Common use of Repurchase Upon Fundamental Change Clause in Contracts

Repurchase Upon Fundamental Change. Following a Fundamental Change (the date of each such occurrence being the "Fundamental Change Date") prior to the Maturity Date, the Company shall notify the Trustee, and the Trustee shall notify holders of Convertible Notes in writing, of such occurrence and shall make an offer (the "Fundamental Change Offer") to repurchase all Convertible Notes then outstanding at a repurchase price in cash (the "Fundamental Change Payment") equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if the Fundamental Change Payment Date is also an Interest Payment Date, accrued and unpaid interest will be paid to the holders of record of Convertible Notes on the Record Date rather than included in the Fundamental Change Payment), to, but excluding, the Fundamental Change Payment Date (as defined below). Notice of a Fundamental Change shall be mailed by the Trustee to the holders of Convertible Notes as shown on the Register and to beneficial owners as required by law not more than 30 days after the applicable Fundamental Change Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Paying Agent. During the period specified in such notice, holders of Convertible Notes may elect to tender their Convertible Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Payment shall be made by the Company in respect of Convertible Notes properly tendered pursuant to this Section on the day (the "Fundamental Change Payment Date") which shall be the sixtieth day after the date of the notice of the applicable Fundamental Change. The notice, which shall govern the terms of the Fundamental Change Offer, shall include such disclosures as are required by law and shall state: (a) that a Fundamental Change Offer is being made pursuant to this Indenture and that all Convertible Notes will be accepted for payment; (b) a brief description of the event, transaction or transactions that constitute the Fundamental Change; (c) the Fundamental Change Payment for each Convertible Note and the Fundamental Change Payment Date; (d) that any Convertible Note not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof; (e) that, unless the Company defaults on making the Fundamental Change Payment, any Convertible Note accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest on the Fundamental Change Payment Date and no further interest shall accrue on or after such date; (f) that holders electing to have Convertible Notes repurchased pursuant to a Fundamental Change Offer will be required to deliver, no later than the sixtieth day after the date of the notice described in this paragraph, a repurchase notice electing to require the Company to repurchase all or some portion of the Convertible Notes held by such holder, which notice shall state (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder is delivering for purchase which must be $1,000 or an integral multiple thereof and (iii) the Convertible Note certificate number (if any); (g) that holders of Convertible Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Fundamental Change Payment Date, a facsimile transmission or letter setting forth (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder delivered for purchase, (iii) the Convertible Note certificate number (if any) delivered, (iv) a statement that such holder is withdrawing his election to have such Convertible Notes purchased, (v) the principal amount of Convertible Notes being withdrawn, (vi) the Convertible Note certificate number (if any) being withdrawn and (vii) the principal amount of Convertible Notes that remains subject to the Fundamental Change Offer, if any; (h) that holders whose Convertible Notes are repurchased only in part will be issued Convertible Notes equal in principal amount to the unpurchased portion of the Convertible Notes surrendered provided that the unpurchased portion shall be in an authorized denomination; (i) the instructions that holders must follow in order to tender their Convertible Notes; and (j) that in the case of a Fundamental Change Payment Date that is also an Interest Payment Date, the interest payment due on such date shall be paid to the person in whose name the Convertible Note is registered at the close of business on the Record Date immediately preceding such Interest Payment Date. Notwithstanding any other provision of this Indenture to the contrary, if the Fundamental Change Payment Date is on or after the Record Date but prior to the related Interest Payment Date, no payment of interest will be made to the holder of record on the Interest Payment Date with respect to any Note redeemed but rather will be included in the Fundamental Change Payment as described above. On the Fundamental Change Payment Date, the Company shall accept for payment all Convertible Notes or portions thereof properly tendered pursuant to the Fundamental Change Offer. Prior to 10:00 a.m. (local time in The City of New York) on the business day following the Fundamental Change Payment Date, the Company shall deposit with the Paying Agent money sufficient to pay the Fundamental Change Payment with respect to all Convertible Notes or portions thereof so tendered and accepted and deliver or cause to be delivered to the Trustee the Convertible Notes so accepted together with an Officers' Certificate setting forth the aggregate principal amount of Convertible Notes or portions thereof tendered to and accepted for payment by the Company. Promptly following the Fundamental Change Payment Date, the Paying Agent shall mail or deliver the Fundamental Change Payment to the holders of Convertible Notes so accepted and the Trustee shall as soon as reasonably practicable authenticate and mail or cause to be transferred by book entry to such holders a new Convertible Note equal in principal amount to any unpurchased portion of the Convertible Note surrendered, if any; PROVIDED that such new Convertible Notes will be in a principal amount of $1,000 or an integral multiple thereof. Any Convertible Notes not so accepted shall be promptly mailed or delivered by the Company to the holder thereof. In the case of any reclassification, change, consolidation, merger, share exchange, combination or sale or conveyance to which Section 11.06 applies in which the Common Stock of the Company is changed or exchanged into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock of the Company or another person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 90% of the aggregate fair market value of such stock, securities or other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the person formed by such consolidation or resulting from such merger or share exchange or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of Convertible Notes to cause the Company to repurchase Convertible Notes following a Fundamental Change, including the applicable provisions of this Section 3.06 and the definitions of Fundamental Change, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company and Common Stock of the Company (in lieu of the Company and the Common Stock of the Company). There shall be no purchase of any Convertible Notes pursuant to this Section 3.06 if there has occurred (prior to, on or after, as the case may be, the giving, by the holders of such Convertible Notes, of the required Fundamental Change repurchase notice) and is continuing, an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes). The Paying Agent will promptly return to the respective holders any Convertible Notes (x) with respect to which a Fundamental Change repurchase notice has been withdrawn in compliance with this Indenture or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes) in which case upon such return the Fundamental Change repurchase notice with respect thereto shall be deemed to have been withdrawn. The Fundamental Change Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable such holders of Convertible Notes to tender their Convertible Notes.

