First Data 2009 Annual Report Download - page 280

(b) If to the Management Stockholder, to the Management Stockholder at the address set forth below under the
Management Stockholder’s signature; or at such other address as either party shall have specified by notice in writing to the other.
23 Confidential Information; Covenant Not to Compete; Covenant Not to Solicit.
(a) In consideration of the Company entering into this Agreement with the Management Stockholder, the Management
Stockholder shall not, directly or indirectly:
(i) at any time during or after the Management Stockholder’s employment with the Company or its subsidiaries, disclose
any Confidential Information pertaining to the business of the Company or any of its subsidiaries or the Investors or any of their
respective Affiliates, except when required to perform his or her duties to the Company or one of its subsidiaries, by law or
judicial process;
(ii) at any time during the Management Stockholder’s employment with the Company or its subsidiaries and for a period of
two (2) years thereafter, directly or indirectly, act as a proprietor, investor, director, officer, employee, substantial stockholder,
consultant, or partner in any business that directly or indirectly competes, at the relevant determination date, with the business of
the Company, any Investor or any of their respective Affiliates in any geographic area where the Company or its Affiliates
manufactures, produces, sells, leases, rents, licenses or otherwise provides products or services,
(iii) at any time during the Management Stockholder’s employment with the Company or its subsidiaries and for a period
of two years thereafter, directly or indirectly (A) solicit customers or clients of the Company, any of its subsidiaries, the
Investors or any of their respective Affiliates to terminate their relationship with the Company, any of its subsidiaries, the
Investors or any of their respective Affiliates or otherwise solicit such customers or clients to compete with any business of the
Company, any of its subsidiaries, the Investors or any of their respective Affiliates or (B) solicit or offer employment to any
person who is, or has been at any time during the twelve (12) months immediately preceding the termination of the Management
Stockholder’s employment employed by the Company or any of its Affiliates; provided that in each of (ii) and (iii) above, such
restrictions shall not apply with respect to any Investor or any of their Affiliates that is not engaged in any business that
competes, directly or indirectly, with the Company or any of its subsidiaries. If the Management Stockholder is bound by any
other agreement with the Company regarding the use or disclosure of Confidential Information, the provisions of this Agreement
shall be read in such a way as to further restrict and not to permit any more extensive use or disclosure of Confidential
Information. Notwithstanding the foregoing, for the purposes of Section 23(a)(ii), the Management Stockholder may, directly or
indirectly own, solely as an investment, securities of any Person engaged in the business of the Company or its Affiliates which
are publicly traded on a national or regional stock exchange or quotation system or on the over-the-counter market if the
Management Stockholder (I) is not a controlling person of, or a member of a group which controls, such person and (II) does
not, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) Notwithstanding clause (a) above, if at any time a court holds that the restrictions stated in such clause (a) are
unreasonable or otherwise unenforceable under circumstances then existing, the parties hereto agree that the maximum period,
scope or geographic area determined to be reasonable under such circumstances by such court will be substituted for the stated
period, scope or area. Because the Management Stockholder’s services are unique and because the Management Stockholder has
had access to Confidential Information, the parties hereto agree that money damages will be an inadequate remedy for any breach
of this Agreement. In the event of a breach or threatened breach of this Agreement, the Company or its successors or assigns may,
in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions hereof (without the posting of
a bond or other security).
(c) In the event that the Management Stockholder breaches any of the provisions of Section 23(a), in addition to all other
remedies that may be available to the Company, the Management Stockholder shall be required to pay to the Company any
amounts actually paid to him or her by the Company in respect of any repurchase by the Company of any Options held by such
Management Stockholder and, with respect to Stock, the Management Stockholder shall be required to pay to the Company such
amounts, if any, that the Management Stockholder received in excess of the price paid by the Management Stockholder in
acquiring such Stock, on a net after-tax basis.
24 Effectiveness. Except for Sections 1, 2(a), 2(f), 2(g), 3, 8, 13, 14, 15, 16, 18, 20 and 22 and this Section 24, which shall
become effective as of the execution and delivery of this Agreement by the Parties, this Agreement shall become effective upon the
Effective Time and prior thereto shall be of no force or effect. If the Merger Agreement shall be terminated in accordance with its
terms prior to the Effective Time, this Agreement shall automatically terminate and be of no force or effect.