above but prior to 5:00 p.m. (New York City time) on the fifth Exchange Business Day following such |
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notice deadline, in which event the Calculation Agent shall have the right to adjust Dealer’s delivery obligation hereunder and the Settlement Date in a commercially reasonable manner, with respect to the exercise of such Options, as appropriate to reflect the additional commercially reasonable costs (including, but not limited to, losses as a result of hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities, with such adjustments made assuming that Dealer maintains commercially reasonable hedge positions (including the unwinding of any hedge position), solely resulting from Dealer not having received such notice prior to such notice deadline (it being understood that the adjusted delivery obligation described in this proviso can never be less than zero and can never require any payment by Counterparty); provided further that if the Relevant Settlement Method for such Options is (x) Cash Settlement or (y) Combination Settlement, Dealer shall have received a separate notice (the “Notice of Final Settlement Method”) in respect of all such Convertible Notes before 5:00 p.m. (New York City time) on the Free Convertibility Date specifying (1) the Relevant Settlement Method for such Options, and (2) if the Relevant Settlement Method is Combination Settlement, the fixed amount of cash per Convertible Note that Counterparty has elected to deliver to “Holders” (as such term is defined in the Indenture) of the related Convertible Notes (the “Specified Cash Amount” which, for the avoidance of doubt, must be at least USD 1,000) and if Counterparty fails to timely provide such Notice of Final Settlement Method, it shall be deemed to have provided a Notice of Final Settlement Method indicating that the Relevant Settlement Method is Net Share Settlement. Counterparty acknowledges its responsibilities under applicable securities laws, and in particular Section 9 and Section 10(b) of the Exchange Act (as defined below) and the rules and regulations thereunder, in respect of any election of a settlement method with respect to the Convertible Notes where the corresponding Relevant Settlement Method is not Net Share Settlement. |
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Valuation Time: |
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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 good faith and in its commercially reasonable discretion. |
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Market Disruption Event: |
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Section 6.3(a) of the Equity Definitions is hereby replaced in its entirety by the following: |
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“‘Market Disruption Event’ means, in respect of a Share, (i) a failure by the primary United States national or regional securities exchange or market on which the Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. (New York City time) on any Scheduled Valid Day for the Shares for more than one half-hour period in the aggregate during regular trading hours |
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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 Shares or in any options contracts or futures contracts relating to the Shares.” |
Settlement Terms.
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Settlement Method: |
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For any Option, Net Share Settlement; provided that if the Relevant Settlement Method as set forth below for such Option is not Net Share Settlement, then the Settlement Method for such Option shall be such Relevant Settlement Method, but only if Counterparty (or any agent authorized by Counterparty and previously identified to Dealer by Counterparty in writing) shall have notified Dealer of the Relevant Settlement Method in the Notice of Final Settlement Method for such Option. If any such agent on behalf of Counterparty provides any such notice, Dealer shall be entitled to rely on the accuracy of such notice without any independent investigation, and the contents of such notice shall be binding on Counterparty. |
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Relevant Settlement Method: |
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In respect of any Option: |
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|
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(i) if Counterparty has elected to settle its conversion obligations in respect of
the related Convertible Note in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(B) of the Indenture with a
Specified Cash Amount equal to USD 1,000, then the Relevant Settlement Method for such Option shall be Net Share
Settlement; |
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(ii) if Counterparty has elected to settle its conversion obligations in respect
of the related Convertible Note in a combination of cash and Shares pursuant to Section 14.02(a)(iv)(B) of the Indenture with a
Specified Cash Amount greater than USD 1,000, then the Relevant Settlement Method for such Option shall be Combination Settlement;
and |
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(iii) if Counterparty has elected to settle its conversion obligations in respect
of the related Convertible Note entirely in cash pursuant to Section 14.02(a)(iv)(A) of the Indenture, then the Relevant Settlement
Method for such Option shall be Cash Settlement. |
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Net Share Settlement: |
|
If Net Share Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will deliver to Counterparty, on the relevant Settlement Date for each such Option, a number of Shares (the “Net Share Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for each such Option, of (i) (a) the Daily Option Value for such Valid Day, divided by (b) the Relevant Price on such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Net Share Settlement Amount for any Option exceed a number of Shares equal to the Applicable Limit for such Option |
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divided by the Applicable Limit Price on the Settlement Date for such Option. |
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Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Net Share Settlement Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. |
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Combination Settlement: |
|
If Combination Settlement is applicable to any Option exercised or deemed exercised hereunder, Dealer will pay or deliver, as the case may be, to Counterparty, on the relevant Settlement Date for each such Option: |
| (i) | cash (the “Combination Settlement Cash Amount”) equal to the sum, for each Valid Day
during the Settlement Averaging Period for such Option, of (A) an amount (the “Daily Combination Settlement Cash Amount”)
equal to the lesser of (1) the product of (x) the Applicable Percentage and (y) the Specified Cash Amount minus USD 1,000 and (2)
the Daily Option Value for such Valid Day, divided by (B) the number of Valid Days in the Settlement Averaging Period; provided
that if the calculation in clause (A) above results in zero or a negative number for any Valid Day, the Daily Combination Settlement Cash
Amount for such Valid Day shall be deemed to be zero; and |
| (ii) | Shares (the “Combination Settlement Share Amount”) equal to the sum, for each Valid
Day during the Settlement Averaging Period for such Option, of a number of Shares for such Valid Day (the “Daily Combination
Settlement Share Amount”) equal to (A) (1) the Daily Option Value for such Valid Day minus the Daily Combination
Settlement Cash Amount for such Valid Day, divided by (2) the Relevant Price on such Valid Day, divided by (B) the number
of Valid Days in the Settlement Averaging Period; provided that if the calculation in sub-clause (A)(1) above results in zero or
a negative number for any Valid Day, the Daily Combination Settlement Share Amount for such Valid Day shall be deemed to be zero; |
provided that
in no event shall the sum of (x) the Combination Settlement Cash Amount for any Option and (y) the Combination Settlement Share
Amount for such Option multiplied by the Applicable Limit Price on the Settlement Date for such Option, exceed the Applicable Limit
for such Option.