Repurchase Upon Fundamental Change. Following a Fundamental Change (the date of each such occurrence being the "Fundamental Change Date") prior to the Maturity Date), the Company shall notify the Trustee, and the Trustee shall notify holders of Convertible Subordinated Notes in writing, writing of such occurrence and shall make an offer (the "Fundamental Change Offer") to repurchase all Convertible Subordinated Notes then outstanding at a repurchase price in cash equal to 100% of the Principal Amount thereof, plus accrued and unpaid interest and Registration Default Damages, if any (the "Fundamental Change Payment") equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if the Fundamental Change Payment Date is also an Interest Payment Date, accrued and unpaid interest will be paid to the holders of record of Convertible Notes on the Record Date rather than included in the Fundamental Change Payment), to, but excluding, the Fundamental Change Payment Date (as defined below). Notice of a Fundamental Change shall be mailed by or at the Trustee direction of the Company to the holders of Convertible Subordinated Notes as shown on the Register and to beneficial owners as required of such holders maintained by law the Registrar not more than 30 20 days after the applicable Fundamental Change Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Trustee and the Paying Agent. The Fundamental Change Offer shall remain open until a specified date (the "Fundamental Change Offer Termination Date") which is at least 20 Business Days from the date such notice is mailed. During the period specified in such notice, holders of Convertible Subordinated Notes may elect to tender their Convertible Subordinated Notes in whole or in part in integral multiples of $1,000 of Principal Amount in exchange for cash. Payment shall be made by the Company in respect of Convertible Subordinated Notes properly tendered pursuant to this Section on the day a specified Business Day (the "Fundamental Change Payment Date") which shall be the sixtieth day no later than 60 days after the date of the notice of the applicable Fundamental Change. The notice, which shall govern the terms of the Fundamental Change Offer, shall include such disclosures as are required by law and shall state: (a) that a Fundamental Change Offer is being made pursuant to this Indenture Section 3.10 and that all Convertible Subordinated Notes will be accepted for payment; (b) a brief description of the event, transaction or transactions that constitute the Fundamental Change; (c) the Fundamental Change Payment for each Convertible Note Subordinated Note, the Fundamental Change Offer Termination Date and the Fundamental Change Payment Date; (d) that any Convertible Subordinated Note not properly tendered or accepted for payment will continue to accrue interest (including Contingent Interest, if any) and Registration Default Damages, if applicable, in accordance with the terms thereof; (e) that, unless the Company defaults on making the Fundamental Change Payment, any Convertible Subordinated Note accepted for payment properly tendered pursuant to the Fundamental Change Offer shall cease to accrue interest and Registration Default Damages, if applicable, on the Fundamental Change Payment Date and no further interest (including Contingent Interest, if any) or Registration Default Damages shall accrue on or after such date; (f) that holders electing to have Convertible Subordinated Notes repurchased pursuant to a Fundamental Change Offer will be required to deliver, no later than surrender their Convertible Subordinated Notes to the sixtieth day after Paying Agent at the date of address specified in the notice described in this paragraphprior to 5:00 p.m., a repurchase notice electing to require New York City time, on the Fundamental Change Offer Termination Date and must complete any form letter of transmittal proposed by the Company and acceptable to repurchase all or some portion of the Convertible Notes held by such holder, which notice shall state (i) Trustee and the name of the holder, (ii) the principal amount of Convertible Notes the holder is delivering for purchase which must be $1,000 or an integral multiple thereof and (iii) the Convertible Note certificate number (if any)Paying Agent; (g) that holders of Convertible Subordinated Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Fundamental Change Payment Offer Termination Date, a facsimile transmission or letter setting forth (i) the name of the holder, (ii) the principal amount of Convertible Subordinated Notes the holder delivered for purchase, (iii) the Convertible Subordinated Note certificate number (if any) delivered, (iv) and a statement that such holder is withdrawing his election to have such Convertible Subordinated Notes purchased, (v) the principal amount of Convertible Notes being withdrawn, (vi) the Convertible Note certificate number (if any) being withdrawn and (vii) the principal amount of Convertible Notes that remains subject to the Fundamental Change Offer, if any; (h) that holders whose Convertible Subordinated Notes are repurchased only tendered for repurchase in part will be issued Convertible Subordinated Notes equal in principal amount Principal Amount to the unpurchased portion of the Convertible Subordinated Notes surrendered provided that the unpurchased portion shall be in an authorized denominationsurrendered; (i) the instructions that holders must follow in order to tender their Convertible Subordinated Notes; and (j) that in the case of a Fundamental Change Payment Offer Termination Date that is also an Interest Payment Date, the interest payment (including Contingent Interest, if any) and Registration Default Damages, if any, due on such date shall be paid to the person in whose name the Convertible Subordinated Note is registered at the close of business on the Record Date immediately preceding such Interest Payment Date. Notwithstanding any other provision of this Indenture to the contrary, if the relevant Fundamental Change Payment Date is on or after the Record Date but prior to the related Interest Payment Offer Termination Date, no payment of interest will be made to the holder of record on the Interest Payment Date with respect to any Note redeemed but rather will be included in the Fundamental Change Payment as described above. On the Fundamental Change Payment Offer Termination Date, the Company shall (i) accept for payment all Convertible Subordinated Notes or portions thereof properly tendered pursuant to the Fundamental Change Offer. Prior to 10:00 a.m. , (local time in The City of New Yorkii) on the