Confidential Agreement and General Release of Claims - Brocade Communications Systems Inc. and Bruce J. Bergman
CONFIDENTIAL AGREEMENT
AND GENERAL RELEASE OF CLAIMS
THIS CONFIDENTIAL AGREEMENT AND GENERAL RELEASE OF CLAIMS (the
"AGREEMENT") effective as of September 23, 1998 is between Bruce J. Bergman
("EMPLOYEE"), The Bergman Family Trust (the "TRUST") and Brocade Communications
Systems, Inc. ("BROCADE"), a California corporation. As used in this Agreement,
Brocade refers to Brocade Communications Systems, Inc. and all parents,
subsidiaries, divisions, predecessors, and successors of Brocade Communications
Systems, Inc.
RECITALS
WHEREAS, Employee and Brocade entered into that certain confidential
Agreement and General Release dated as of April 25 1998 (the "PREVIOUS
AGREEMENT") setting forth certain rights and obligations of each of the parties
arising both prior to and following the date EMPLOYEE's successor commenced
employment as President and Chief Executive Officer with brocade (the
"TERMINATION DATE"), which date was July 13, 1998;
WHEREAS, Employee originally acquired 773,528 shares of Brocade's Common
Stock (after giving effect to all stock splits through the date hereof) (the
"SHARES") pursuant to a Restricted Stock Purchase Agreement dated June 5, 1996
("PURCHASE AGREEMENT"), and EMPLOYEE transferred such shares to the Trust on
March 11, 1997; and
WHEREAS, the parties wish to amend and restate the Previous Agreement so
as to clarify the post-Termination Date rights and obligations of each party,
including but not limited to (i) the rights of EMPLOYEE, with respect to certain
payments, and the Trust with respect to the Shares, (ii) the completion date of
EMPLOYEE's employment, directorship and consultancy activities with Brocade and
(iii) the scope of EMPLOYEE's agreement not to compete with Brocade;
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. EMPLOYMENT TERMINATION. The parties agree and confirm that EMPLOYEE's
employment as President and Chief Executive Officer of Brocade terminated
effective on the Termination Date. EMPLOYEE agrees that his service as a member
of Brocade's Board of Directors, and as a consultant to Brocade, shall cease
effective as of the date of this Agreement.
2. PRETERMINATION OBLIGATIONS. The parties agree and confirm that
EMPLOYEE has received his then effective base salary and all other compensation
and benefits accrued through the Termination Date (less applicable withholding).
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3. OBLIGATIONS OF BROCADE.
a. In exchange for entering into this Agreement, subject to
EMPLOYEE's compliance with Sections 5(c) and 5(d) hereof during the Transition
Period, Brocade agrees to provide EMPLOYEE with the following benefits during
the one (1) year period following the Termination Date (the "TRANSITION
PERIOD"):
(1) Brocade will pay EMPLOYEE his base salary in effect on
the Termination Date (less applicable withholding) in accordance with Brocade's
normal payroll practices. EMPLOYEE shall not participate in Brocade's bonus
plans or continue to accrue vacation or sick time during the Transition Period.
(2) Brocade will provide EMPLOYEE with all existing
employee health benefit insurance coverage during the Transition Period.
Thereafter, EMPLOYEE will be eligible to purchase independently the identical
healthcare insurance coverage programs as required by C.O.B.R.A. (Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended).
b. EMPLOYEE and Trust each understand and acknowledge that
neither the EMPLOYEE nor the Trust will be entitled to any benefits from Brocade
other than those expressly set forth in this Section 3.
c. Subject to EMPLOYEE's compliance with Sections 5(c) and
Section 5(d) hereof during the Transition Period, the benefits provided under
this Section 3 shall be payable for the Transition Period even if EMPLOYEE dies
prior to the end of the Transition Period.