|
|
Dealer will pay cash in lieu of delivering any fractional Shares to be delivered with respect to any Combination Settlement Share Amount valued at the Relevant Price for the last Valid Day of the Settlement Averaging Period. |
|
Cash Settlement: |
If Cash Settlement is applicable to any Option exercised or deemed exercised hereunder, in lieu of Section 8.1 of the |
|
|
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Equity Definitions, Dealer will pay to Counterparty, on the relevant Settlement Date for each such Option, an amount of cash (the “Cash Settlement Amount”) equal to the sum, for each Valid Day during the Settlement Averaging Period for such Option, of (i) the Daily Option Value for such Valid Day, divided by (ii) the number of Valid Days in the Settlement Averaging Period; provided that in no event shall the Cash Settlement Amount for any Option exceed the Applicable Limit for such Option. |
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Daily Option Value: |
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For any Valid Day, an amount equal to (i) the Option Entitlement on such Valid Day, multiplied by (ii) (A) the lesser of the Relevant Price on such Valid Day and the Cap Price, less (B) the Strike Price on such Valid Day; provided that if the calculation contained in clause (ii) above results in a negative number, the Daily Option Value for such Valid Day shall be deemed to be zero. In no event will the Daily Option Value be less than zero. |
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Applicable Limit: |
|
For any Option, an amount of cash equal to the Applicable Percentage multiplied by the excess of (i) the aggregate of (A) the amount of cash paid to the “Holder” (as such term is defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note and (B) the number of Shares, if any, delivered to the “Holder” (as such term is defined in the Indenture) of the related Convertible Note upon conversion of such Convertible Note multiplied by the Applicable Limit Price on the Settlement Date for such Option, over (ii) USD 1,000. |
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Applicable Limit Price: |
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On any day, the opening price as displayed under the heading “Op” on Bloomberg page KOS <equity> (or any successor thereto). |
|
Valid Day: |
|
A day on which (i) there is no Market Disruption Event and (ii) trading in the Shares generally occurs on the Exchange or, if the Shares are not then listed on the Exchange, on the principal other United States national or regional securities exchange on which the Shares are then listed or, if the Shares are not then listed on a United States national or regional securities exchange, on the principal other market on which the Shares are then listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Valid Day” means a Business Day. |
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Scheduled Valid Day: |
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A day that is scheduled to be a Valid Day on the principal United States national or regional securities exchange or market on which the Shares are listed or admitted for trading. If the Shares are not so listed or admitted for trading, “Scheduled Valid Day” means a Business Day. |
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Business Day: |
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Any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York or commercial banks in New York are authorized or required by law or executive order to close or be closed. |
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Relevant Price: |
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On any Valid Day, the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” |
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on Bloomberg page KOS <equity> AQR (or its equivalent successor if such page is not available) in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange 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 good faith and in a commercially reasonable manner using, if practicable, a volume-weighted average method). The Relevant Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours. |
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Settlement Averaging Period: |
|
For any Option and regardless of the Settlement Method applicable to such Option, the 40 consecutive Valid Days commencing on, and including, the 41st Scheduled Valid Day immediately prior to the Expiration Date. |
|
Settlement Date: |
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For any Option, the second Business Day immediately following the final Valid Day of the Settlement Averaging Period for such Option. |
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Settlement Currency: |
|
USD |
|
Other Applicable Provisions: |
|
The provisions of Sections 9.1(c), 9.8, 9.9 and 9.11 of the Equity Definitions will be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Settled”. “Share Settled” in relation to any Option means that Net Share Settlement or Combination Settlement is applicable to that Option. |
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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 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”)). |
3.
Additional Terms applicable to the Transaction.
Adjustments applicable to the Transaction:
|
Potential Adjustment Events: |
|
Notwithstanding Section 11.2(e) of the Equity Definitions, a “Potential Adjustment Event” means an occurrence of any event or condition, as set forth in any Dilution Adjustment Provision, that would result in an adjustment under the Indenture to the “Conversion Rate” or the composition of a “unit of Reference Property” or to any “Last Reported Sale Price,” “Daily VWAP,” “Daily Conversion Value” or “Daily Settlement Amount” (each as defined in the Indenture). For the avoidance of doubt, Dealer shall not have any delivery or payment obligation |
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hereunder, and no adjustment shall be made to the terms of the Transaction, on account of (x) any distribution of cash, property or securities by Counterparty to holders of the Convertible Notes (upon conversion or otherwise) or (y) any other transaction in which holders of the Convertible Notes are entitled to participate, in each case, in lieu of an adjustment under the Indenture of the type referred to in the immediately preceding sentence (including, without limitation, pursuant to the fourth sentence of the first paragraph of Section 14.04(c) of the Indenture or the fourth sentence of Section 14.04(d) of the Indenture). |
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Method of Adjustment: |
|
Calculation Agent Adjustment, which means that, notwithstanding Section 11.2(c) of the Equity Definitions, upon any Potential Adjustment Event, the Calculation Agent, acting in good faith and commercially reasonably, taking into account the relevant provisions of the Indenture, shall make a corresponding adjustment to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction. |
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Notwithstanding the foregoing and “Consequences of Merger Events / Tender Offers” below: |
| (i) | if the Calculation Agent in good faith disagrees with any adjustment to the Convertible Notes that involves
an exercise of discretion by Counterparty or its board of directors (including, without limitation, pursuant to Section 14.05 of the Indenture,
Section 14.07 of the Indenture or any supplemental indenture entered into thereunder or in connection with any proportional adjustment
or the determination of the fair value of any securities, property, rights or other assets), then in each such case, the Calculation Agent
will determine the adjustment to be made to any one or more of the Strike Price, Number of Options, Option Entitlement and any other variable
relevant to the exercise, settlement or payment for the Transaction in a commercially reasonable manner, taking into account the relevant
provisions of the Indenture; |
| (ii) | in connection with any Potential Adjustment Event as a result of an event or condition set forth in Section
14.04(b) of the Indenture or Section 14.04(c) of the Indenture where, in either case, the period for determining “Y” (as such
term is used in Section 14.04(b) of the Indenture) or “SP0” (as such term is used in Section 14.04(c) of the Indenture),
as the case may be, begins before Counterparty has publicly announced the event or condition giving rise to such Potential Adjustment
Event, then the Calculation Agent shall have the right to adjust, in good faith and in a commercially reasonable manner, any variable
relevant to the exercise, settlement or payment for the |
Transaction as appropriate
to reflect the commercially reasonable costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred
by Dealer in connection with its commercially reasonable hedging activities as a result of such event or condition not having been publicly
announced prior to the beginning of such period; and
| (iii) | if any Potential Adjustment Event is declared and (a) the event or condition giving rise to such
Potential Adjustment Event is subsequently amended, modified, cancelled or abandoned, (b) the “Conversion Rate” (as defined
in the Indenture) is otherwise not adjusted at the time or in the manner contemplated by the relevant Dilution Adjustment Provision based
on such declaration or (c) the “Conversion Rate” (as defined in the Indenture) is adjusted as a result of such Potential
Adjustment Event and subsequently re-adjusted (each of clauses (a), (b) and (c), a “Potential Adjustment Event Change”)
then, in each case, the Calculation Agent shall have the right to adjust, in good faith and in a commercially reasonable manner, any variable
relevant to the exercise, settlement or payment for the Transaction as appropriate to reflect the commercially reasonable costs (including,
but not limited to, hedging mismatches and market losses) and commercially reasonable expenses incurred by Dealer in connection with its
commercially reasonable hedging activities as a result of such Potential Adjustment Event Change. |
|
Dilution Adjustment Provisions: |
Sections 14.04(a), (b), (c), (d) and (e) and Section 14.05 of the Indenture. |
Extraordinary Events applicable to
the Transaction:
|
Merger Events: |
|
Applicable; provided that notwithstanding Section 12.1(b) of the Equity Definitions, a “Merger Event” means the occurrence of any event or condition set forth in the definition of “Share Exchange Event” in Section 14.07(a) of the Indenture. |
|
Tender Offers: |
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Applicable; provided that notwithstanding Section 12.1(d) of the Equity Definitions, a “Tender Offer” means the occurrence of any event or condition set forth in Section 14.04(e) of the Indenture. |
|
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|
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Consequences of Merger
Events/ Tender Offers: |
|
Notwithstanding Section 12.2 and Section 12.3 of the Equity Definitions, upon the occurrence of a Merger Event or a Tender Offer, the Calculation Agent shall make a corresponding adjustment in respect of any adjustment under the Indenture to any one or more of the nature of the Shares (in the case of a Merger Event), Strike Price, |
