Common use of Exercise of Repurchase Right Clause in Contracts

Exercise of Repurchase Right. Unless Workday provides written notice to Participant within 90 days from the date of termination of Participant’s service to Workday that Workday does not intend to exercise its Repurchase Right with respect to some or all of the Unvested Shares, the Repurchase Right will be deemed automatically exercised by Workday as of the 90th day following such termination, provided that Workday may notify Participant that it is exercising its Repurchase Right as of a date prior to such 90th day. Unless Participant is otherwise notified by Workday pursuant to the preceding sentence that Workday does not intend to exercise its Repurchase Right as to some or all of the Unvested Shares, execution of this Agreement by Participant constitutes written notice to Participant of Workday’s intention to exercise its Repurchase Right with respect to all Unvested Shares to which such Repurchase Right applies at the time of Termination of Participant. Workday, at its choice, may satisfy its payment obligation to Participant with respect to exercise of the Repurchase Right by (A) delivering a check to Participant in the amount of the purchase price for the Unvested Shares being repurchased, (B) in the event Participant is indebted to Workday, canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, (C) in the event Participant purchased Unvested Shares pursuant to Section 2(b), at the time of Termination of Participant, Participant will forfeit all of Participant’s Unvested Shares or (D) by a combination of (A) and (B) so that the combined payment and cancellation of indebtedness equals such purchase price. In the event of any deemed automatic exercise of the Repurchase Right by canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, such cancellation of indebtedness will be deemed automatically to occur as of the 90th day following termination of Participant’s employment or consulting relationship unless Workday otherwise satisfies its payment obligations. As a result of any repurchase of Unvested Shares pursuant to the Repurchase Right, Workday will become the legal and beneficial owner of the Unvested Shares being repurchased and will have all rights and interest therein or related thereto, and Workday will have the right to transfer to its own name the number of Unvested Shares being repurchased by Workday, without further action by Participant.

Exercise of Repurchase Right. Unless Workday the Company provides written notice to Participant within 90 days from the date of termination of Participant’s service to Workday the Company that Workday the Company does not intend to exercise its Repurchase Right with respect to some or all of the Unvested Shares, the Repurchase Right will shall be deemed automatically exercised by Workday the Company as of the 90th day following such termination, provided that Workday the Company may notify Participant that it is exercising its Repurchase Right as of a date prior to such 90th day. Unless Participant is otherwise notified by Workday the Company pursuant to the preceding sentence that Workday the Company does not intend to exercise its Repurchase Right as to some or all of the Unvested Shares, execution of this Agreement by Participant constitutes written notice to Participant of Workdaythe Company’s intention to exercise its Repurchase Right with respect to all Unvested Shares to which such Repurchase Right applies at the time of Termination of Participant. WorkdayThe Company, at its choice, may satisfy its payment obligation to Participant with respect to exercise of the Repurchase Right by either (A) delivering a check to Participant in the amount of the purchase price for the Unvested Shares being repurchased, or (B) in the event Participant is indebted to Workdaythe Company, canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, or (C) in the event Participant purchased Unvested Shares pursuant to Section 2(b), at the time of Termination of Participant, Participant will forfeit all of Participant’s Unvested Shares or (D) by a combination of (A) and (B) so that the combined payment and cancellation of indebtedness equals such purchase price. In the event of any deemed automatic exercise of the Repurchase Right by canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, such cancellation of indebtedness will shall be deemed automatically to occur as of the 90th day following termination of Participant’s employment or consulting relationship unless Workday the Company otherwise satisfies its payment obligations. As a result of any repurchase of Unvested Shares pursuant to the Repurchase Right, Workday will the Company shall become the legal and beneficial owner of the Unvested Shares being repurchased and will shall have all rights and interest therein or related thereto, and Workday will the Company shall have the right to transfer to its own name the number of Unvested Shares being repurchased by Workdaythe Company, without further action by Participant.