4. STATUS OF PRE-EXISTING AGREEMENTS. In exchange for entering into the
Agreement, Brocade, Employee and Trust agree as follows with respect to the
Shares:
a. The Shares continue to be subject to (1) that certain Fourth
Amended and Restated Right of First Refusal and CoSale Agreement dated as of
December 3, 1997 between Brocade and the parties thereto (the "COSALE
AGREEMENT"), (2) the Fourth Amended and Restated Voting Agreement dated as of
December 3, 1997, among Brocade and the investors named therein (the "VOTING
AGREEMENT"), and (3) the Purchase Agreement.
b. Section 5 of the Purchase Agreement is hereby amended to read
as set forth on ADDENDUM A hereto.
5. OBLIGATIONS OF EMPLOYEE. In exchange for the benefits described in
Section 3, EMPLOYEE and Trust agree to the following:
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a. EMPLOYEE agrees to promptly provide Brocade with any available
information relating to work previously performed by EMPLOYEE for Brocade upon
reasonable notice and request from Brocade during the Transition Period.
b. EMPLOYEE will continue to be bound by and comply with the
terms of that certain Employee Invention Assignment and Confidentiality
Agreement ("CONFIDENTIALITY AGREEMENT") effective June 24, 1996, a copy of which
is attached to this Agreement. EMPLOYEE will return all Brocade property (unless
otherwise agreed in writing) and all confidential and proprietary information in
EMPLOYEE's possession to Brocade within five (5) business days of execution of
this Agreement, provided, however, EMPLOYEE may retain the computer and cell
phone provided by Brocade to EMPLOYEE.
c. EMPLOYEE will not solicit, or initiate any solicitation of any
Brocade employee to leave his/her employment with Brocade to commence a
relationship with EMPLOYEE or any other employer for a period commencing on the
Termination Date and ending one year from the end of the Transition Period.
d. EMPLOYEE during the Transition Period will not (i) accept
employment (full or part time) with, or consult with any business that competes
with Brocade or (ii) engage in activities or behavior which is inconsistent or
conflicts with or is contrary to the responsibilities or duties of a Director of
Brocade (as though EMPLOYEE was in fact a Director of Brocade), ("RESTRICTED
ACTIVITIES"), including such activities as being a Director of a competitor, or
significant customer or partner of Brocade, being an employee or consultant of a
significant customer or partner of Brocade or owning or having the right to own
in excess of 2-1/2% of the outstanding securities of a competitor or significant
customer or partner of Brocade, and consistent with the duties of a director
EMPLOYEE shall raise for discussion with the Chairman of Brocade's Board of
Directors any potential Restricted Activities prior to engaging in such
activities.
6. RELEASE.
a. GENERAL
(1) Subject to Section 6(a)(2) below EMPLOYEE, Trust and
Brocade, on behalf of themselves and their respective heirs, family members,
executors, beneficiaries, investors, employees, officers, directors, agents,
attorneys, legal successors, and assigns, hereby fully and forever release each
other and their respective heirs, family members, executors, beneficiaries,
shareholders, from and agree not to sue concerning, any and all claims, actions,
obligations, duties, causes of action, whether now known or unknown, suspected
or unsuspected, that either of them may possess based upon or arising out of any
matter, cause, fact, thing, act, or omission whatsoever occurring or existing at
any time to and including the Effective Date (as defined hereinafter)
(collectively, the "RELEASED MATTERS"), including without limitation,
A. any and all claims relating to or arising from
EMPLOYEE's employment relationship with Brocade and the termination of that
relationship.
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B. any and all claims relating to, or arising from,
EMPLOYEE's or Trust's right to purchase, or actual purchase of, shares of stock
of Brocade, including, without limitation, any claims by EMPLOYEE or Trust of
fraud, misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state or federal
law;
C. any and all claims for wrongful discharge of
employment; termination in violation of public policy; discrimination; breach of
contract, both express and implied; breach of a covenant of good faith and fair
dealing, both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion.
