First Data 2012 Annual Report Download - page 176

(ii) “Affiliate” means with respect to any Person, any entity directly or indirectly controlling, controlled by
or under common control with such Person.
(iii) “Agreement” shall have the meaning set forth in the introductory paragraph.
(iv) “Base Price” shall have the meaning set forth in Section 1(a) hereof.
(v) “Board” shall mean the board of directors of the Company.
(vi) “Call Events” shall mean, collectively, Section 6(a) Call Events, Section 6(b) Call Events and Section 6
(c) Call Events.
(vii) “Call Notice” shall have the meaning set forth in Section 6(d) hereof.
(viii) “Call Period” shall have the meaning set forth in Section 6(d) hereof.
(ix) “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.
(x) “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;