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Number of Options, Option Entitlement and any other variable relevant to the exercise, settlement or payment for the Transaction, subject to the second paragraph under “Method of Adjustment”; provided, however, that such adjustment shall be made without regard to any adjustment to the “Conversion Rate” (as defined in the Indenture) pursuant to any Excluded Provision; provided further that if (x) with respect to any Merger Event or any Tender Offer, (i) (A) the consideration for the Shares includes (or, at the option of a holder of Shares, may include) shares of an entity or person that is either (1) neither a corporation nor an entity that is treated as a corporation for U.S. federal income tax purposes or (2) not organized under the laws of the United States, any State thereof or the District of Columbia or (B) the Counterparty to the Transaction following such Merger Event or Tender Offer will not be either a corporation or an entity that is treated as a corporation for U.S. federal income tax purposes or will not be organized under the laws of the United States, any State thereof or the District of Columbia and (ii) Dealer determines in a commercially reasonable manner at any time following the occurrence of such Merger Event or Tender Offer that (A) such Merger Event or Tender Offer has had or will have an adverse effect on Dealer under the Transaction or (B) Dealer will incur or has incurred an increased (as compared with circumstances existing on the Trade Date) amount of tax, duty, expense or fee to (1) acquire, establish, re-establish, substitute, maintain, unwind or dispose of any transaction(s) or asset(s) it deems necessary or appropriate to hedge the economic risk of entering into and performing its obligations with respect to the Transaction in a commercially reasonable manner or (2) realize, recover or remit the proceeds of any such transaction(s) or asset(s) or (y) a Prohibited Foreign Transaction occurs, then, in the case of either clause (x) or clause (y), Cancellation and Payment (Calculation Agent Determination) may apply at Dealer’s commercially reasonable election; provided further that, for the avoidance of doubt, adjustments shall be made pursuant to the provisions set forth above regardless of whether any Merger Event or Tender Offer gives rise to an Early Conversion. |
|
Prohibited Foreign Transaction: |
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A Merger Event pursuant to which Counterparty following consummation thereof is organized and existing under the laws of a jurisdiction other than the United States, any State thereof, the District of Columbia, Bermuda, the Cayman Islands or the United Kingdom. |
|
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”, (y) the phrase “exercise, settlement, payment or any other terms of the Transaction |
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(including, without limitation, the spread)” shall be replaced with the phrase “Cap Price (provided that in no event shall the Cap Price be less than the Strike Price)”, and (z) for the avoidance of doubt, the Calculation Agent shall determine whether the relevant Announcement Event has had an economic effect on the Transaction (and, if so, shall, acting in good faith and in a commercially reasonable manner, adjust the Cap Price accordingly) on one or more occasions on or after the date of the Announcement Event up to, and including, the Expiration Date, any Early Termination Date and/or any other date of cancellation, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable. |
|
Announcement Event: |
|
(i) The public announcement by Issuer, any subsidiary of Issuer, any affiliate of Issuer, any agent of Issuer, any Valid Third Party Entity or any affiliate of a Valid Third Party Entity of (x) any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, (y) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate 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 50% of the market capitalization of Issuer as of the date of such announcement (a “Transformative Transaction”) or (z) the intention to enter into a Merger Event or Tender Offer or a Transformative Transaction, (ii) the public announcement by Issuer of an intention to solicit or enter into, or to explore strategic alternatives or other similar undertaking that may include, a Merger Event or Tender Offer or a Transformative Transaction or (iii) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i) or (ii) of this sentence (including, without limitation, a new announcement, whether or not by the same party, 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), as determined by the Calculation Agent in a commercially reasonable manner. 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,” (A) “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) and (B) |
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“Tender Offer” shall mean such term as defined under Section 12.1(d) of the Equity Definitions (as amended by Section 9(i)(ii) below). |
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Valid Third Party Entity: |
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In respect of any transaction, any third party that has a bona fide intent to enter into or consummate such transaction, as determined by the Calculation Agent (it being understood and agreed that in determining whether such third party has such a bona fide intent, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options relating to the Shares). |
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Nationalization, Insolvency or Delisting: |
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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 Exchange is located in the United States and 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 of the New York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market (or their respective successors), such exchange or quotation system shall thereafter be deemed to be the Exchange. |
|
Additional Disruption Events: |
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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) replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position” and (iii) 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, effectiveness or promulgation of new regulations authorized or mandated by existing statute)”. 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, and any such determination of a Change in Law shall be consistently applied by the Determining Party across transactions similar to the Transaction and for counterparties similar to Counterparty. |
|
Failure to Deliver: |
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Applicable |
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Hedging Disruption: |
|
Applicable; provided that: |
| (i) | Section 12.9(a)(v) of the Equity Definitions is hereby amended by inserting the following two phrases
at the end of such Section: |
“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. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available
on commercially reasonable pricing terms.”; and
| (ii) | 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, if a portion of the Transaction is affected by such Hedging
Disruption (as commercially reasonably determined by the Hedging Party), such portion of the Transaction affected by such Hedging Disruption”. |
Notwithstanding anything
to the contrary herein or in the Equity Definitions, in no event will a Hedging Disruption occur solely due to the deterioration of the
creditworthiness of the Hedging Party relative to other comparable financial institutions.
|
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 (which determination shall be consistently applied by the Determining Party across transactions similar to the Transaction and for counterparties similar to Counterparty). |
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Hedging Party: |
|
For all applicable Additional Disruption Events, Dealer. Following any determination by the Hedging Party hereunder, upon a request by Counterparty, the Hedging Party shall promptly provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request 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 (including any assumptions used in making such determination), it being understood that the Hedging Party shall not be obligated to disclose any proprietary models used by it for such determination or any information that may be proprietary or confidential or subject to an obligation not to disclose such information. All calculations, adjustments and determinations by Dealer acting in its capacity as the Hedging Party shall be made in good faith and in a commercially reasonable manner and assuming that Dealer maintains a commercially reasonable hedge position. |
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Determining Party: |
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For all applicable Extraordinary Events, Dealer; provided that when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same |
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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 the Determining Party were the Calculation Agent. Following any determination or calculation by the Determining Party hereunder, upon a request by Counterparty, the Determining Party shall promptly provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request 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 the Determining Party shall not be obligated to disclose any proprietary models used by it for such determination or calculation or any information that may be proprietary or confidential or subject to an obligation not to disclose such information. All calculations, adjustments and determinations by Dealer acting in its capacity as the Determining Party shall be made in good faith and in a commercially reasonable manner and assuming that Dealer maintains a commercially reasonable hedge position. |
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Non-Reliance: |
|
Applicable |
|
Agreements and Acknowledgments |
|
|
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Regarding Hedging Activities: |
|
Applicable |
|
Additional Acknowledgments: |
|
Applicable |
|
Hedging Adjustments: |
|
For the avoidance of doubt, whenever the Determining Party or Calculation Agent is called upon or permitted to make an adjustment pursuant to the terms of this Confirmation or the Equity Definitions to take into account the effect of an event (other than, for the avoidance of doubt, any adjustment that is required to be made by reference to the Indenture), the Determining Party or Calculation Agent, as the case may be, shall make such adjustment by reference to the effect of such event on Dealer assuming that Dealer maintains a commercially reasonable hedge position. |
4. |
Calculation Agent. |
| Dealer, whose judgments, determinations
and calculations shall be made in good faith and in a commercially reasonable manner; provided that, following the occurrence
and during the continuance of an Event of Default of the type described in Section 5(a)(vii) of the Agreement with respect to which Dealer
is the sole Defaulting Party, if the Calculation Agent fails to timely make any calculation, adjustment or determination required to
be made by the Calculation Agent hereunder and such failure continues for five (5) Exchange Business Days following notice to the Calculation
Agent by Counterparty of such failure, Counterparty shall have the right to designate a nationally recognized third-party dealer in over-the-counter
corporate equity derivatives to act, during the period commencing on the date such Event of Default occurred and ending on the Early
Termination Date |
|
|
with respect to such Event of Default, as the Calculation Agent. Following any determination, adjustment or calculation by the Calculation Agent hereunder, upon a request by Counterparty, the Calculation Agent shall promptly provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such request 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, adjustment or calculation (including any assumptions used in making such determination or calculation), it being understood that the Calculation Agent shall not be obligated to disclose any proprietary models used by it for such determination or calculation or any information that may be proprietary or confidential or subject to an obligation not to disclose such information. |
5.