business day following the Fundamental Change Payment Date, the Company shall deposit with the Paying Agent money sufficient to pay the Fundamental Change Payment with respect to all Convertible Subordinated Notes or portions thereof so tendered and accepted and (iii) deliver or cause to be delivered to the Trustee the Convertible Subordinated Notes so accepted tendered together with an Officers' Certificate setting forth the aggregate principal amount of Convertible Subordinated Notes or portions thereof tendered to and accepted for payment by the Company. Promptly following On the Fundamental Change Payment Date, the Paying Agent shall mail send or deliver the Fundamental Change Payment to the holders of Convertible Subordinated Notes so accepted tendered and the Trustee shall as soon as reasonably practicable promptly authenticate and mail send or cause to be transferred by book entry to such holders a new Convertible Subordinated Note equal in principal amount to any unpurchased portion of the Convertible Subordinated Note surrendered, if any; PROVIDED provided that such new Convertible Subordinate Notes will be in a principal amount Principal Amount of $1,000 or an integral multiple thereof. Any Convertible Subordinated Notes not so accepted properly tendered shall be promptly mailed or delivered by the Company to the holder thereof. In the case of any reclassification, change, consolidation, merger, share exchange, combination or sale or conveyance to which Section 11.06 12.14 applies in which the Common Stock of the Company is changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock of the Company or another person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 9050% of the aggregate fair market value of such stock, securities or other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the person formed by such consolidation or resulting from such merger or share exchange or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of Convertible Subordinated Notes to cause the Company to repurchase Convertible Subordinated Notes following a Fundamental Change, including the applicable provisions of this Section 3.06 3.10 and the definitions of Fundamental Change, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company and Common Stock of the Company (in lieu of the Company and the Common Stock of the Company). There shall be no purchase of any Convertible Notes pursuant to this Section 3.06 if there has occurred (prior to, on or after, as the case may be, the giving, by the holders of such Convertible Notes, of the required Fundamental Change repurchase notice) and is continuing, an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes). The Paying Agent will promptly return to the respective holders any Convertible Notes (x) with respect to which a Fundamental Change repurchase notice has been withdrawn in compliance with this Indenture or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes) in which case upon such return the Fundamental Change repurchase notice with respect thereto shall be deemed to have been withdrawn. The Fundamental Change Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable such holders of Convertible Subordinated Notes to tender their Convertible Subordinated Notes.

Repurchase Upon Fundamental Change. Following a Fundamental Change (the date of each such occurrence being the "“Fundamental Change Date") prior to the Maturity Date”), the Company shall notify the Trustee, and the Trustee shall notify holders of Convertible Notes in writing, writing of such occurrence and shall make an offer (the "“Fundamental Change Offer"”) to repurchase all Convertible Notes then outstanding at a repurchase price in cash (the "“Fundamental Change Payment"”) equal to 100% of the principal amount thereof, plus accrued and unpaid interest (and Additional Interest, if the Fundamental Change Payment Date is also an Interest Payment Date, accrued and unpaid interest will be paid to the holders of record of Convertible Notes on the Record Date rather than included in the Fundamental Change Payment)any, to, but excluding, the Fundamental Change Payment Date (as defined below). In connection with a repurchase upon Fundamental Change, the Company shall comply with all applicable federal and state securities laws, including but not limited to, the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act, and file Schedule TO or any other required schedule under the Exchange Act. Notice of a Fundamental Change shall be mailed by or at the Trustee direction of the Company to the holders of Convertible Notes as shown on the Register and to beneficial owners as required of such holders maintained by law the Registrar not more than 30 20 days after the applicable Fundamental Change Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Trustee and the Paying Agent. The Fundamental Change Offer shall remain open until a specified date (the “Fundamental Change Offer Termination Date”) until the Business Day prior to the Fundamental Change Payment Date or such longer period as required by Federal securities laws. During the period specified in such notice, holders of Convertible Notes may elect to tender their Convertible Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Payment shall be made by the Company in respect of Convertible Notes properly tendered pursuant to this Section 4.06 on the day first Business Day (the "“Fundamental Change Payment Date"”) which shall be the sixtieth day that is 20 Business Days after the date of the notice of the applicable Fundamental ChangeChange or such longer period as required by Federal securities laws. The notice, which shall govern the terms of the Fundamental Change Offer, shall identify the Convertible Notes (including CUSIP numbers) and shall include such disclosures as are required by law and shall state: (a) that a Fundamental Change Offer is being made pursuant to this Indenture Section 4.06 and that all Convertible Notes will be accepted for payment; (b) a brief description of the event, transaction or transactions that constitute the Fundamental Change; (c) the Fundamental Change Payment for each Convertible Note Note, the Fundamental Change Offer Termination Date and the Fundamental Change Payment Date; (d) that any Convertible Note not tendered or accepted for payment will continue to accrue interest and Additional Interest, if applicable, in accordance with the terms thereof; (e) that, unless the Company defaults on making the Fundamental Change Payment, any Convertible Note accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest and Additional Interest, if applicable, on the