First Data 2007 Annual Report Download - page 396

8. Certain Additional Payments
(i) Notwithstanding anything to the contrary set forth herein, but subject to clause (v) below, if it is determined that any payments or benefits provided
by the Company to or on behalf of an Eligible Executive (whether pursuant to the terms of this Policy or otherwise) (any such payments or benefits being
referred to in this Section as "Payments"), but determined without taking into account any additional payments required under this Section, would be subject
to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by the Eligible Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, collectively referred to herein as the "Excise Tax"), then the Eligible Executive will be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount so that after payment by the Eligible Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the
Excise Tax imposed upon the Gross-Up Payment, the Eligible Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments. Notwithstanding the foregoing, if it is determined that the Eligible Executive is entitled to a Gross-Up Payment, but that the Payments to the
Eligible Executive do not exceed 110% of the amount which is one dollar less than the smallest amount that would give rise to any Excise Tax (the "Reduced
Amount"), then no Gross-Up Payment will be made to the Eligible Executive and the Payments shall be reduced to the Reduced Amount. In such event, the
reduction will occur in the following order unless the Eligible Executive elects in writing a different order (provided, however, that such election shall be
subject to Company approval if made on or after the date on which the event that triggers the Payment occurs): (i) reduction of cash payments;
(ii) cancellation of accelerated vesting of equity awards; and (iii) reduction of employee benefits. If acceleration of vesting of compensation from an Eligible
Executive's equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant unless the Eligible
Executive elects in writing a different order for cancellation.
(ii) Subject to the provisions of Section 8(iii), all determinations required to be made under this Section, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions to be used in arriving at such determination, will be made by the
independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in
Control (the "Accounting Firm"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the
Change in Control, the Company shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). The Accounting Firm shall provide its calculations, together with detailed
supporting documentation, to the Company and the Eligible Executive within fifteen (15) calendar days after the date on which the Eligible Employee's right
to Payment is triggered (if requested at that time by the Company or the Eligible Executive) or such other time as requested by the Company or the Eligible
Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this
Section 8, shall be paid by the Company to the Eligible Executive within five days of the receipt of the Accounting Firm's determination. If the Accounting
Firm determines that no Excise Tax is payable by the Eligible Executive, it shall furnish the Eligible Executive with a written opinion that no Excise Tax will
be imposed. Any good faith determination by the Accounting Firm shall be binding upon the Company and the Eligible Executive. As a result of the
uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to Section 8(iii) and the Eligible Executive thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Eligible Executive.
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