First Data 2007 Annual Report Download - page 398

advanced by the Company pursuant to Section 8(iii), a determination is made that the Eligible Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Eligible Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
(v) This Section 8 shall not apply with respect to any Payment that would otherwise be subject to the Excise Tax if such Excise Tax would be avoided
by obtaining stockholder approval of the Payment in the manner prescribed by Section 280G of the Code and regulations thereunder.
9. Requirement of Release
The provision of Severance Benefits under this Policy is conditioned upon the Eligible Executive timely signing an Agreement and Release (in a form
satisfactory to the Company) which will include restrictive covenants and a comprehensive release of all claims. In this Agreement and Release, the Eligible
Executive will be asked to release the Company and its employees from any and all claims the Eligible Executive may have against them, including but not
limited to any contract, tort, or wage and hour claims, and any claims under Title VII, the ADEA, the ADA, ERISA, and other federal, state or local laws.
Under the Agreement and Release, the Eligible Executive must also agree not to solicit business similar to any business offered by the Company from any
Company customer, not to advise any entity to cancel or limit its business with the Company, not to recruit, solicit, or encourage any employee to leave their
employment with the Company, not to disclose any of Company's trade secrets or confidential information, and not to disparage the Company or its
employees in any way. These obligations are in addition to any other non-solicitation, noncompete, nondisclosure, or confidentiality agreements the Eligible
Executive may have executed while employed by Company. No Severance Benefits will commence under this Policy prior to the eighth day following the
date on which the Company has received the Eligible Executive's fully executed Agreement and Release.
10. Method of Payment
The Company reserves the right to determine whether cash Severance Benefits payable to an Eligible Executive under the Policy shall be paid in a
single lump sum or in substantially equal installments, and to choose the timing of such payments; provided that lump sum cash Severance Benefits shall be
paid within one (1) month following the Eligible Executive's Termination Date, and installment cash Severance Benefits shall commence no later than the
second month following the Eligible Executive's Termination Date (or if later, the earliest date the Company determines will not result in a violation of Code
Section 409A, if applicable), and shall be paid in full no later than the end of the Severance Period. Notwithstanding the foregoing, in no event shall payment
of any Severance Benefit be made prior to the Eligible Employee's Termination Date or prior to the effective date of the release described in Section 9 above.
If an Eligible Executive dies after becoming eligible for Severance Benefits and executing an Agreement and Release but before full receipt of all cash
Severance Benefits, the remaining cash Severance Benefits will be paid to the Eligible Executive's estate in one lump sum. If an Eligible Executive dies after
becoming eligible for Severance Benefits but before executing an Agreement and Release, his or her estate or representative may not execute an Agreement
and Release and no Severance Benefits with respect to the Eligible Executive are payable under this Policy. All payments under this Policy will be net of
amounts withheld with respect to taxes, offsets, or other obligations.
11. Offsets
The Company may, in its discretion and to the extent permitted under applicable law, offset against the Eligible Executive's benefits under this Policy
any other severance benefits payable to the Eligible Executive by the Company, the value of unreturned
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