Fundamental Change Payment Date and no further interest or Additional Interest shall accrue on or after such date; (f) that holders electing to have Convertible Notes repurchased pursuant to a Fundamental Change Offer will be required to deliver, no later than surrender their Convertible Notes to the sixtieth day after Paying Agent at the date of address specified in the notice described in this paragraphprior to 5:00 p.m., a repurchase notice electing New York City time, on the Fundamental Change Offer Termination Date and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent (which letter of transmittal shall require the Company holder to repurchase all or some portion specify (i) if certificated Convertible Notes have been issued to such holder, the certificate numbers of the Convertible Notes held by to be delivered for repurchase, or if the Convertible Notes issued to such holderholder are not in certificated form, which notice shall state (i) the name such information as required to comply with appropriate procedures of the holder, Depositary and (ii) the principal amount of Convertible Notes the holder is delivering for purchase which must Notes, in integral multiples of $1,000, to be $1,000 or an integral multiple thereof and (iii) the Convertible Note certificate number (if anyrepurchased); (g) that holders of Convertible Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on one Business Day prior to the Fundamental Change Payment Offer Termination Date, a facsimile transmission or letter setting forth (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder delivered for purchase, (iii) the Convertible Note certificate number (if any) delivered, (iv) and a statement that such holder is withdrawing his election to have such Convertible Notes purchased, (v) the principal amount of Convertible Notes being withdrawn, (vi) the Convertible Note certificate number (if any) being withdrawn and (vii) the principal amount of Convertible Notes that remains subject to the Fundamental Change Offer, if any; (h) that holders whose Convertible Notes are repurchased only in part will be issued Convertible Notes equal in principal amount to the unpurchased portion of the Convertible Notes surrendered provided that the unpurchased portion shall be in an authorized denominationsurrendered; (i) the instructions that holders must follow in order to tender their Convertible Notes; and; (j) that in the case of a Fundamental Change Payment Date that is also an Interest Payment Date, the interest payment and Additional Interest, if any, due on such date shall be paid to the person Person in whose name the Convertible Note is registered at the close of business on the Record Date immediately preceding such Interest Payment Date. Notwithstanding any other provision of this Indenture to the contrary, if the relevant Fundamental Change Payment Date is on or after Offer Termination Date; and (k) information concerning the Record Date but prior to the related Interest Payment Date, no payment of interest will be made to the holder of record on the Interest Payment Date with respect to any Note redeemed but rather will be included in the Fundamental Change Payment as described aboveapplicable Conversion Rate. On the Fundamental Change Payment Offer Termination Date, the Company shall (i) accept for payment all Convertible Notes or portions thereof properly tendered pursuant to the Fundamental Change Offer. Prior to 10:00 a.m. , (local time in The City of New Yorkii) on the business day following the Fundamental Change Payment Date, the Company shall deposit with the Paying Agent money sufficient to pay the Fundamental Change Payment with respect to all Convertible Notes or portions thereof so tendered and accepted and (iii) deliver or cause to be delivered to the Trustee the Convertible Notes so accepted together with an Officers' Officer’s Certificate setting forth the aggregate principal amount of Convertible Notes or portions thereof tendered to and accepted for payment by the Company. Promptly following On the Fundamental Change Payment Date, the Paying Agent shall mail or deliver the Fundamental Change Payment to the holders of Convertible Notes so accepted and the Trustee shall as soon as reasonably practicable promptly authenticate and mail or cause to be transferred by book book-entry to such holders a new Convertible Note equal in principal amount to any unpurchased portion of the Convertible Note surrendered, if any; PROVIDED provided, however, that such new Convertible Notes will be in a principal amount of $1,000 or an integral multiple thereof. Any Convertible Notes not so accepted shall be promptly mailed or delivered by the Company to the holder thereof. In the case of any reclassification, change, consolidation, merger, share exchange, combination or sale or conveyance to which Section 11.06 12.07 applies in which the Common Stock of the Company is changed or exchanged as a result into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock Common Stock of the Company or another person Person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 9050% of the aggregate fair market value of such stock, securities or other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the person Person formed by such consolidation or resulting from such merger or share exchange or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of Convertible Notes to cause the Company to repurchase Convertible Notes following a Fundamental Change, including the applicable provisions of this Section 3.06 4.06 and the definitions definition of Fundamental Change, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company and Common Stock of the Company (in lieu of the Company and the Common Stock of the Company). There shall be no purchase of any Convertible Notes pursuant to this Section 3.06 if there has occurred (prior to, on or after, as the case may be, the giving, by the holders of such Convertible Notes, of the required Fundamental Change repurchase notice) and is continuing, an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes). The Paying Agent will promptly return to the respective holders any Convertible Notes (x) with respect to which a Fundamental Change repurchase notice has been withdrawn in compliance with this Indenture or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes) in which case upon such return the Fundamental Change repurchase notice with respect thereto shall be deemed to have been withdrawn. The Fundamental Change Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable such holders of Convertible Notes to tender their Convertible Notes.