D. any and all claims for violation of any federal,
state or municipal statute, including, but not limited to, Title VII of the
Civil Rights Act of 1964, the Civil rights Act of 1991, the Age Discrimination
in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Fair
Labor Standards Act, the Employee Retirement Income Security Act of 1974, the
Worker Adjustment and Retraining Notification Act, Older Workers Benefit
Protection Act, and the California Fair Employment and Housing Act, and Labor
Code section 201, et. seq.;
E. any and all claims for violation of the federal,
or any state, constitution;
F. any and all claims arising out of any other laws
and regulations relating to employment or employment discrimination;
G. any and all claims for attorneys' fees and
costs; and
H. any and all claims either Brocade, on the one
hand, or EMPLOYEE and/or Trust, on the other hand, may have against the other
for any acts by either occurring at any time prior to the execution of this
Release.
Each of the parties agrees that the foregoing enumeration of claims released is
illustrative, and the claims hereby released are in no way limited by the above
recitation of specific claims, it being the intent of the parties to fully and
completely release all claims whatsoever in any way relating to the EMPLOYEE's
employment with Brocade and to the termination of such employment. Each of the
parties agrees that the release set forth in this section will be and remain in
effect in all respects as a complete general release as to the matters released.
(2) THE PARTIES AGREE THAT NOTWITHSTANDING ANY OF THE
FOREGOING THIS RELEASE DOES NOT EXTEND TO ANY OBLIGATIONS INCURRED UNDER THE
AGREEMENT OR ANY OBLIGATIONS OF EMPLOYEE OR TRUST UNDER THE CONFIDENTIALITY
AGREEMENT PREVIOUSLY EXECUTED BY
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THE EMPLOYEE, THE COSALE AGREEMENT, VOTING AGREEMENT OR PURCHASE AGREEMENT.
(3) EMPLOYEE and Trust each represent that neither
EMPLOYEE nor Trust has any lawsuits, claims nor actions pending in EMPLOYEE's or
Trust's name, or on behalf of any other person or entity, against Brocade or any
other person or entity referred to herein. EMPLOYEE and Trust each also
represent that neither EMPLOYEE nor Trust intends to bring any claims on
EMPLOYEE's or Trust's own behalf against Brocade or any other person or entity
referred to herein.
(4) EMPLOYEE and Trust each represent that neither
EMPLOYEE nor Trust is aware of any claim by EMPLOYEE or Trust other than the
claims that are released by this Release. EMPLOYEE and Trust each acknowledge
that he/it has been advised by legal counsel and is familiar with Section 1542
of the Civil Code of the State of California, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
EMPLOYEE and Trust expressly waive any right or benefit which EMPLOYEE or Trust
has or may have under Section 1542 of the California Civil Code or any similar
provision of the statutory or non-statutory law of any other jurisdiction to the
full extent that EMPLOYEE or Trust may lawfully waive those rights and benefits
pertaining to the subject matter of this Release. The parties acknowledge that
in the future they may discover claims or facts in addition to or different from
those that they now know or believe to exist with respect to the subject matter
of this Release, and that each of EMPLOYEE, Trust and Brocade intend to fully,
finally, and forever settle all of the Released matters in exchange for the
benefits set forth in this Release and in the Agreement. This release will
remain in effect as a full and complete release notwithstanding the discovery or
existence of any additional claims or facts.
b. INDEMNIFICATION. This Release shall not apply with respect to
any claims arising under EMPLOYEE's existing rights to indemnification and
defense pursuant to the Articles of Incorporation and Bylaws of Brocade for acts
as a director and/or officer or to EMPLOYEE's rights of insurance under any
director and officer liability policy in effect covering Brocade's directors and
officers. Brocade agrees to maintain any such director and officer liability
policy in effect with respect to EMPLOYEE's for services performed by him as an
officer to the same extent as other Brocade officers.
c. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. EMPLOYEE
acknowledges that EMPLOYEE is waiving and releasing any rights EMPLOYEE may have
under the Age Discrimination in Employment Act of 1967 ("ADEA") and that this
waiver and release is knowing and voluntary. EMPLOYEE and Brocade agree that
this waiver and release
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does not apply to any rights or claims that may arise under ADEA after the
Effective Date of this Release, EMPLOYEE acknowledges that the consideration
given for this waiver and release agreement in addition to anything of value to
which EMPLOYEE was already entitled. EMPLOYEE further acknowledges that EMPLOYEE
has been advised by this writing that:
(1) EMPLOYEE should consult with an attorney prior to
executing this Release;
(2) EMPLOYEE has at least twenty-one (21) days within
which to consider this Release, although EMPLOYEE may accept the terms of this
Release at any time within those 21 days;
(3) EMPLOYEE has at least seven (7) days following the
execution of this Release by the parties to revoke this Release; and
(4) This Release will not be effective until the
revocation period has expired.
