First Data 2009 Annual Report Download - page 270

in any event (i) shall be mandatorily repayable promptly and to the extent that an Event no longer prohibits the payment of cash to
the applicable Management Stockholder Entity pursuant to this Agreement; and (ii) shall bear interest at a rate equal to the
effective rate of interest in respect of the Company’s U.S. dollar-denominated subordinated public debt securities (including any
original issue discount). Notwithstanding the foregoing and subject to Section 5(d), if an Event exists and is continuing for ninety
(90) days after the date of the Redemption Notice, the Management Stockholder Entities shall be permitted by written notice to
rescind any Redemption Notice with respect to that portion of the Stock and Options repurchased by the Company from the
Management Stockholder Entities pursuant to this Section 5 with the note described in the foregoing sentence, and such repurchase
shall be rescinded; provided that, upon such rescission, such note shall be immediately canceled without any action on the part of
the Company or the Management Stockholder Entities, and notwithstanding anything herein or in such note to the contrary, the
Company shall have no obligation to pay any amounts of principal or interest thereunder.
(d) Notwithstanding anything in this Agreement to the contrary, except for any payment obligation of the Company which
has arisen prior to the occurrence of a Change in Control, Section 5 shall terminate and be of no further force or effect upon the
occurrence of such Change in Control.
6 The Company’s Option to Purchase Stock and Options of the Management Stockholder Upon Certain Terminations of
Employment.
(a) Termination for Cause by the Company and other Call Events. If, (i) prior to the fifth anniversary of the Closing Date,
the Management Stockholder’s active employment with the Company (or, if applicable, its subsidiaries or affiliates) is terminated
by the Company (or, if applicable, its subsidiaries or affiliates) for Cause or (ii) the Management Stockholder Entities effect a
transfer of Stock (or Options) that is prohibited under this Agreement (or the Stock Option Agreements, as applicable), after notice
from the Company of such impermissible transfer and a reasonable opportunity to cure such transfer which is not so cured (each
event described above, a “Section 6(a) Call Event”), then:
(i) With respect to Stock, the Company may purchase, on one occasion, all or any portion of the shares of Stock then
held by the applicable Management Stockholder Entities at a per share purchase price equal to the lesser of (x) Base Price (or other
applicable price paid by such Management Stockholder Entities for such Stock) and (y) the Fair Market Value on the Repurchase
Calculation Date; and
(ii) With respect to all Options, all outstanding Options, whether vested or unvested, shall be automatically terminated
without any payment in respect thereof upon the occurrence of the Section 6(a) Call Event.
(b) Termination without Cause by the Company (other than due to his or her death or Disability),Termination by the
Management Stockholder with Good Reason and Termination for Death or Disability. If, prior to the fifth anniversary of the
Closing Date, the Management Stockholder’s active employment with the Company (or, if applicable, its subsidiaries or affiliates)
is terminated (i) by the Company (or, if applicable, its subsidiaries or affiliates) without Cause (other than due to his death or
Disability), (ii) by the Management Stockholder with Good Reason or (iii) as a result of the death or Disability of the Management
Stockholder (each, a “Section 6(b) Call Event”) then:
(i) With respect to Stock, the Company may purchase, on one occasion, all or any portion of the shares of such Stock
then held by the applicable Management Stockholder Entities at a per share purchase price equal to Fair Market Value on the
Repurchase Calculation Date;
(ii) With respect to any outstanding vested Options, the Company may purchase, on one occasion, all or any portion of
the exercisable vested Options held by the applicable Management Stockholder Entities for an amount equal to the product of (x)
the excess, if any, of the Fair Market Value on the Repurchase Calculation Date over the Option Exercise Price and (y) the number
of Exercisable Option Shares (solely relating to the vested Options), which vested Options shall be terminated in exchange for such
payment. In the event the Company elects to repurchase under this Section 6(b)(ii) and the foregoing Option Excess Price is zero or
a negative number, all outstanding exercisable vested Options shall be automatically terminated without any payment in respect
thereof; and
(iii) With respect to unvested Options, all outstanding unvested Options shall automatically be terminated without any
payment in respect thereof.
(c) Termination by the Management Stockholder without Good Reason. If, prior to the fifth anniversary of the Closing
Date, the Management Stockholder’s employment with the Company (or, if applicable, its subsidiaries or affiliates) is terminated
by the Management Stockholder without Good Reason (a “Section 6(c) Call Event”), then:
(i) With respect to Purchased Stock and Rollover Stock, the Company may purchase, on one occasion, all or any portion
of the shares of such Purchased Stock and Rollover Stock then held by the applicable Management Stockholder Entities at a per
share purchase price equal to, (i) if the Management Stockholder is not in violation of any of the provisions of Section 23 of this
Agreement on the date that the Repurchase Notice is sent, the Fair Market Value on the Repurchase Calculation Date or (ii) if the
Management Stockholder is in violation of any of the provisions of Section 23 of this Agreement on the date that the Repurchase
Notice is sent, the lesser of (x) Base Price (or other applicable price paid by such Management Stockholder Entities for such Stock)
and (y) the Fair Market Value on the Repurchase Calculation Date;