Repurchase Upon Fundamental Change. Following a Fundamental Change (the date of each such occurrence being the "Fundamental Change Date") prior to the Maturity Date, the Company shall notify the Trustee, and the Trustee shall notify holders of Convertible Exchangeable Notes in writing, of such occurrence and shall make an offer (the "Fundamental Change Offer") to repurchase all Convertible Exchangeable Notes then outstanding at a repurchase price in cash (the "Fundamental Change Payment") equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any (if the Fundamental Change Payment Date is also an Interest Payment Date, accrued and unpaid interest and Liquidated Damages, if any, will be paid to the holders holder of record of Convertible Notes the Note on the Record Date rather than included in the Fundamental Change Payment), to, but excluding, the Fundamental Change Payment Date (as defined below). Notice of a Fundamental Change shall be mailed by the Trustee to the holders of Convertible Exchangeable Notes as shown on the Register and to beneficial owners as required by law not more than 30 days after the applicable Fundamental Change Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Paying Agent. During the period specified in such notice, holders of Convertible Exchangeable Notes may elect to tender their Convertible Exchangeable Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Payment shall be made by the Company in respect of Convertible Exchangeable Notes properly tendered pursuant to this Section on or before the day (the "Fundamental Change Payment Date") which shall be the sixtieth day after the date of the notice of the applicable Fundamental Change. The notice, which shall govern the terms of the Fundamental Change Offer, shall include such disclosures as are required by law and shall state: (a) that a Fundamental Change Offer is being made pursuant to this Indenture Section 4.6 and that all Convertible Exchangeable Notes will be accepted for payment; (b) a brief description of the event, transaction or transactions that constitute the Fundamental Change; (c) the Fundamental Change Payment for each Convertible Exchangeable Note and the Fundamental Change Payment Date; (d) that any Convertible Exchangeable Note not tendered or accepted for payment will continue to accrue interest and Liquidated Damages, if applicable, in accordance with the terms thereof; (e) that, unless the Company defaults on making the Fundamental Change Payment, any Convertible Exchangeable Note accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest and Liquidated Damages, if applicable, on the Fundamental Change Payment Date and no further interest or Liquidated Damages shall accrue on or after such date; (f) that holders electing to have Convertible Exchangeable Notes repurchased pursuant to a Fundamental Change Offer will be required to deliver, no later than the sixtieth day after the date of the notice described in this paragraph, a repurchase notice electing to require the Company to repurchase all or some portion of the Convertible Exchangeable Notes held by such holder, which notice shall state (i) the name of the holder, (ii) the principal amount of Convertible Exchangeable Notes the holder is delivering for purchase which must be $1,000 or an integral multiple thereof and (iii) the Convertible Exchangeable Note certificate number (if any); (g) that holders of Convertible Exchangeable Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Fundamental Change Payment Date, a facsimile transmission or letter setting forth (i) the name of the holder, (ii) the principal amount of Convertible Exchangeable Notes the holder delivered for purchase, (iii) the Convertible Exchangeable Note certificate number (if any) delivered, (iv) a statement that such holder is withdrawing his election to have such Convertible Exchangeable Notes purchased, (v) the principal amount of Convertible Exchangeable Notes being withdrawn, (vi) the Convertible Exchangeable Note certificate number (if any) being withdrawn and (vii) the principal amount of Convertible Exchangeable Notes that remains subject to the Fundamental Change Offer, if any; (h) that holders whose Convertible Exchangeable Notes are repurchased only in part will be issued Convertible Exchangeable Notes equal in principal amount to the unpurchased portion of the Convertible Exchangeable Notes surrendered provided that the unpurchased portion shall be in an authorized denomination; (i) the instructions that holders must follow in order to tender their Convertible Exchangeable Notes; and (j) that in the case of a Fundamental Change Payment Date that is also an Interest Payment Date, the interest payment and Liquidated Damages, if any, due on such date shall be paid to the person in whose name the Convertible Exchangeable Note is registered at the close of business on the Record Date immediately preceding such Interest Payment Date. Notwithstanding any other provision of this Indenture to the contrary, if the Fundamental Change Payment Date is on or after the Record Date but prior to the related Interest Payment Date, no payment of interest will be made to the holder of record on the Interest Payment Date with respect to any Note redeemed but rather will be included in the Fundamental Change Payment as described above. On the Fundamental Change Payment Date, the Company shall accept for payment all Convertible Exchangeable Notes or portions thereof properly tendered pursuant to the Fundamental Change Offer. Prior to 10:00 a.m. (local time in The City of New York) on the business day following the Fundamental Change Payment Date, the Company shall deposit with the Paying Agent money sufficient to pay the Fundamental Change Payment with respect to all Convertible Exchangeable Notes or portions thereof so tendered and accepted and deliver or cause to be delivered to the Trustee the Convertible Exchangeable Notes so accepted together with an Officers' Certificate setting forth the aggregate principal amount of Convertible Exchangeable Notes or portions thereof tendered to and accepted for payment by the Company. Promptly following the Fundamental Change Payment Date, the Paying Agent shall mail or deliver the Fundamental Change Payment to the holders of Convertible Exchangeable Notes so accepted and the Trustee shall as soon as reasonably practicable authenticate and mail or cause to be transferred by book entry to such holders a new Convertible Exchangeable Note equal in principal amount to any unpurchased portion of the Convertible Exchangeable Note surrendered, if any; PROVIDED provided that such new Convertible Exchangeable Notes will be in a principal amount of $1,000 or an integral multiple thereof. Any Convertible Exchangeable Notes not so accepted shall be promptly mailed or delivered by the Company to the holder thereof. In the case of any reclassification, change, consolidation, merger, share exchange, combination or sale or conveyance to which Section 11.06 12.6 applies in which the Common Stock of the Company Navistar is changed or exchanged into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock of the Company Navistar or another person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-over- the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 90% of the aggregate fair market value of such stock, securities or other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the person formed by such consolidation or resulting from such merger or share exchange or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of Convertible Exchangeable Notes to cause the Company to repurchase Convertible Exchangeable Notes following a Fundamental Change, including the applicable provisions of this Section 3.06 4.6 and the definitions of Fundamental Change, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company Navistar and Common Stock of the Company Navistar (in lieu of the Company Navistar and the Common Stock of the CompanyNavistar). There shall be no purchase of any Convertible Exchangeable Notes pursuant to this Section 3.06 4.6 if there has occurred (prior to, on or after, as the case may be, the giving, by the holders of such Convertible Exchangeable Notes, of the required Fundamental Change repurchase notice) and is continuing, an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Exchangeable Notes). The Paying Agent will promptly return to the respective holders any Convertible Exchangeable Notes (x) with respect to which a Fundamental Change repurchase notice has been withdrawn in compliance with this Indenture or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Exchangeable Notes) in which case upon such return the Fundamental Change repurchase notice with respect thereto shall be deemed to have been withdrawn. The Fundamental Change Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable such holders of Convertible Exchangeable Notes to tender their Convertible Exchangeable Notes.