Account Details.
| (a) | Account for payments to Counterparty: |
|
Bank: |
Bank of America N.A. |
|
ABA#: |
026009593 |
|
SWIFT: |
BOFAUS3N |
|
Account Name: |
Kosmos Energy Limited |
|
Account Number: |
4427921933 |
Account for delivery of Shares to Counterparty:
To be provided by Counterparty.
| (b) | Account for payments to Dealer: |
[_____]
Account for delivery of Shares from Dealer:
[_____]
6.
Offices.
| (a) | The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party. |
| (b) | The Office of Dealer for the Transaction is: [_____] |
7.
Notices.
| (a) | Address for notices or communications to Counterparty: |
Kosmos Energy Ltd.
8176 Park Lane, Suite 500
Dallas, Texas 75231
Attention: General Counsel
| (b) | Address for notices or communications to Dealer: |
[______]
8.
Representations and Warranties of Counterparty.
Counterparty hereby represents and warrants
to Dealer on the date hereof and on and as of the Premium Payment Date that:
| (a) | Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations
in respect of the Transaction; such execution, delivery and performance have been duly authorized by all necessary corporate action on
Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its
valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject,
as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution
hereunder may be limited by federal or state securities laws or public policy relating thereto. |
| (b) | Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations
of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents)
of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority
or agency, or any agreement or instrument filed as an exhibit to Counterparty’s Annual Report on Form 10-K for the year ended December
31, 2023, as updated by any subsequent filings, to which Counterparty or any of its subsidiaries is a party or by which Counterparty or
any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result
in the creation of any lien under, any such agreement or instrument. |
| (c) | No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any
court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have
been obtained or made and such as may be required under the Securities Act or state securities laws. |
| (d) | Counterparty is not and, after consummation of 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. |
| (e) | Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18)
of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18)(C) of the
Commodity Exchange Act). |
| (f) | Counterparty is not, on the date hereof, in possession of any material non-public information with respect
to Counterparty or the Shares. |
| (g) | To Counterparty’s actual knowledge, no state or local (including any non-U.S. jurisdiction’s)
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. |
| (h) | 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; (C)
has consulted with its own legal, regulatory, tax, business, investments, financial and accounting advisors with respect to the Transaction
to the extent that it has deemed necessary; and (D) has total assets of at least USD 50 million. |
| (i) | The assets of Counterparty do not constitute “plan assets” under the Employee Retirement Income
Security Act of 1974, as amended, the Department of Labor Regulations promulgated thereunder or similar law. |
| (j) | 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”)). |
| (k) | Counterparty acknowledges that the Transaction may constitute a purchase of its equity securities or a
capital distribution. Counterparty further acknowledges that, pursuant to the provisions of the Coronavirus Aid, Relief and Economic Security
Act (the “CARES Act”), the Counterparty would be required to agree to certain time-bound restrictions on its ability
to purchase its equity securities or make capital distributions if it receives loans, loan guarantees or direct loans (as that term is
defined in the CARES Act) under section 4003(b) of the CARES Act. Counterparty further acknowledges that it may be required to agree to
certain time-bound restrictions on its ability to purchase its equity securities or make capital distributions if it receives loans, loan
guarantees or direct loans (as that term is defined in the CARES Act) under programs or facilities established by the Board of Governors
of the Federal Reserve System or the U.S. Department of Treasury for the purpose of providing liquidity to the financial system, and may
be required to agree to similar restrictions under programs or facilities established in the future (collectively, “Governmental
Financial Assistance”). Accordingly, Counterparty represents and warrants that it has not applied for, and has no present intention
to apply for, Governmental Financial Assistance under any governmental program or facility that (a) is established under applicable law
(whether in existence as of the Trade Date or subsequently enacted, adopted or amended), including without limitation the CARES Act or
the Federal Reserve Act, as amended, and (b) requires under applicable law (or any regulation, guidance, interpretation or other pronouncement
of a governmental authority with jurisdiction for such program or facility), as a condition of such Governmental Financial Assistance,
that the Counterparty agree, attest, certify or warrant that it has not, as of the date specified in such condition, repurchased, or will
not repurchase, any equity security of Counterparty or that it has not, as of the date specified in such condition, made a capital distribution
or will not make a capital distribution. |
9.
Other Provisions.
| (a) | Opinions. Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Premium
Payment Date, with respect to the matters set forth in Sections 8(a) through (c) of this Confirmation; provided that any such opinion
of counsel may contain customary exceptions and qualifications. Delivery of such opinion to Dealer shall be a condition precedent for
the purpose of Section 2(a)(iii) of the Agreement with respect to each obligation of Dealer under Section 2(a)(i) of the Agreement. |
| (b) | Repurchase Notices. Counterparty shall, on or prior to the date one Scheduled Trading Day
immediately following any date on which Counterparty has effected any repurchase of Shares, promptly give Dealer a written notice of such
repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares as determined
on such day is (i) less than 390.7 million (in the case of the first such notice) or (ii) thereafter more than 57.2 million less
than the number of Shares included in the immediately preceding Repurchase Notice; provided that, with respect to any repurchase
of Shares pursuant to a plan under Rule 10b5-1 under the Exchange Act, Counterparty may elect to satisfy such requirement by promptly
giving Dealer written notice of the entry into such plan, the maximum number of Shares that may be repurchased thereunder and the approximate
dates or periods during which such repurchases may occur (with such maximum deemed repurchased on the date of such notice for purposes
of this Section 9(b)). Counterparty agrees to indemnify and hold harmless Dealer and its affiliates and their respective officers,
directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and
against any and all losses (including losses relating to Dealer’s 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, judgments, liabilities and
reasonable expenses (including reasonable attorney’s fees), joint or several, which an Indemnified |
Person may become subject
to, in each case, as a result of Counterparty’s failure to provide Dealer with a Repurchase Notice on the day and in the manner
specified in this paragraph, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable
legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection
with or defending any of the foregoing. If any suit, action, proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Dealer with
a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly notify Counterparty in writing, and Counterparty,
upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others Counterparty may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related
to such proceeding. Counterparty shall not be liable for any settlement of any proceeding contemplated by this paragraph that is effected
without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to
indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not,
without the prior written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding contemplated
by this paragraph that is in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding on terms reasonably satisfactory to such Indemnified Person. If the indemnification
provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for
in this paragraph (b) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force
and effect regardless of the termination of the Transaction.
