First Data 2009 Annual Report Download - page 272

“Affiliate” means with respect to any Person, any entity directly or indirectly controlling, controlled by or under common
control with such Person.
“Agreement” shall have the meaning set forth in the introductory paragraph.
“Base Price” shall have the meaning set forth in Section 1(a) hereof.
“Board” shall mean the board of directors of the Company.
“Call Events” shall mean, collectively, Section 6(a) Call Events, Section 6(b) Call Events and Section 6(c) Call Events.
“Call Notice” shall have the meaning set forth in Section 6(d) hereof.
“Call Period” shall have the meaning set forth in Section 6(d) hereof.
“Cause” shall have the meaning ascribed to it in any employment, severance or change in control agreement between the
Management Stockholder and the Company or any of its Affiliates, or, if there is no such agreement, “Cause” shall mean (a) the
Management Stockholder’s continued failure substantially to perform the Management Stockholder’s duties with the Company or any
Subsidiary or Affiliate thereof (other than as a result of total or partial incapacity due to physical or mental illness) for a period of 10
days following written notice by the Company to the Management Stockholder of such failure, (b) the Management Stockholder’s
conviction of, or plea of nolo contendere to a crime constituting (x) a felony under the laws of the United States or any state thereof or
(y) a misdemeanor involving moral turpitude, (c) the Management Stockholder’s willful malfeasance or willful misconduct in
connection with the Management Stockholder’s duties with the Company or any of its Subsidiaries or Affiliates or any willful
misrepresentation, willful act or willful omission which is injurious to the financial condition or business reputation of the Company
or its Affiliates or (d) the Management Stockholder’s material breach of the provisions of Section 23 of this Agreement. For purposes
hereof, no act, or failure to act, by the Management Stockholder will be deemed “willful” unless done, or omitted to be done, by the
Management Stockholder not in good faith and without reasonable belief the Management Stockholder’s act, or failure to act, was in
the best interest of the Company, and under no circumstances will the failure to meet performance targets, after a good faith attempt
to do so, in and of itself constitute Cause.
“Change of Control” means in one or a series of transactions, (i) the sale of all or substantially all of the assets of New Omaha
Holdings, L.P. or the Company or First Data Corporation to any Person (or group of Persons acting in concert), other than to (x)
investment funds affiliated with Kohlberg Kravis Roberts & Co. L.P. (together, the “Sponsor”), any other investor in respect of whom
the Sponsor has the power to direct such investor’s vote with respect to the Company’s Common Stock or other equity securities
(each an “Investor” and together with the Sponsor, the “Sponsor Group”) or their respective Affiliates or (y) any employee benefit
plan (or trust forming a part thereof) maintained by the Company, the Sponsor Group or their respective Affiliates or other Person of
which a majority of its voting power or other equity securities is owned, directly or indirectly, by the Company, the Sponsor Group or
their respective Affiliates; or (ii) a merger, recapitalization or other sale by the Sponsor or its Affiliates (other than through a Public
Offering) of Common Stock or other voting securities of the Company that results in more than 50% of the Common Stock or other
voting securities of the Company (or any resulting company after a merger) owned, directly or indirectly, by the Sponsor following
the Closing Date, no longer being so owned by the Sponsor; and, (iii) in any event of clause (i) or (ii) above, such transaction results
in any Person (or group of Persons acting in concert) having the ability to elect more members of the Board than the Sponsor Group;
provided, however, that following an event described in clause (i), a liquidation of, or the declaration of an extraordinary dividend by,
the Company or First Data Corporation (or any successor entities) shall also constitute a Change in Control.
“Closing Date” shall mean September 24, 2007.
“Common Stock” shall mean the common stock of the Company.
“Company” shall have the meaning set forth in the introductory paragraph.
“Confidential Information” shall mean all non-public information concerning trade secret, know-how, software, developments,
inventions, processes, technology, designs, the financial data, strategic business plans or any proprietary or confidential information,
documents or materials in any form or media, including any of the foregoing relating to research, operations, finances, current and
proposed products and services, vendors, customers, advertising and marketing, and other non-public, proprietary, and confidential
information of the Restricted Group, excluding any such non-public information that (i) is required by court or administrative order to
be disclosed or (ii) becomes generally available to the public other than as a result of a disclosure or failure to safeguard in violation
of Section 23.