Repurchase Upon Fundamental Change. Following a Fundamental Change (the date of each such occurrence being the "Fundamental Change Date") prior to the Maturity Date, the Company shall notify the Trustee, and the Trustee shall notify holders of Convertible Notes in writing, writing of such occurrence and shall make an offer (the "Fundamental Change Offer") to repurchase all Convertible Notes then outstanding at a repurchase price in cash (the "Fundamental Change Payment") equal to 100% of the principal amount thereof, plus accrued and unpaid interest (if the Fundamental Change Payment Date is also an Interest Payment Date, accrued and unpaid interest will be paid to the holders of record of Convertible Notes on the Record Date rather than included in the Fundamental Change Payment), up to, but excludingnot including, the Fundamental Change Payment Date (as defined below). Notice of a Fundamental Change shall be mailed by or at the Trustee direction of the Company to the holders of Convertible Notes as shown on the Register and to beneficial owners as required by law not more than 30 days after the applicable Fundamental Change Date at the addresses as shown on the Register of holders maintained by the Registrar, with a copy to the Trustee and the Paying Agent. During the period specified in such notice, holders of Convertible Notes may elect to tender their Convertible Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Payment of the Fundamental Change Payment shall be made by the Company in respect of Convertible Notes properly tendered pursuant to this Section 4.6 on the day (the "Fundamental Change Payment Date") which shall be the sixtieth business day succeeding the 60th day after the date of the notice of the applicable Fundamental Change. The notice, which shall govern the terms of the Fundamental Change Offer, shall include such disclosures as are required by law and shall state: (a) that a Fundamental Change Offer is being made pursuant to this Indenture Section 4.6 and that all Convertible Notes will be accepted for payment; (b) a brief description of the event, transaction or transactions that constitute the Fundamental Change; (c) the Fundamental Change Payment for each Convertible Note and the Fundamental Change Payment Date; (d) that any Convertible Note not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof; (e) that, unless the Company defaults on making the Fundamental Change Payment, any Convertible Note accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest on the Fundamental Change Payment Date and no further interest shall accrue on or after such date; (f) that holders electing to have Convertible Notes repurchased pursuant to a Fundamental Change Offer will be required to deliver, no not later than 5:00 p.m., New York City time, on the sixtieth 60th day after the date of the Company's notice described in this paragraph, a repurchase notice electing to require the Company to repurchase all or some portion of the Convertible Notes held by such holder, which notice shall state (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder is delivering for purchase purchase, which must be $1,000 or an integral multiple multiples thereof and (iii) the Convertible Note certificate number (if any); (g) that holders of Convertible Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the business day immediately preceding the Fundamental Change Payment Date, a facsimile transmission or letter setting forth (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder delivered for purchase, (iii) the Convertible Note certificate number (if any) delivered, (iv) a statement that such holder is withdrawing his election to have such Convertible Notes purchased, (v) the principal amount of Convertible Notes being withdrawn, (vi) the Convertible Note certificate number (if any) being withdrawn and (vii) the principal amount of Convertible Notes that remains subject to the Fundamental Change Offer, if any; (h) that holders whose Convertible Notes are repurchased only in part will be issued Convertible Notes equal in principal amount to the unpurchased portion of the Convertible Notes surrendered provided that the unpurchased portion shall be in an authorized denomination; (i) the instructions that holders must follow in order to tender their Convertible Notes; and (j) that in the case of a Fundamental Change Payment Date that is also an Interest Payment Date, the interest payment due on such date shall be paid to the person in whose name the Convertible Note is registered at the close of business on the relevant Regular Record Date immediately preceding such Interest Payment Date. Notwithstanding any other provision of this Indenture to the contrary, if the Fundamental Change Payment Date is on or after the Record Date but prior to the related Interest Payment Date, no payment of interest will be made to the holder of record on the Interest Payment Date with respect to any Note redeemed but rather will be included in the Fundamental Change Payment as described above. On the Fundamental Change Payment Date, the Company shall accept for payment all Convertible Notes or portions thereof properly validly tendered and not validly withdrawn pursuant to the Fundamental Change Offer. Prior to On or before 10:00 a.m. (local time in The a.m., New York City of New York) time, on the business day following the Fundamental Change Payment Date, the Company shall deposit with the Paying Agent money sufficient to pay the Fundamental Change Payment with respect to all Convertible Notes or portions thereof so tendered and accepted accepted, and deliver or cause to be delivered to the Trustee the Convertible Notes so accepted together with an Officers' Certificate setting forth the aggregate principal amount of Convertible Notes or portions thereof tendered to and accepted for payment by the Company. Promptly following the later of (i) the Fundamental Change Payment DateDate and (ii) the time of book-entry transfer or physical delivery of Notes by a holder, the Paying Agent shall mail or deliver the Fundamental Change Payment to the holders such holder of Convertible Notes so accepted and the Trustee shall shall, as soon as reasonably practicable practicable, authenticate and mail or cause to be transferred by book book-entry to such holders holder a new Convertible Note equal in principal amount to any unpurchased portion of the Convertible Note surrendered, if any; PROVIDED provided, that such holder shall have delivered to the Paying Agent, by book-entry transfer or physical delivery, the Notes, together with necessary endorsements; provided, further, that such new Convertible Notes will be in a principal amount of $1,000 or an integral multiple multiples thereof. Any Convertible Notes not so accepted shall be promptly mailed or delivered by the Company to the holder thereof. In the case None of any reclassification, change, consolidation, merger, share