First Data 2012 Annual Report Download - page 186

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;
p
rovided that in each of (ii) and (iii) above, such restrictions shall not apply with respect to any Investor or any o
f
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