d. VOLUNTARY EXECUTION OF AGREEMENT. This Release is entered into
and executed voluntarily and without any duress or undue influence on the part
or behalf of the parties hereto, with the full intent of releasing all claims.
The parties acknowledge that:
(1) they have read this Release;
(2) they have been represented in the preparation,
negotiation, and execution of this Release by legal counsel of their own choice
or that they have voluntarily declined to seek such counsel;
(3) they understand the terms and consequences of this
Release and of the releases it contains;
(4) they are fully aware of the legal and binding effect
of this Release.
EMPLOYEE AND TRUST UNDERSTAND THAT HE/IT IS ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE AND
UNDERSTANDS THAT HE/IT IS GIVING UP ANY LEGAL CLAIMS HE/IT
HAS AGAINST BROCADE BY SIGNING THIS RELEASE. EMPLOYEE AND
TRUST FURTHER ACKNOWLEDGE THAT EMPLOYEE AND TRUST DO SO
KNOWINGLY, WILLINGLY, AND VOLUNTARILY IN EXCHANGE FOR THE
BENEFITS DESCRIBED IN THE AGREEMENT.
7. ARBITRATION. Any claim, dispute, or controversy arising out of or in
any way relating to this Agreement or the alleged breach of this Agreement will
be submitted by the parties to binding arbitration in Santa Clara County,
California by the American Arbitration
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Association under its California Employment Dispute Resolution Rules or by a
judge to be mutually agreed upon. This Section 7 will not prevent either party
from seeking injunctive relief (or any other provisional remedy) from any court
having jurisdiction over the parties and the subject matter of their dispute
relating to EMPLOYEE's obligations under EMPLOYEE's Confidentiality Agreement,
and EMPLOYEE's obligations under Sections 5(c) and 5(d) and EMPLOYEE's or
Trust's obligation under Section 9 hereof.
8. ATTORNEYS' FEES. The prevailing party will be entitled to recover
from the losing party its attorneys' fees and costs (including expert witness
fees) incurred in any arbitration, lawsuit or other proceeding brought to
enforce any right arising out of this Agreement.
9. CONFIDENTIALITY. EMPLOYEE and Trust each acknowledge that EMPLOYEE
and Trust have not disclosed any of the terms of this Agreement to anyone other
than EMPLOYEE's and Trust's counsel and/or spouse/domestic partner. EMPLOYEE and
Trust agree, on behalf of each of EMPLOYEE, Trust and their respective agents,
not to disclose, or to take every reasonable precaution to prevent disclosure
of, any of the terms of this Agreement (or the Previous Agreement) or
consideration for this Agreement (the "SETTLEMENT INFORMATION") to third
parties, and agrees that there will be no publicity, directly or indirectly,
concerning any Settlement Information. EMPLOYEE and Trust agree to take every
reasonable precaution to disclose Settlement Information only to EMPLOYEE's
and/or Trust's attorney, accountant, tax authorities, and EMPLOYEE's
spouse/domestic partner, if and only if these individuals have a reasonable and
justifiable need to know of such Settlement Information, provided, however, that
any person or entity to whom such disclosure is made will, prior to disclosure
and to the extent permitted by law, acknowledge the confidentiality of such
information and agree to keep such information confidential. EMPLOYEE and Trust
acknowledge that the confidentiality of the terms of this Agreement is a
material inducement to Brocade in entering into it. Any dispute concerning this
confidentiality provision will be resolved through arbitration before the
American Arbitration Association in Santa Clara County, California (the
"ARBITRATOR") pursuant to Section 7. The prevailing party in the arbitration
will be entitled to reasonable attorneys' fees and costs incurred in arbitrating
the breach of the confidentiality provision, regardless of what other sanctions
or remedies the Arbitrator may award.