exchange, combination or sale or conveyance to which Section 11.06 applies in which the Common Stock of the Company is changed or exchanged into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock of the Company or another person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 90% of the aggregate fair market value of such stock, securities or other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the person formed by such consolidation or resulting from such merger or share exchange or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture Section 4.6 relating to the right of holders of Convertible Notes to cause the Company Company's obligation to repurchase Convertible the Notes following in the event of a Fundamental ChangeChange is waivable by the Company's Board of Directors. In addition, including the applicable provisions of except as described in Section 12.6, this Section 3.06 and 4.6 may not be amended without the definitions consent of Fundamental Change, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company and Common Stock a majority of the Company (in lieu principal amount of the Company and Notes as well as the Common Stock consent of the Company)holder of each outstanding Note. There shall be no purchase of any Convertible Notes pursuant to this Section 3.06 4.6 if there has occurred (prior to, on or after, as the case may be, the giving, by the holders of such Convertible Notes, of the required Fundamental Change repurchase notice) and is continuing, an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes). The Paying Agent will promptly return to the respective holders any Convertible Notes (x) with respect to which a Fundamental Change repurchase notice has been withdrawn in compliance with this Indenture or (y) held by it during the continuance of an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes) in which case upon such return the Fundamental Change repurchase notice with respect thereto shall be deemed to have been withdrawn. The Fundamental Change Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable such holders of Convertible Notes to tender their Convertible Notes.

Repurchase Upon Fundamental Change. Following Upon the occurrence of a Fundamental Change Change, each Holder shall have the right, at such Holder’s option, subject to the terms and conditions of this Article 3, to require the Company to repurchase for cash all or any portion of such Holder’s Notes in integral multiples of $1,000 principal amount at a price (the date of each such occurrence being the "“Fundamental Change Date") prior to the Maturity Date, the Company shall notify the Trustee, and the Trustee shall notify holders of Convertible Notes in writing, of such occurrence and shall make an offer (the "Fundamental Change Offer") to repurchase all Convertible Notes then outstanding at a repurchase price in cash (the "Fundamental Change Payment"Repurchase Price”) equal to 100% of the principal amount thereofof the Notes to be repurchased, plus accrued and unpaid interest (including Additional Interest, if the Fundamental Change Payment Date is also an Interest Payment Date, accrued and unpaid interest will be paid to the holders of record of Convertible Notes on the Record Date rather than included in the Fundamental Change Payment), any) to, but excluding, the Fundamental Change Repurchase Date; provided that if the Fundamental Change Repurchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which it relates, the interest accrued to such Interest Payment Date will be paid to Holders of the Notes as of the preceding Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to the principal amount of Notes subject to repurchase and shall not include any accrued and unpaid interest (as defined belowincluding Additional Interest, if any). Notice Upon a valid exercise of such an option, the Company shall be required to repurchase the Notes on a date selected by the Company (the “Fundamental Change Repurchase Date”), which shall be no earlier than 20 days or later than 35 days after the date on which the Company mails the notice contemplated by this Section 3.01, subject to satisfaction by or on behalf of the Holder of the requirements set forth in Section 3.01(c). Within 10 Trading Days after the effective date of a Fundamental Change, and, with respect to a Fundamental Change described in clause (ii) of the definition thereof, at least 10 Trading Days prior to the anticipated effective date of such Fundamental Change, the Company shall be mailed mail a written notice of the Fundamental Change by first class mail (or send pursuant to Applicable Procedures) to the Trustee and to each Holder at their addresses shown in the holders register of Convertible Notes as shown on the Register Registrar (and to beneficial owners as required by law not more than 30 days after the applicable law). The notice shall include a form of written notice (a “Fundamental Change Date at the addresses as shown on the Register of holders maintained Repurchase Notice”) to be completed by the Registrar, with a copy to the Paying Agent. During the period specified in such notice, holders of Convertible Notes may elect to tender their Convertible Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Payment shall be made by the Company in respect of Convertible Notes properly tendered pursuant to this Section on the day (the "Fundamental Change Payment Date") which shall be the sixtieth day after the date of the notice of the applicable Fundamental Change. The notice, which shall govern the terms of the Fundamental Change Offer, shall include such disclosures as are required by law Noteholder and shall state: (a1) that a Fundamental Change Offer is being made pursuant to this Indenture and that all Convertible Notes will be accepted for payment; (b) a brief description of the event, transaction or transactions that constitute the events causing such Fundamental Change; (c2) the date of such Fundamental Change; (3) the date by which the Fundamental Change Repurchase Notice pursuant to this Section 3.01(a) must be given; (4) the last date on which the repurchase right may be exercised; (5) the Fundamental Change Payment for each Convertible Note and Repurchase Price; (6) the Fundamental Change Payment Repurchase Date; (d7) that any Convertible Note not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereofname and address of the Paying Agent and the Conversion Agent; (e) that, unless 8) the Company defaults on making the Fundamental Change Payment, then current Applicable Conversion Rate and any Convertible Note accepted for payment pursuant to the Fundamental Change Offer shall cease to accrue interest on the Fundamental Change Payment Date and no further interest shall accrue on or after such dateadjustments thereto; (f9) that holders electing to have Convertible Notes repurchased pursuant to a Fundamental Change Offer will be required to deliver, no