Exercise of Repurchase Right. Unless Workday provides The Company may exercise the Repurchase Right to repurchase the Repurchase Securities only in connection with, and up to three business days prior to or simultaneously with, the completion of a Repurchase Transaction. The Repurchase Right shall terminate on the earliest of: (i) except with respect to a Repurchase Transaction described in clause (y) of the definition thereof, (A) the Company’s entering into a definitive agreement providing for a Change of Control or (B) any offer or proposal by a third party to enter into or consummate a transaction which would result in a Change of Control, which proposal is publicly recommended by the Board of Directors of the Company, (ii) the completion of a Repurchase Transaction unless the Repurchase Right has previously been or is simultaneously exercised and completed; or (iii) January 31, 2012 (the date on which the earliest of such events occurs, the “Repurchase Right Termination Date”). For purposes of clarification, neither the Company’s entering into a definitive agreement providing for a Repurchase Transaction described in clause (y) of the definition thereof nor the public recommendation by the Company’s Board of Directors of a proposal for a Repurchase Transaction described in clause (y) of the definition thereof, shall, in itself, terminate the Company’s Repurchase Right. To exercise the Repurchase Right the Company shall deliver a written notice to Participant within 90 days from the date of termination of Participant’s service to Workday that Workday does not intend its election (an “Election Notice”) to exercise its Repurchase Right with respect to some or all Perseus, which notice shall (i) specify the existence of and include a reasonable description of the Unvested Shares, terms of the Repurchase Right will be deemed automatically exercised by Workday as of Transaction that permits the 90th day following such termination, provided that Workday may notify Participant that it is exercising its Repurchase Right as of a date prior to such 90th day. Unless Participant is otherwise notified by Workday pursuant to the preceding sentence that Workday does not intend Company to exercise its Repurchase Right, (ii) specify the date on which the repurchase contemplated by this Section 2 will be completed (the “Repurchase Right as Exercise Date”), which date shall be simultaneously with, or up to some or all three business days prior to, the completion of the Unvested Sharesapplicable Repurchase Transaction, execution of this Agreement by Participant constitutes written notice and (iii) be delivered not less than one business day prior to Participant of Workday’s intention to exercise its the Repurchase Right with respect to all Unvested Shares to which such Exercise Date. On the Repurchase Right applies at Exercise Date specified in the time Election Notice: (a) The Company shall deliver, or cause to be delivered, the Repurchase Price to Perseus by wire transfer of Termination immediately available funds to an account designated in writing to the Company by Perseus; (b) Perseus shall deliver to the Company all Repurchase Securities held by it or any other members of Participantthe Perseus Group, free and clear of any Liens, other than such Liens as may be imposed by federal or state securities laws, in consideration of the Repurchase Price; (c) Each of the Transaction Documents shall automatically terminate and any and all rights, liabilities, obligations and duties of each of the parties thereunder shall be of no further force or effect; provided, that the provisions in the last sentence of Section 5.5 of the Securities Purchase Agreement (the “Surviving Provision”) shall survive such termination. WorkdayIn furtherance of the foregoing, at its choiceeach member of the Perseus Group and the Company shall be deemed to have released all liabilities, may satisfy its payment obligation to Participant with respect to exercise obligations and duties of each of the other parties thereunder, other than the Surviving Provision, immediately following the effectuation of the Repurchase Right by in accordance with the provisions of this Section 2; and 32144873.DOC (Ad) delivering a check to Participant in Effective on the amount of the purchase price for the Unvested Shares being repurchased, (B) in the event Participant is indebted to Workday, canceling an amount of such indebtedness equal Repurchase Right Exercise Date and subject to the purchase price for the Unvested Shares being repurchased, (C) in the event Participant purchased Unvested Shares pursuant to Section 2(b), at the time of Termination of Participant, Participant will forfeit all of Participant’s Unvested Shares or (D) by a combination of (A) and (B) so that the combined payment and cancellation of indebtedness equals such purchase price. In the event of any deemed automatic exercise effectuation of the Repurchase Right by canceling an amount in accordance with the provisions of such indebtedness equal this Section 2, all Liens that encumber any of the properties, securities or other assets of the Company pursuant to the purchase price for the Unvested Shares being repurchased, such cancellation of indebtedness will be deemed automatically to occur as provisions of the 90th day following termination of Participant’s employment Transaction Documents, or consulting relationship unless Workday otherwise satisfies its payment obligations. As as a result of any repurchase of Unvested Shares actions taken pursuant to the Repurchase Right, Workday will become the legal and beneficial owner provisions of any of the Unvested Shares being repurchased Transaction Documents, will be hereby released and will have all rights terminated. In furtherance of the foregoing, Perseus shall deliver to the Company UCC-3 termination statements and interest therein or related theretonotices to the U.S. Patent and Trademark Office providing for the release and termination of any such Liens, and Workday will have shall otherwise take all such additional actions as may be reasonably necessary to cause any such Liens to be released and terminated, to the right full satisfaction of the Company, on or prior to transfer to its own name the number of Unvested Shares being repurchased by Workday, without further action by ParticipantRepurchase Right Exercise Date.

