First Data 2009 Annual Report Download - page 269

completion and time of completion of such sale and of the terms thereof as may reasonably be requested by the Company. If, at the
end of sixty (60) days following the expiration of the 20-day period during which the Company is entitled hereunder to purchase
the Stock, the Management Stockholder has not completed the sale of such shares of the Stock as aforesaid, all of the restrictions
on sale, transfer or assignment contained in this Agreement shall again be in effect with respect to such shares of the Stock.
(c) Notwithstanding anything in this Agreement to the contrary, this Section 4 shall terminate and be of no further force or
effect upon the earlier of occurrence of a Change in Control or a Qualified Public Offering.
5 The Management Stockholder’s Right to Resell Stock and Options to the Company.
(a) Except as otherwise provided herein, and subject to Section 6(b), if the Management Stockholder’s employment with
the Company (or, if applicable, any of its subsidiaries or affiliates) terminates as a result of the death or Disability of the
Management Stockholder, then the applicable Management Stockholder Entity, shall, until the later of (x) 365 days following the
date of such termination for death or Disability or (y) if the Company has declared an Event has occurred, 30 days following the
date on which the Management Stockholder receives notice that an Event no longer exists (the “Put Period”), have the right to:
(i) With respect to Stock, sell to the Company, and the Company shall be required to purchase, on one occasion, all of
the shares of Stock then held by the applicable Management Stockholder Entities at a per share price equal to Fair Market Value on
the Repurchase Calculation Date (the “Section 5 Repurchase Price”); and
(ii) With respect to any outstanding vested Options, sell to the Company, and the Company shall be required to
purchase, on one occasion, all of the then vested Options then held by the applicable Management Stockholder Entities for an
amount equal to the product of (x) the excess, if any, of the Section 5 Repurchase Price over the Option Exercise Price and (y) the
number of Exercisable Option Shares, which Options shall be terminated in exchange for such payment. In the event the
Management Stockholder Entity elects to sell under this Section 5(a)(ii) and the foregoing Option Excess Price is zero or a
negative number, all outstanding exercisable Options granted to the Management Stockholder shall be automatically terminated
without any payment in respect thereof. In addition, and for the avoidance of doubt, upon termination of employment as a result of
the death or Disability all unvested Options shall be terminated and cancelled without any payment therefor.
(b) In the event the applicable Management Stockholder Entities intend to exercise their rights pursuant to Section 5(a),
such Management Stockholder Entities shall send written notice to the Company, at any time during the Put Period, of their
intention to sell shares of Stock in exchange for the payment referred to in Section 5(a)(i) and/or to sell such Options in exchange
for the payment referred to in Section 5(a)(ii) (as the case may be) and shall indicate the number of shares of Stock to be sold and
the number of Options (based on the number of Exercisable Option Shares) to be sold with payment in respect thereof (the
“Redemption Notice”). The completion of the purchases shall take place at the principal office of the Company on no later than the
twentieth business day (such date to be determined by the Company) after the giving of the Redemption Notice. The applicable
Repurchase Price (including any payment with respect to the Options as described above) shall be paid by delivery to the
applicable Management Stockholder Entities, at the option of the Company, of a certified bank check or checks in the appropriate
amount payable to the order of each of the applicable Management Stockholder Entities (or by wire transfer of immediately
available funds, if the Management Stockholder Entities provide to the Company wire transfer instructions) against delivery of
certificates or other instruments representing the Stock so purchased and appropriate documents cancelling the Options so
terminated appropriately endorsed or executed by the applicable Management Stockholder Entities or any duly authorized
representative.
(c) Notwithstanding anything in this Section 5 to the contrary, if (i) there exists and is continuing a default or an event of
default on the part of the Company or any subsidiary of the Company under any loan, guarantee or other agreement under which
the Company or any subsidiary of the Company has borrowed money or if the repurchase referred to in Section 5(a) (or Section 6
below, as the case may be) would result in a default or an event of default on the part of the Company or any affiliate of the
Company under any such agreement; (ii) a repurchase would reasonably be expected to be prohibited by the Delaware General
Corporation Law (“DGCL”) or any federal or state securities laws or regulations (or if the Company reincorporates in another
state, the business corporation law of such state) or (iii) a repurchase would materially impair the cash flow of the Company, (each
such occurrence being an “Event”), the Company shall not be obligated to repurchase for cash any of the Stock or the Options from
the applicable Management Stockholder Entities to the extent it would cause any such default, materially impair cash flow or
would be so prohibited by the Event for cash but instead, with respect to such portion with respect to which cash settlement is
prohibited, may satisfy its obligations with respect to the Management Stockholder Entities’ exercise of their rights under Section 5
(a) by delivering to the applicable Management Stockholder Entity a note with a principal amount equal to the amount payable
under this Section 5 that was not paid in cash, having terms acceptable to the Company’s (and its affiliate’s, as applicable) lenders
and permitted under the Company’s (and its affiliate’s, as applicable) debt instruments but which