10. NON-DISPARAGEMENT. EMPLOYEE and Trust agree to refrain from
disparagement, criticism, defamation or slander of Brocade or any of its
employees, officers, directors, agents, products or services to anyone,
including but not limited to other employees and any past, present or
prospective customers. Brocade agrees to maintain its neutral reference policy
in regard to EMPLOYEE and use its reasonable efforts to refrain from
disparagement, criticism, defamation and slander of EMPLOYEE.
11. NO ADMISSION OF LIABILITY. Brocade, EMPLOYEE and Trust understand
and acknowledge that this Agreement constitutes a compromise and settlement. No
action taken by the parties hereto, or either of them, either previously or in
connection with this Agreement will be deemed or construed to be (a) an
admission of the truth or falsity of any claims or (b) an acknowledgment or
admission by a party of any fault or liability whatsoever to the other party or
to any third party.
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12. NO KNOWLEDGE OF WRONGDOING. EMPLOYEE has no knowledge of any
wrongdoing involving improper or false claims against a federal or state
governmental agency, or other wrongdoing, that involves EMPLOYEE or other
present or former Brocade employees.
13. SUCCESSORS. The provisions of this Agreement will extend and inure
to the benefit of, and be binding upon the respective legal successors and
assigns of Brocade, EMPLOYEE and Trust in addition to Brocade, EMPLOYEE and
Trust.
14. INTEGRATION. This Agreement constitutes the entire Agreement between
the parties with respect to the subject matter of this Agreement and supersedes
all prior negotiations and Agreements, including the Previous Agreement, whether
written or oral with the exception of EMPLOYEE's obligations under the
Confidentiality Agreement, CoSale Agreement, Voting Agreement and Purchase
Agreement (to the extent not amended hereby).
15. NO ORAL MODIFICATION. This Agreement may not be altered or amended
except by a written document executed by the affected parties.
16. GOVERNING LAW. This Agreement will in all respects be governed by
the laws of the State of California as applied to agreements entered into and to
be performed entirely within California between California residents.
17. EFFECTIVE DATE. This Agreement is effective as of September 23,
1998, provided that the Release, and Brocade's obligations pursuant to Section 3
above, shall become effective on the eighth day after this Agreement has been
signed by both parties (the "EFFECTIVE DATE"), unless sooner revoked by
EMPLOYEE. EMPLOYEE ACKNOWLEDGES THAT HE WAS OFFERED A PERIOD OF AT LEAST
TWENTY-ONE (21) DAYS TO CONSIDER THE TERMS OF THIS AGREEMENT. EMPLOYEE MAY
REVOKE THE RELEASE UNDER THIS AGREEMENT FOR A PERIOD OF SEVEN (7) DAYS FOLLOWING
EXECUTION OF THIS AGREEMENT. IF EMPLOYEE DESIRES TO REVOKE THE RELEASE, EMPLOYEE
MUST DELIVER OR CAUSE TO BE DELIVERED A WRITTEN STATEMENT OF REVOCATION FROM
EMPLOYEE PRIOR TO THE EFFECTIVE DATE TO THE CHIEF FINANCIAL OFFICER, BROCADE
COMMUNICATIONS SYSTEMS, INC., 1901 GUADALUPE PARKWAY, SAN JOSE, CA 95131. IF
EMPLOYEE REVOKES THE RELEASE PRIOR TO THE EFFECTIVE DATE BROCADE SHALL HAVE NO
OBLIGATIONS UNDER SECTION 3 HEREOF AND SHALL HAVE THE RIGHT TO REPURCHASE ALL
SHARES OF COMMON STOCK HELD BY THE TRUST WHICH ARE UNVESTED SHARES UNDER THE
PURCHASE AGREEMENT AS OF THE DATE OF SUCH REVOCATION AS PROVIDED IN ADDENDUM A
HERETO.
18. NO REPRESENTATIONS. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
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19. COUNTERPARTS. This Agreement may be executed in counterparts, and
each counterpart will have the same force and effect as an original and will
constitute an effective, binding agreement on the part of each of the
undersigned.