Exercise of Repurchase Right. Unless Workday provides written notice In the event the Closing occurs, Seller will have the right, but not the obligation, to Participant within 90 days repurchase all of the Property from Buyer at the Purchase Price (the “Repurchase Right”) if either (i) Buyer has not satisfied the Project Progress Conditions (as hereinafter defined) as of the fifth anniversary of the Closing Date or (ii) on or prior to the fifth anniversary of the Closing Date, Buyer notifies Seller that Buyer does not plan to proceed with the Project (the occurrence of the events described in clauses (i) and (ii) are each referred to herein as a “Repurchase Right Trigger Event”, and such anniversary date or the date upon which Seller is notified of termination such Repurchase Right Trigger Event, the “Repurchase Right Trigger Date”). Upon the occurrence of Participanta Repurchase Right Trigger Event, Seller shall have until the first anniversary of the Repurchase Right Trigger Date to conduct due diligence investigations (including, without limitation, to conduct all tests and studies of whatever nature Seller deems necessary in its sole and absolute discretion (including, without limitation, invasive Phase II environmental site assessments) at Seller’s service sole expense and liability and to Workday that Workday does not intend obtain and review a title commitment for the Property) and to notify Buyer of Seller’s election to exercise its Repurchase Right with respect to some or all of the Unvested Shares(such period, the “Repurchase Right will be deemed automatically exercised by Workday as of Term” and such notice, the 90th day following such termination, provided that Workday may notify Participant that it is exercising its “Repurchase Right as Notice”). If Seller fails to notify Buyer of a date prior to such 90th day. Unless Participant is otherwise notified by Workday pursuant to the preceding sentence that Workday does not intend its election to exercise its Repurchase Right as prior to some or all of the Unvested Shares, execution of this Agreement by Participant constitutes written notice to Participant of Workday’s intention to exercise its Repurchase Right with respect to all Unvested Shares to which such Repurchase Right applies at the time of Termination of Participant. Workday, at its choice, may satisfy its payment obligation to Participant with respect to exercise expiration of the Repurchase Right by (A) delivering a check to Participant in the amount of the purchase price for the Unvested Shares being repurchasedTerm, (B) in the event Participant is indebted to Workday, canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, (C) in the event Participant purchased Unvested Shares pursuant to Section 2(b), at the time of Termination of Participant, Participant will forfeit all of Participant’s Unvested Shares or (D) by a combination of (A) and (B) so that the combined payment and cancellation of indebtedness equals such purchase price. In the event of any deemed automatic exercise of then the Repurchase Right by canceling an amount shall be deemed forfeited and of such indebtedness equal to the purchase price no further force and effect. The Repurchase Right may only be exercised for the Unvested Shares being repurchased, such cancellation of indebtedness will be deemed automatically to occur as entire parcel of the 90th day following termination of Participant’s employment or consulting relationship unless Workday otherwise satisfies its payment obligations. As a result of any repurchase of Unvested Shares pursuant to the Repurchase RightProperty, Workday will become the legal and beneficial owner of the Unvested Shares being repurchased and will have all rights and interest therein or related thereto, and Workday will have the right to transfer to its own name the number of Unvested Shares being repurchased by Workday, without further action by Participantexcept as provided in Section 4(b)(iv).