later than the sixtieth day after the date of the notice described in this paragraph, a repurchase notice electing to require the Company to repurchase all or some portion of the Convertible Notes held by such holder, which notice shall state (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder is delivering for purchase which must be $1,000 or an integral multiple thereof and (iii) the Convertible Note certificate number (if any); (g) that holders of Convertible Notes will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the Fundamental Change Payment Date, a facsimile transmission or letter setting forth (i) the name of the holder, (ii) the principal amount of Convertible Notes the holder delivered for purchase, (iii) the Convertible Note certificate number (if any) delivered, (iv) a statement that such holder is withdrawing his election to have such Convertible Notes purchased, (v) the principal amount of Convertible Notes being withdrawn, (vi) the Convertible Note certificate number (if any) being withdrawn and (vii) the principal amount of Convertible Notes that remains subject to the Fundamental Change Offer, if any; (h) that holders whose Convertible Notes are repurchased only in part will be issued Convertible Notes equal in principal amount to the unpurchased portion of the Convertible Notes surrendered provided that the unpurchased portion shall be in an authorized denomination; (i) the instructions that holders must follow in order to tender their Convertible Notes; and (j) that in the case of a Fundamental Change Payment Date that is also an Interest Payment Date, the interest payment due on such date shall be paid to the person in whose name the Convertible Note is registered at the close of business on the Record Date immediately preceding such Interest Payment Date. Notwithstanding any other provision of this Indenture to the contrary, if the Fundamental Change Payment Date is on or after the Record Date but prior to the related Interest Payment Date, no payment of interest will be made to the holder of record on the Interest Payment Date with respect to any Note redeemed but rather will be included in the Fundamental Change Payment as described above. On the Fundamental Change Payment Date, the Company shall accept for payment all Convertible Notes or portions thereof properly tendered pursuant to the Fundamental Change Offer. Prior to 10:00 a.m. (local time in The City of New York) on the business day following the Fundamental Change Payment Date, the Company shall deposit with the Paying Agent money sufficient to pay the Fundamental Change Payment with respect to all Convertible Notes or portions thereof so tendered and accepted and deliver or cause to be delivered to the Trustee the Convertible Notes so accepted together with an Officers' Certificate setting forth the aggregate principal amount of Convertible Notes or portions thereof tendered to and accepted for payment by the Company. Promptly following the Fundamental Change Payment Date, the Paying Agent shall mail or deliver the Fundamental Change Payment to the holders of Convertible Notes so accepted and the Trustee shall as soon as reasonably practicable authenticate and mail or cause to be transferred by book entry to such holders a new Convertible Note equal in principal amount to any unpurchased portion of the Convertible Note surrendered, if any; PROVIDED that such new Convertible Notes will be in a principal amount of $1,000 or an integral multiple thereof. Any Convertible Notes not so accepted shall be promptly mailed or delivered by the Company to the holder thereof. In the case of any reclassification, change, consolidation, merger, share exchange, combination or sale or conveyance to which Section 11.06 applies in which the Common Stock of the Company is changed or exchanged into the right to receive stock, securities or other property or assets (including cash) which includes shares of common stock of the Company or another person that are, or upon issuance will be, traded on a United States national securities exchange or approved for trading on an established automated over-the-counter trading market in the United States and such shares constitute at the time such change or exchange becomes effective in excess of 90% of the aggregate fair market value of such stock, securities or other property and assets (including cash) (as determined by the Company, which determination shall be conclusive and binding), then the person formed by such consolidation or resulting from such merger or share exchange or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture (which shall comply with the TIA as in force at the date of execution of such supplemental indenture) modifying the provisions of this Indenture relating to the right of holders of Convertible Notes to cause the Company to repurchase Convertible Notes following a Fundamental Change, including the applicable provisions of this Section 3.06 and the definitions of Fundamental Change, Change of Control and Termination of Trading, as appropriate, as determined in good faith by the Company (which determination shall be conclusive and binding), to make such provision apply to such common stock and the issuer thereof if different from the Company and Common Stock of the Company (in lieu of the Company and the Common Stock of the Company). There shall be no purchase of any Convertible Notes pursuant to this Section 3.06 if there has occurred (prior to, on or after, as the case may be, the giving, by the holders of such Convertible Notes, of the required Fundamental Change repurchase notice) and is continuing, an Event of Default (other than a default in the payment of the Fundamental Change Payment with respect to such Convertible Notes). The Paying Agent will promptly return to the respective holders any Convertible Notes (x) with respect to which a Fundamental Change repurchase notice Repurchase Notice is given by the Holder may be converted pursuant to Article 10 hereof only if the Fundamental Change Repurchase Notice has been withdrawn in compliance accordance with the terms of this Indenture or Indenture; and (y10) held by it during the continuance of an Event of Default (other than procedures a default in the payment of the Fundamental Change Payment with respect Holder must follow to such Convertible Notes) in which case upon such return the Fundamental Change repurchase notice with respect thereto shall be deemed to have been withdrawn. The Fundamental Change Offer shall be made by the Company in compliance with all applicable provisions of the Exchange Act, and all applicable tender offer rules promulgated thereunder, to the extent such laws and regulations are then applicable and shall include all instructions and materials that the Company shall reasonably deem necessary to enable such holders of Convertible Notes to tender their Convertible Notesexercise rights under this Section 3.01(a).