First Data 2012 Annual Report Download - page 198

8. Certain Additional Payments
(i) Notwithstanding anything to the contrary set forth herein, but subject to clause (v) below, if it is determined that any
payments or benefits provided by the Company to or on behalf of an Eligible Executive (whether pursuant to the
terms of this Policy or otherwise) (any such payments or benefits being referred to in this Section as “Payments”),
b
ut determined without taking into account any additional payments required under this Section, would be subject to
the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by the Eligible Executive with
respect to such excise tax (such excise tax, together with any such interest and penalties, collectively referred to
herein as the “Excise Tax”), then the Eligible Executive will be entitled to receive an additional payment (a “Gross-
Up Payment”) in an amount so that after payment by the Eligible Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and
penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Eligible
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing, if it is determined that the Eligible Executive is entitled to a Gross-Up Payment, but
that the Payments to the Eligible Executive do not exceed 110% of the amount which is one dollar less than the
smallest amount that would give rise to any Excise Tax (the “Reduced Amount”), then no Gross-Up Payment will
be made to the Eligible Executive and the Payments shall be reduced to the Reduced Amount. In such event, the
reduction will occur in the following order: (i) reduction of cash payments; (ii) cancellation of accelerated vesting of
equity awards; and (iii) reduction of employee benefits. If acceleration of vesting of compensation from an Eligible
Executive’s equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the
date of grant, unless the Eligible Executive elects in writing a different order for cancellation, provided, however,
such election by the Eligible Executive shall apply only to equity awards that do not constitute nonqualified deferred
compensation within the meaning of Code Section 409A.
(ii) Subject to the provisions of Section 8(iii), all determinations required to be made under this Section, including
whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions
to be used in arriving at such determination, will be made by the independent registered public accounting firm
engaged by the Company for general audit purposes as of the day prior to the effective date of the Change in Control
(the “Accounting Firm”). In the event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the Company shall appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). The Accounting Firm shall provide its calculations, together with detailed
supporting documentation, to the Company and the Eligible Executive within fifteen (15) calendar days after the
date on which the Eligible Employee’s right to Payment is triggered (if requested at that time by the Company or the
Eligible Executive) or such other time as requested by the Company or the Eligible Executive. All fees and expenses
of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 8, shall be paid by the Company to the Eligible Executive within five days of the receipt of the
Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Eligible
Executive, it shall furnish the Eligible Executive with a written opinion that no Excise Tax will be imposed. Any
good faith determination by the Accounting Firm shall be binding upon the Company and the Eligible Executive. As
Severance Benefit, a lump sum approximately equal to the difference in cost between COBRA premiums and
active employee premiums for period of time remaining, if any, in the Severance Period of COBRA coverage
calculated by the Company in its discretion as of the Termination Date, which payment shall constitute taxable
income to the Eligible Executive and which shall be paid no later than the 30th day following the expiration of
the first year of the Severance Period. An Eligible Executive receiving Severance Benefits under this Policy shall
also be entitled to receive during the Severance Period any financial planning benefits which the Eligible
Executive was receiving as of the Termination Date, but shall not be entitled to receive any other perquisites after
such date. Notwithstanding the foregoing, the executive’s continued benefits coverage under this subsection shall
cease as of the date the executive becomes eligible to receive such benefits under a subsequent employer’s benefit
programs. Eligible Executives receiving Severance Benefits under this Policy are not eligible to continue
contributions to the Company’s qualified retirement plans or nonqualified deferred compensation program.
(iii) Incentive Awards. If an Eligible Executive’s employment with the Company is terminated after the Effective Date
for any reason set forth in Section 5, outstanding cash incentive awards granted to the Eligible Executive that are
eligible to become fully vested and payable solely contingent upon the Eligible Executive’s continued
employment and the passage of time shall continue to vest and be payable in accordance with their terms,
notwithstanding the executive’s earlier termination of employment.