| (c) | Regulation M. Counterparty is not on the Trade Date engaged in a distribution, as such term
is used in Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of any securities
of Counterparty, other than a distribution meeting the requirements of the exception set forth in Rules 101(b)(10) and 102(b)(7) of Regulation
M. Counterparty shall not, until the second Scheduled Trading Day immediately following the Effective Date, engage in any such distribution. |
| (d) | No Manipulation. Counterparty is not entering into the Transaction to create actual or apparent
trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate
the price of the Shares (or any security convertible into or exchangeable for the Shares) or otherwise in violation of the Exchange Act. |
| (e) | Transfer or Assignment. |
| (i) | Counterparty shall have the right to transfer or assign its rights and obligations hereunder with respect
to all, but not less than all, of the Options hereunder (such Options, the “Transfer Options”); provided that
such transfer or assignment shall be subject to 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 9(b) or any obligations under Section 9(m) or 9(r) of this Confirmation; |
| (B) | Any Transfer Options shall only be transferred or assigned to a third party that is a United States person
(as defined in the Internal Revenue Code of 1986, as amended (the “Code”)); |
| (C) | Such transfer or assignment shall be effected
on terms, including any reasonable undertakings by such third party (including, but not limited to, an undertaking 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 legal opinions with respect to securities laws and other matters by such third party
and Counterparty, as are requested and reasonably satisfactory to Dealer; |
| (D) | Under the applicable law effective on or as of the date of such transfer and assignment, (1) Dealer will
not, as a result of such transfer and assignment (including, for the avoidance of doubt, after giving effect to any indemnity from the
transferee or assignee to Dealer provided in connection with such transfer or assignment), be required to pay the transferee on any payment
date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount that Dealer would
have been required to pay to Counterparty in the absence of such transfer and assignment, except to the extent that the greater amount
is due to a Change in Tax Law after the date of such transfer or assignment and (2) Dealer will not (including, for the avoidance of doubt,
after giving effect to any indemnity from the transferee or assignee to Dealer provided in connection with such transfer or assignment),
as a result of such transfer and assignment, receive from the transferee on any payment date an amount under Section 2(d)(i)(4) of the
Agreement that is less than the amount that Dealer would have received from Counterparty in the absence of such transfer and assignment,
except to the extent that the lesser amount is due to a Change in Tax Law after the date of such transfer or assignment; |
| (E) | An Event of Default, Potential Event of Default or Termination Event will not occur as a result of such
transfer and assignment; |
| (F) | Counterparty shall cause the transferee to make
such Payee Tax Representations and to provide such tax documentation as may be reasonably requested by Dealer to
permit Dealer to determine that results described in clauses (D)
and (E) will not occur upon or after such transfer and assignment; and |
| (G) | Counterparty shall be responsible for all reasonable costs and expenses, including reasonable counsel
fees, incurred by Dealer in connection with such transfer or assignment. |
| (ii) | Dealer may transfer or assign all or any part of its rights or obligations under the Transaction (A) without
Counterparty’s consent, to any affiliate of Dealer (1) that has a long-term issuer rating that is equal to or better than Dealer’s
credit rating at the time of such transfer or assignment, or (2) whose obligations hereunder will be guaranteed, pursuant to the terms
of a customary guarantee in a form used by Dealer generally for similar transactions, by Dealer or Dealer’s ultimate parent, or
(B) with Counterparty’s consent (such consent not to be unreasonably withheld or delayed), to any other third party with a long-term
issuer rating equal to or better than the lesser of (1) the credit rating of Dealer at the time of the transfer and (2) A- by Standard
and Poor’s Financial Services LLC or its successor (“S&P”), or A3 by Moody’s Investor Service, Inc.
(“Moody’s”) or, if either S&P or Moody’s ceases to rate such debt, at least an equivalent rating or
better by a substitute rating agency mutually agreed by Counterparty and Dealer; provided that, in the case of any transfer or
assignment described in clause (A) or (B) above, under the applicable law effective on or as of the date of such transfer or assignment,
(i) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer or assignment, (ii) such
transfer or assignment will not constitute a “deemed exchange” by Counterparty within the meaning of Section 1001 of the Code,
(iii)(1) Counterparty will not, as a result of such transfer or assignment, be required to pay the transferee or assignee on any payment
date an amount under Section 2(d)(i)(4) of the Agreement greater than the amount that Counterparty would have been required to pay to |
Dealer in the absence
of such transfer or assignment, except to the extent that the greater amount is due to a Change in Tax Law after the date of such transfer
or assignment and (2) Counterparty will not, as a result of such transfer or assignment, receive from the transferee or assignee on any
payment date an amount under Section 2(d)(i)(4) of the Agreement that is less than the amount that Counterparty would have received from
Dealer in the absence of such transfer or assignment, except to the extent that the lesser amount is due to a Change in Tax Law after
the date of such transfer or assignment. If at any time at which (A) the Section 16 Percentage exceeds 9.5%, (B) the Option Equity Percentage
exceeds 17.0%, or (C) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clauses (A),
(B) or (C), an “Excess Ownership Position”), Dealer is unable after using its commercially reasonable efforts to effect
a transfer or assignment of Options to a third party on pricing terms reasonably acceptable to Dealer and within a time period reasonably
acceptable to Dealer such that no Excess Ownership Position exists, then Dealer may designate any Exchange Business Day as an Early Termination
Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination
no Excess Ownership Position exists. In the event that Dealer so designates an Early Termination Date with respect to a portion of the
Transaction, a payment shall be made 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 a Number of Options equal to the number of Options underlying the
Terminated Portion, (2) Counterparty were the sole Affected Party with respect to such partial termination and (3) the Terminated Portion
were the sole Affected Transaction (and, for the avoidance of doubt, the provisions of Section 9(k) shall apply to any amount that
is payable by Dealer to Counterparty pursuant to this sentence as if Counterparty was not the Affected Party). The “Section 16
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 Section 13 of the Exchange Act) of which
Dealer is or may be deemed to be a part 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. The “Option Equity Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of
which is the sum of (1) the product of the Number of Options and the Option Entitlement and (2) the aggregate number of Shares underlying
any other call option transaction sold by Dealer to Counterparty, and (B) the denominator of which is the number of Shares outstanding.
The “Share Amount” as of any day is the number of Shares that Dealer and any person whose ownership position would
be aggregated with that of Dealer (Dealer or any such person, a “Dealer Person”) under any law, rule, regulation, regulatory
order or organizational documents or contracts of Counterparty that are, in each case, 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 under any Applicable Restriction, as determined by Dealer in its reasonable discretion. The “Applicable
Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration
obligations (except for any filings of Form 13F, Schedule 13D or Schedule 13G under the Exchange Act as in effect on the Trade Date) or
other requirements (including obtaining prior approval from any person or entity) of a Dealer Person, or could result in an adverse effect
on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion, minus (B) 1% of
the number of Shares outstanding. Dealer shall cause the transferee or assignee to make the Payee Tax Representations and to provide such
tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that the results described in (ii),
(iii)(1) and (iii)(2) of this paragraph will not occur upon or after the transfer and assignment.