Exercise of Repurchase Right. Unless Workday provides A Right of Repurchase shall be exercisable only by written notice delivered to Participant within 90 the Purchaser prior to the expiration of the applicable period specified in subsection (b) above. The notice shall set forth the date on which the repurchase is to be effected. Such date shall not be more than 60 days from after the date of termination the notice. The certificate(s) representing the Shares to be repurchased shall, prior to the close of Participantbusiness on the date specified for the repurchase, be delivered to the Company properly endorsed for transfer, free and clear of any encumbrances, restrictions, liens or security interests thereon, except for the restrictions set forth in this Agreement and under applicable securities laws. The Company shall, concurrently with the receipt of such certificate(s), pay to the Purchaser the purchase price determined according to subsection (d) above as follows: (i) If the Company is exercising an Ordinary Right of Repurchase or a Termination Right of Repurchase (and no Forfeiting Event has occurred), payment shall be made in cash or cash equivalents or by canceling any indebtedness of the Company to the Purchaser; and (ii) If the Company is exercising a Termination Right of Repurchase (and one or more Forfeiting Events have occurred), payment shall be made by (x) first offsetting damages, if any, suffered by the Company as a result of the Purchaser’s service breach causing the Forfeiting Event, (y) next reducing or canceling any indebtedness of the Company to Workday that Workday does the Purchaser, and (z) the balance shall be paid, at the option of the Company, in cash or cash or by delivery of a promissory note, with interest payable at the lowest applicable federal rate, and a maturity three years after the date of issue. The Right of Repurchase shall not intend be the Company’s sole remedy in the event of a Forfeiting Event, but shall be in addition to exercise its any other remedy available to the Company at law or in equity. The Right of Repurchase Right shall terminate with respect to some or all of the Unvested Shares, the Repurchase Right will be deemed automatically any Shares for which it has not been timely exercised by Workday as of the 90th day following such termination, provided that Workday may notify Participant that it is exercising its Repurchase Right as of a date prior to such 90th day. Unless Participant is otherwise notified by Workday pursuant to the preceding sentence that Workday does not intend to exercise its Repurchase Right as to some or all of the Unvested Shares, execution of this Agreement by Participant constitutes written notice to Participant of Workday’s intention to exercise its Repurchase Right with respect to all Unvested Shares to which such Repurchase Right applies at the time of Termination of Participant. Workday, at its choice, may satisfy its payment obligation to Participant with respect to exercise of the Repurchase Right by subsection (A) delivering a check to Participant in the amount of the purchase price for the Unvested Shares being repurchased, (B) in the event Participant is indebted to Workday, canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, (C) in the event Participant purchased Unvested Shares pursuant to Section 2(be), at the time of Termination of Participant, Participant will forfeit all of Participant’s Unvested Shares or (D) by a combination of (A) and (B) so that the combined payment and cancellation of indebtedness equals such purchase price. In the event of any deemed automatic exercise of the Repurchase Right by canceling an amount of such indebtedness equal to the purchase price for the Unvested Shares being repurchased, such cancellation of indebtedness will be deemed automatically to occur as of the 90th day following termination of Participant’s employment or consulting relationship unless Workday otherwise satisfies its payment obligations. As a result of any repurchase of Unvested Shares pursuant to the Repurchase Right, Workday will become the legal and beneficial owner of the Unvested Shares being repurchased and will have all rights and interest therein or related thereto, and Workday will have the right to transfer to its own name the number of Unvested Shares being repurchased by Workday, without further action by Participant.