First Data 2012 Annual Report Download - page 173

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 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), i
f
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repurchase shall be rescinded; provided that, upon such rescission, such note shall be immediately canceled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) 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