| (iii) | 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. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance. |
| (f) | Staggered Settlement. If upon advice of counsel with respect to applicable legal and regulatory
requirements, including any requirements relating to Dealer’s hedging activities hereunder, Dealer reasonably determines 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 any Settlement Date for the Transaction, Dealer may, by notice to Counterparty on or prior to any Settlement Date (a “Nominal
Settlement Date”), elect to deliver the Shares on two or more dates (each, a “Staggered 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 such Nominal Settlement Date) and the number of Shares that it will deliver on each Staggered Settlement Date; |
| (ii) | the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered
Settlement Dates will equal the number of Shares that Dealer would otherwise be required to deliver on such Nominal Settlement Date; and |
| (iii) | if the Net Share Settlement terms or the Combination Settlement terms set forth above were to apply on
the Nominal Settlement Date, then the Net Share Settlement terms or the Combination Settlement terms, as the case may be, will apply on
each Staggered Settlement Date, except that the Shares otherwise deliverable on such Nominal Settlement Date will be allocated among such
Staggered Settlement Dates as specified by Dealer in the notice referred to in clause (i) above. |
| (g) | [Insert any Dealer Agency Language][Reserved]. |
| (h) | Additional Termination Events. |
| (i) | Notwithstanding anything to the contrary in this Confirmation, upon any Early Conversion in respect of
which a Notice of Conversion that is effective as to Counterparty has been delivered by the relevant converting Holder: |
| (A) | Counterparty shall, within five Scheduled Trading Days of the Conversion Date for such Early Conversion,
provide written notice (an “Early Conversion Notice”) to Dealer specifying the number of Convertible Notes surrendered
for conversion on such Conversion Date (such Convertible Notes, the “Affected Convertible Notes”), and the giving
of such Early Conversion Notice shall constitute an Additional Termination Event as provided in this clause (i); |
| (B) | upon receipt of any such Early Conversion Notice, Dealer shall designate an Exchange Business Day as an
Early Termination Date (which Exchange Business Day shall be no earlier than one Scheduled Trading Day following the Conversion Date for
such Early Conversion) with respect to the portion of the Transaction corresponding to a number of Options (the “Affected Number
of Options”) equal to the lesser of (x) the number of Affected Convertible Notes minus the “Affected Number of
Options” (as defined in the Base Call Option Confirmation), if any, that relate to such Affected Convertible Notes and (y) the Number
of Options as of the Conversion Date for such Early Conversion; |
| (C) | any payment hereunder with respect to such termination shall be calculated pursuant to Section 6 of the
Agreement as if (x) an Early Termination Date had been designated in respect of a Transaction having terms identical to the |
Transaction
and a Number of Options equal to the Affected Number of Options, (y) Counterparty were the sole Affected Party with respect to such Additional
Termination Event and (z) the terminated portion of the Transaction were the sole Affected Transaction; provided
that the amount payable with respect to such termination shall not be greater than (1) the Applicable Percentage, multiplied by
(2) the Affected Number of Options, multiplied by (3) (x) the sum of (i) the amount of cash paid to the “Holder” (as
such term is defined in the Indenture) of an Affected Convertible Note upon conversion of such Affected Convertible Note and (ii) the
number of Shares delivered (if any) to the “Holder” (as such term is defined in the Indenture) of an Affected Convertible
Note upon conversion of such Affected Convertible Note, multiplied by the Applicable Limit Price on the settlement date for the
conversion of such Affected Convertible Note, minus (y) the Synthetic Instrument Adjusted Issue Price determined by the
Calculation Agent based on the date of payment of the amount due with respect to the relevant Affected Number of Options (the “Unwind
Date”). “Synthetic Instrument Adjusted Issue Price” shall mean the amount determined by the Calculation Agent
by reference to the table set forth below (the “Synthetic Instrument AIP Table”). If the relevant Unwind Date is not
listed in the Synthetic Instrument AIP Table, the amount in the preceding sentence shall be determined by the Calculation Agent by reference
to the Synthetic Instrument AIP Table, using a linear interpolation between the lower and higher Synthetic Instrument Adjusted Issue Prices
for the Unwind Dates immediately preceding and immediately following the relevant Unwind Date. For the avoidance of doubt, any payment
pursuant to this paragraph shall be subject to Section 9(k) of this Confirmation.
|
Unwind Date |
Synthetic Instrument Adjusted
Issue Price |
|
March 8, 2024 |
$875.50 |
|
September 15, 2024 |
$884.69 |
|
March 15, 2025 |
$893.78 |
|
September 15, 2025 |
$903.14 |
|
March 15, 2026 |
$912.75 |
|
September 15, 2026 |
$922.64 |
|
March 15, 2027 |
$932.80 |
|
September 15, 2027 |
$943.24 |
|
March 15, 2028 |
$953.97 |
|
September 15, 2028 |
$965.01 |
|
March 15, 2029 |
$976.35 |
|
September 15, 2029 |
$988.01 |
|
March 15, 2030 |
$1,000.00 |
| (D) | for the avoidance of doubt, in
determining the amount payable in respect of such Affected Transaction pursuant to Section
6 of the Agreement, the Calculation Agent shall assume that (x) the relevant Early Conversion
and any conversions, adjustments, agreements, payments, deliveries or acquisitions by or
on behalf of Counterparty leading thereto had not occurred, (y) no adjustments to the “Conversion
Rate” (as defined in the Indenture) have occurred pursuant to any Excluded Provision
and (z) the corresponding Convertible Notes remain outstanding; and |
| (E) | the Transaction shall remain in full force and effect, except that, as of the Conversion Date for such
Early Conversion, the Number of Options shall be reduced by the Affected Number of Options. |
| (ii) | Notwithstanding anything to the contrary in this Confirmation if an event of default with respect to Counterparty
occurs under the terms of the Convertible Notes as set forth in Section 6.01 of the Indenture that results in the Convertible Notes
becoming or being declared due and payable pursuant to the terms of the Indenture, then such acceleration shall constitute an Additional
Termination Event applicable to the Transaction and, with respect to such Additional Termination Event, (A) Counterparty shall be
deemed to be the sole Affected Party, (B) the Transaction shall be the sole Affected Transaction and (C) Dealer shall be the
party entitled to designate an Early Termination Date pursuant to Section 6(b) of the Agreement. |
| (iii) | Within five Scheduled Trading Days following any Repayment Event (as defined below), Counterparty (x)
in the case of a Repayment Event resulting from the repurchase of any Convertible Notes by Counterparty upon the occurrence of a “Fundamental
Change” (as such term is defined in the Indenture), a “Tax Redemption” (as such term is defined in the Indenture) or
an “Optional Redemption” (as such term is defined in the Indenture), shall notify Dealer of such Repayment Event and (y) in
the case of a Repayment Event not described in clause (x) above, may notify Dealer of such Repayment Event, in each case, including the
aggregate principal amount of Convertible Notes subject to such Repayment Event (any such notice, a “Repayment Notice”);
provided that any “Repayment Notice” delivered to Dealer pursuant to the Base Call Option Confirmation shall be deemed
to be a Repayment Notice pursuant to this Confirmation and the terms of such Repayment Notice shall apply, mutatis mutandis, to
this Confirmation. Such Repayment Notice, in the case of a Repayment Event described in clause (y) of the immediately preceding sentence
only, shall contain the representation and warranty that Counterparty is not, on the date thereof, in possession of any material non-public
information with respect to Counterparty or the Shares. The receipt by Dealer from Counterparty of any Repayment Notice shall constitute
an Additional Termination Event as provided in this Section 9(h)(iii). Upon receipt of any such Repayment Notice, Dealer shall designate
an Exchange Business Day following receipt of such Repayment Notice as an Early Termination Date with respect to the portion of the Transaction
corresponding to a number of Options (the “Repayment Options”) equal to the lesser of (A) (x) the aggregate
principal amount of such Convertible Notes specified in such Repayment Notice, divided by USD 1,000, minus (y) the
number of “Repayment 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 the Base Call Option Confirmation will be among
the Repayment Options hereunder or under, and as defined in, the Base Call Option Confirmation, the Convertible Notes specified in such
Repayment Notice shall be allocated first to the Base Call Option Confirmation until all Options thereunder are exercised or terminated),
and (B) the Number of Options as of the date Dealer designates such Early Termination Date and, as of such date, the Number of Options
shall be reduced by the number of Repayment Options. Any payment hereunder with respect to such termination (the “Repayment Unwind
Payment”) 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 a Number of Options equal to the number of Repayment 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; provided that in the event of a Repayment Event resulting from a “Fundamental
Change” (as such term is defined in the Indenture) or in connection with a “Tax Redemption” (as defined in the Indenture)
or an “Optional Redemption” (as such term is defined in the Indenture), the Repayment Unwind Payment shall not be greater
than (x) the number of Repayment Options multiplied by (y) the product of (A) the Applicable Percentage and (B) (x) the amount
paid by Counterparty per Convertible Note in connection with the relevant Repayment Event pursuant to the relevant |
sections of the Indenture
minus (y) the Synthetic Instrument Adjusted Issue Price determined by the Calculation Agent by reference to the Synthetic Instrument
AIP Table based on the date of payment of the relevant amount (the “Repayment Date”) as if such Repayment Date were
the Unwind Date. If the relevant Repayment Date is not listed in the Synthetic Instrument AIP Table, the amount in the preceding sentence
shall be determined by the Calculation Agent by reference to the Synthetic Instrument AIP Table using a linear interpolation between the
lower and higher Synthetic Instrument Adjusted Issue Prices for the Unwind Dates immediately preceding and immediately following the relevant
Repayment Date. For the avoidance of doubt, any payment pursuant to this paragraph shall be subject to Section 9(k) of this Confirmation.