20. SEVERABILITY. In the event that any one or more of the provisions
contained herein will for any reason be held to be unenforceable in any respect
under any statute, rule or law of any state or of the United States of America,
such unenforceability will not affect any other provision of this Agreement,
but, with respect only to the jurisdiction holding the provision to be
unenforceable, this Agreement will then be construed as if such unenforceable
provision or provisions had never been contained herein.
EMPLOYEE: BROCADE COMMUNICATIONS
SYSTEMS, INC.
Bruce J. Bergman /s/ SETH NEIMAN
-----------------------------------------
By: Seth Neiman
Title: Chairman of the Board
/s/ Bruce J. Bergman
-------------------------------
Signature
Date: 09-23-98 Date: September 23, 1998
TRUST:
The Bergman Family Trust
/s/ Bruce J. Bergman
--------------------------------
By: /s/ Janet L. Bergman
----------------------------
Date: 09-23-98
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ADDENDUM A
5. COMPANY'S REPURCHASE OPTION. The Company has the option to
repurchase all or a portion of the Unvested Shares (as defined below) on the
terms and conditions set forth in this Section (the "REPURCHASE OPTION") if
Purchaser (i) breaches Sections 5(c) or 5(d) of that certain Confidential
Agreement and General Release of Claims effective as of August 19, 1998 by and
among parties including the Company and Purchaser (the "RELEASE AGREEMENT") or
(ii) revokes the Release under Section 17 of the Release Agreement (the
"REVOCATION").
(a) UNVESTED AND VESTED SHARES. Shares that are not Vested Shares
(as defined in this Section) are "UNVESTED SHARES". As of July 24, 1998 of the
773,528 Shares (after giving effect to all stock splits through such date)
purchased hereunder 596,263 Shares (after giving effect to all stock splits
through such date) are Vested Shares. For each full calendar month after July
24, 1998 that Purchaser is not in breach of any of his obligations under
Sections 5(c) and/or 5(d) of the Release Agreement Purchaser an additional
16,115 Shares (as constituted as of July 24, 1998 and subject to proportional
adjustment for any stock split, stock dividends, reverse stock splits or the
like with respect to the Company's Common Stock thereafter) shall become Vested
Shares. Notwithstanding the foregoing no Unvested Shares will become Vested
Shares at any time after the Revocation or following a breach of either Section
5 (c) and/or Section 5(d) of the Release Agreement.
(b) ADJUSTMENTS. The number of Shares that are Vested Shares or
Unvested Shares will be proportionally adjusted to reflect any stock dividend,
stock split, reverse stock split or recapitalization of the Common Stock of the
Company occurring after July 24, 1998.
(c) EXERCISE OF REPURCHASE OPTION AT ORIGINAL PRICE. In the event
of a (i) Revocation or (ii) a breach of any of Purchaser's obligations under
Section 5(c) and/or Section 5(d) of the Release Agreement prior to expiration of
the Transition Period, then at any time within ninety (90) days after the date
of such Revocation or the Company's Board of Directors becomes notified of such
breach, the Company may elect to repurchase any or all of the Unvested Shares
(as of the date of such Revocation or breach, as the case may be) by giving
Purchaser written notice of exercise of the Repurchase Option. The Company
and/or its assignee(s) will then have the option to repurchase from Purchaser
(or from Purchaser's personal representative as the case may be) any or all of
the Unvested Shares at the Purchaser's original Purchase Price Per Share (as
adjusted to reflect any stock dividend, stock split, reverse stock split or
recapitalization of the common stock of the Company occurring after June 5,
1996).
(d) PAYMENT OF REPURCHASE PRICE. The repurchase price payable to
purchase Unvested Shares upon exercise of the Repurchase Option will be payable,
at the option of the Company or its assignee(s), by check or by cancellation of
all or a portion of any outstanding indebtedness of Purchaser to the Company (or
to such assignee) or by any combination thereof. The repurchase price will be
paid without interest within ninety (90) days after the date of such breach."
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