For the avoidance
of doubt, solely for purposes of calculating the amount payable pursuant to Section 6 of the Agreement pursuant to the immediately preceding
sentence, Dealer shall assume that the relevant Repayment Event and any conversions, adjustments, agreements, payments, deliveries or
acquisitions by or on behalf of Counterparty leading thereto had not occurred, no adjustments to the “Conversion Rate” (as
such term is defined in the Indenture) have occurred pursuant to any Excluded Provision and the corresponding Convertible Notes remain
outstanding as if the circumstances related to such Repayment Event had not occurred “Repayment Event” means that (i)
any Convertible Notes are repurchased (whether in connection with or as a result of a fundamental change, howsoever defined, or for any
other reason) by Counterparty or any of its subsidiaries, (ii) any Convertible Notes are delivered to Counterparty or any of its subsidiaries
in exchange for delivery of any property or assets of such party (howsoever described), (iii) any principal of any of the Convertible
Notes is repaid prior to the final maturity date of the Convertible Notes (for any reason other than as a result of an acceleration of
the Convertible Notes that results in an Additional Termination Event pursuant to Section 9(h)(ii)), or (iv) any Convertible Notes are
exchanged by or for the benefit of the “Holders” (as defined in the Indenture) thereof for any other securities of Counterparty
or any of its subsidiaries (or any other property, or any combination thereof) pursuant to any exchange offer or similar transaction.
For the avoidance of doubt, any conversion of Convertible Notes (whether into cash, Shares, “Reference Property” (as defined
in the Indenture) or any combination thereof) pursuant to the terms of the Indenture shall not constitute a Repayment Event.
| (i) | Amendments to Equity Definitions. |
| (i) | Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “a diluting
or concentrative” and replacing them with the words “a material” and adding the phrase “or the Options, as a result
of a corporate event involving the Issuer” at the end of the sentence. |
| (ii) | Section 12.1(d) of the Equity Definitions is hereby amended by replacing “10%” with “25%”
in the third line thereof and by replacing all references to “voting shares” therein with “Shares”. |
| (iii) | Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) inserting “(1)” immediately
following the word “means” in the first line thereof and (2) inserting immediately prior to the semi-colon at the end of subsection
(B) thereof the following words: “or (2) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the
ISDA Master Agreement with respect to that Issuer”. |
| (iv) | Section 12.9(b)(i) of the Equity Definitions is hereby amended by (1) replacing “either party may
elect” with “Dealer may elect” and (2) replacing “notice to the other party” with “notice to Counterparty”
in the first sentence of such section. |
| (j) | No Netting or Set-off. The provisions of Section 2(c) 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 under any other agreement between the parties hereto, by operation of law or otherwise.
| (k) | 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 holders of Shares consists solely of cash,
(ii) an Announcement Event, 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 other than an Event of Default
of the type described in Section 5(a)(iii), (v), (vi), (vii) or (viii) of the Agreement or a Termination Event of the type described in
Section 5(b) of the Agreement, in each case that resulted from an event or events outside Counterparty’s control), and if Dealer
would owe any amount to Counterparty pursuant to Section 6(d)(ii) 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 5:00 p.m. (New York City time) on the date of the Announcement Event, 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 and (b) Counterparty remakes the
representation set forth in Section 8(f) as of the date of such election. |
|
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, equal to the Payment Obligation divided by the Share Termination Unit Price. The Calculation Agent shall 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 to Dealer 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 the purchase price paid in connection with the 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 Share Termination Alternative is applicable to the Transaction. |
| (l) | Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies
that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in
the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided
herein. |
| (m) | Registration. Counterparty hereby agrees that if, in the good faith reasonable judgment
of Dealer, based on the advice of counsel, the Shares (“Hedge Shares”) acquired by Dealer for the purpose of effecting
a commercially reasonable hedge of its obligations pursuant to the Transaction cannot be sold in the public market by Dealer without registration
under the Securities Act, Counterparty shall, at its election, either (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 and enter into an agreement, in form and
substance satisfactory to Dealer, substantially in the form of an underwriting agreement for a registered secondary offering of similar
size; provided, however, that if Dealer, in its 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 paragraph shall apply at the election of Counterparty, (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 similar size, in form and substance satisfactory to Dealer (in which case, the
Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its reasonable judgment, to compensate
Dealer for any commercially reasonable discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private
placement of similar size), or (iii) purchase the Hedge Shares from Dealer at the then-current market price on such Exchange Business
Days, and in the amounts and at such time(s), requested by Dealer. |
| (n) | 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.
| (o) | Right to Extend. Dealer may postpone or add, in whole or in part, any Valid Day or Valid
Days during the Settlement Averaging Period or any other date of valuation, payment or delivery by Dealer, with respect to some or all
of the Options hereunder, if Dealer reasonably determines, in its discretion, based on the advice of counsel in the case of clause (ii)
below, that such action is reasonably necessary or appropriate (i) to preserve Dealer’s commercially reasonable hedging or
hedge unwind activity hereunder in light of existing liquidity conditions or (ii) to enable Dealer to effect purchases of Shares
in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that would, if Dealer were Counterparty or an
affiliated purchaser of Counterparty, be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related
policies and procedures applicable to Dealer; provided that such policies and procedures have been adopted by Dealer in good faith
and are generally applicable in similar situations and applied in a non-discriminatory manner; provided further that no such Valid
Day or other date of valuation, payment or delivery may be postponed or added more than 40 Valid Days after the original Valid Day or
other date of valuation, payment or delivery, as the case may be. |
| (p) | Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is
not intended to convey to Dealer rights against Counterparty with respect to the Transaction that are senior to the claims of common stockholders
of Counterparty in any United States bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall
be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements
with respect to the Transaction; provided, further that nothing herein shall limit or shall be deemed to limit Dealer’s
rights in respect of any transactions other than the Transaction. |
| (q) | Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to
be a “securities contract” and a “swap agreement” as defined in the Bankruptcy Code, and the parties hereto to
be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy
Code, (ii) a party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default
under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code,
and (iii) each payment and delivery of cash, securities or other property hereunder to constitute a “margin payment” or “settlement
payment” and a “transfer” as defined in the Bankruptcy Code. |
| (r) | Notice of Certain Other Events. Counterparty covenants and agrees that: |
| (i) | promptly following the public announcement of the results of any election by the holders of Shares with
respect to the consideration due upon consummation of any Merger Event, Counterparty shall give Dealer written notice of the weighted
average of the types and amounts of consideration received by holders of Shares upon consummation of such Merger Event (the date of such
notification, the “Consideration Notification Date”); provided that in no event shall the Consideration Notification
Date be later than the date on which such Merger Event is consummated; and |
| (ii) | (A) Counterparty shall give Dealer commercially reasonable advance (but in any event at least one Exchange
Business Day prior to the relevant Adjustment Notice Deadline) written notice of the section or sections of the Indenture and, if applicable,
the formula therein, pursuant to which any adjustment will be made to the Convertible Notes in connection with any Potential Adjustment
Event (other than a Potential Adjustment in respect of the Dilution Adjustment Provisions set forth in Section 14.04(b) or Section 14.04(d)
of the Indenture) or Merger Event and (B) promptly following any such adjustment, Counterparty shall give Dealer written notice of the
details of such adjustment. The “Adjustment Notice Deadline” means (i) for any Potential Adjustment in respect
of the Dilution Adjustment Provision set forth in Section 14.04(a) of the Indenture, the relevant “Ex-Dividend Date”
(as such term is defined in the Indenture) or “Effective Date” (as such term is defined in |
the Indenture), as
the case may be, (ii) for any Potential Adjustment in respect of the Dilution Adjustment Provision in the first formula set forth
in Section 14.04(c) of the Indenture, the first “Trading Day” (as such term is defined in the Indenture) of the period
referred to in the definition of “SP0” in such formula, (iii) for any Potential Adjustment in respect of the
Dilution Adjustment Provision in the second formula set forth in Section 14.04(c) of the Indenture, the first “Trading
Day” (as such term is defined in the Indenture) of the “Valuation Period” (as such term is defined in the Indenture),
(iv) for any Potential Adjustment in respect of the Dilution Adjustment Provision set forth in Section 14.04(e) of the Indenture,
the first “Trading Day” (as such term is defined in the Indenture) of the period referred to in the definition of “SP’”
in the formula in such Section, and (v) for any Merger Event, the effective date of such Merger Event (or, if earlier, the first
day of any valuation or similar period in respect of such Merger Event).
| (s) | 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, Hedging Disruption, an Excess Ownership Position, or Illegality (as defined in the Agreement)). |
| (t) | Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges
and agrees that: (A) at any time on and prior to the 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 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. |
| (u) | Early Unwind. In the event the sale of the “Additional Notes” (as defined in
the Purchase Agreement (the “Purchase Agreement”) dated as of March 5, 2024, among Counterparty, the guarantors party
thereto and BofA Securities, Inc., as representative of the Initial Purchasers party thereto (the “Initial Purchasers”))
is not consummated with the Initial Purchasers for any reason, or Counterparty fails to deliver to Dealer opinions of counsel as required
pursuant to Section 9(a), in each case 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. |
| (v) | Payment by Counterparty. In the event that, following payment of the Premium, (i) an Early
Termination Date occurs or is designated with respect to the Transaction as a result of a Termination Event or an Event of Default (other
than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement) and, as a result, Counterparty owes to Dealer an
amount calculated under Section 6(e) of the Agreement, or (ii) Counterparty owes to Dealer, pursuant to Section 12.7 or Section 12.9 of
the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions, such amount shall be deemed to be zero. |
| (w) | Other Adjustments Pursuant to the Equity Definitions. Notwithstanding anything to the contrary
in this Confirmation, solely for the purpose of adjusting the Cap Price, the terms “Merger Event,” “Tender Offer”
and “Potential Adjustment Event” shall each have the meanings assigned to such term in the Equity Definitions (in the case
of the definition of “Tender Offer,” as amended by Section 9(i)(ii) above, and in the case of the definition of “Potential
Adjustment Event”, as amended by Section 9(i)(i) above), and upon the occurrence of a Merger Date, the occurrence of a Tender Offer
Date, or declaration by Counterparty of the terms of any Potential Adjustment Event, respectively, as such terms are defined in the Equity
Definitions, the Calculation Agent shall determine whether such occurrence or declaration, as applicable, has had a material economic
effect on the Transaction and, if so, shall, adjust the Cap Price to preserve the fair value of the Options to Dealer; provided
that (x) solely in the case of a Potential Adjustment Event pursuant Section 11.2(e)(i), (ii)(A) or (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, (y) the
parties agree that Exempted Repurchases shall not be considered Potential Adjustment Events and (z) in no event shall the Cap Price be
less than the Strike Price. “Exempted Repurchase” means any (1) open market Share repurchase at prevailing market prices
(including, without limitation, any discount to average VWAP prices), (2) Share repurchase through a dealer pursuant to accelerated share
repurchases, forward contracts or similar transactions that is entered into at prevailing market prices (including, without limitation,
any discount to average VWAP prices) and in accordance with customary market terms for transactions of such type to repurchase the Shares,
or (3) 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, so long as, in the case
of each of clause (1) and clause (2), such repurchase or transaction would not reduce the number of total Shares outstanding to be less
than 377,202,034 Shares, as determined by Calculation Agent in a commercially reasonable manner and as adjusted by the Calculation Agent
to account for any subdivision or combination with respect to the Shares. |
| (i) | 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 U.S. federal withholding tax imposed or collected pursuant to 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 (a “FATCA Withholding Tax”). 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. |
| (ii) | Tax Documentation. For the purposes
of Sections 4(a)(i) and 4(a)(ii) of the Agreement, Dealer shall provide to Counterparty
a valid U.S. Internal Revenue Service Form [W-9]1, or any successor thereto, and
Counterparty shall provide to Dealer a valid U.S. Internal Revenue Service Form W-9, or any
successor thereto, (i) on or before the date of execution of this Confirmation, (ii) promptly
upon learning that any such tax form previously provided by it has become obsolete or incorrect
and (iii) promptly upon reasonable request of the other party. Additionally, each party
shall, promptly upon request by the other party, provide such other tax forms and documents
reasonably requested by the other party. |
| (iii) | Payor Tax Representations. For the purpose of Section 3(e) of the Agreement, each party makes the
following representation: It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority,
of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under
Section 9(h) of the Agreement or amounts payable hereunder that are considered to be interest for U.S. federal income tax purposes) to
be made by it to the other party under the Agreement. In making this representation, it may |
1 To
be modified for Dealers as appropriate.
rely on (i) the accuracy
of any representations made by the other party pursuant to Section 9(x)(iv) of this Confirmation, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of the Agreement, (iii) the satisfaction of the agreement of the other party contained in the
last sentence of Section 9(x)(iv) of this Confirmation and (iv) the documentation provided by the other party pursuant to Section 9(x)(ii)
of this Confirmation, except that it will not be a breach of this representation where reliance is placed on clause (ii) above and the
other party does not deliver a form or document under Section 4(a)(iii) of the Agreement by reason of material prejudice to its legal
or commercial position.
| (iv) | Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, the parties make the
representations below: |
(A) Counterparty is
a corporation for U.S. federal income tax purposes and is organized under the laws of Delaware. Counterparty is a “U.S. person”
as that term is used in Treasury Regulations Section 1.1441-4(a)(3)(ii) and an exempt recipient as that term is used in Treasury Regulations
Section 1.6049-4(c)(l)(ii).
(B) [Dealer is a
corporation for U.S. federal income tax purposes and is organized under the laws of [the United States]. Dealer is a “U.S. person”
as that term is used in Treasury Regulations Section 1.1441-4(a)(3)(ii) and an exempt recipient as that term is used in Treasury Regulations
Section 1.6049-4(c)(l)(ii).]2
In the event that
either party becomes aware that a representation made under this Section 9(x)(iv) would not be accurate and complete if made at that time,
it shall so notify the other party promptly thereafter.
| (y) | 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
facsimile or 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. |
| (z) | [Conduct Rules. Each of Dealer and Counterparty 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. |
| (aa) | Risk Disclosure Statement.
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”.]3 |
| (bb) | [U.S. Resolution Stay Protocol. The parties acknowledge and 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 the Agreement, and for such purposes the Agreement shall be deemed
a Protocol Covered Agreement, Dealer shall be deemed a Regulated Entity and Counterparty shall be deemed an Adhering Party; (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 the Agreement, and for such purposes the Agreement shall be deemed
a Covered Agreement, Dealer shall be deemed a Covered Entity and Counterparty shall be deemed a Counterparty Entity; or (iii) if clause
(i) and clause (ii) do not apply, the terms of Section 1 and |
2 To be modified for Dealers
as appropriate.
3 Insert if applicable.
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 the Agreement, and for such purposes the Agreement 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 the Agreement, 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 the Agreement 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 “the Agreement” 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 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.]4
| (cc) | [Insert Other Regulatory Boilerplate] |
4 Update as necessary.
Please confirm that the foregoing
correctly sets forth the terms of our agreement by executing this Confirmation and returning it to Dealer.
Very truly yours,
|
[Dealer] |
|
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By: |
|
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Authorized Signatory |
|
Name: |
|
Accepted and confirmed
as of the Trade Date:
Kosmos Energy Ltd. |
|
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By: |
|
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Authorized Signatory |
|
Name: |
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[Signature Page to [Base][Additional]
Capped Call Confirmation]
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