First Data 2012 Annual Report Download - page 200

(v) This Section 8 shall not apply with respect to any Payment that would otherwise be subject to the Excise Tax if such
Excise Tax would be avoided by obtaining stockholder approval of the Payment in the manner prescribed by
Section 280G of the Code and regulations thereunder.
(vi) Any payments that the Company is required to pay to or on behalf of the Executive pursuant to this Section 8 shall
be paid within the time periods specified under Section 8; provided, that in no event shall such payments be made
later than the end of the calendar year following the calendar year in which the corresponding taxes are remitted.
9. Requirement of Release
The provision of Severance Benefits under this Policy is conditioned upon the Eligible Executive timely signing an
Agreement and Release (in a form satisfactory to the Company) which will include restrictive covenants and a
comprehensive release of all claims. The Eligible Executive must sign the Agreement and Release within fifty (50) days
following the date of the termination of the Eligible Executive’s employment (which Agreement and Release shall be
delivered to the eligible Executive within five (5) days following the date of such termination). In this Agreement and
Release, the Eligible Executive will be asked to release the Company and its employees from any and all claims the
Eligible Executive may have against them, including but not limited to any contract, tort, or wage and hour claims, and
any claims under Title VII, the ADEA, the ADA, ERISA, and other federal, state or local laws. Under the Agreement
and Release, the Eligible Executive must also agree not to solicit business similar to any business offered by the
Company, not to recruit, solicit, or encourage any employee to leave their employment with the Company, not to
disclose any of Company’s trade secrets or confidential information, and not to disparage the Company or its employees
in any way. These obligations are in addition to any other non-solicitation, noncompete, nondisclosure, or confidentiality
agreements the Eligible Executive may have executed while employed by the Company. Should the Eligible Executive
violate any applicable confidentiality, non-competition and non-solicitation provisions following receipt of Severance
Pay, or should the Company discover after termination that the executive engaged while employed by the Company in
conduct that would have resulted in a termination for Cause, the Company shall be entitled to immediately cease
payment of any remaining severance benefits under this Policy and to repayment by the executive of 90% of the total
amount of Severance Pay (provided under Section 7) the Eligible Executive has, as of such date, received under this
Policy.
10. Method of Payment
With respect to cash Severance Benefits which are excludible from the requirements of Code Section 409A under the
involuntary separation pay exception of Treasury Regulation Section 1.409A-1(b)(9)(iii) (the “Excludible Amount”), the
Company reserves the right to determine whether the Excludible Amount shall be paid to an Eligible Executive under the
Policy in a single lump sum or in substantially equal installments, and to choose the timing of such payments; provided
that a lump sum shall be paid within one (1) month following the Eligible Executive’s Termination Date, and
installments shall commence no later than the second month following the Eligible Executive’s Termination Date (or, if
later, the earliest date the Company determines will not result in a violation of Code Section 409A, if applicable), and
shall be paid in full no later than the end of the Severance Period. Any cash Severance Benefits in excess of the
Excludible Amount (the “Excess Amount”) payable to an Eligible Executive under the Policy shall be paid in
substantially equal monthly installments; provided that the installments shall commence no later than the second month
(which shall be in all cases within 90 days) following the Eligible Executive’s Termination Date (or, if later, the earliest
date the Company determines will not result in a violation of Code Section 409A, if applicable), and shall be paid in full
no later than the end of the Severance Period. Notwithstanding the foregoing, in no event shall payment of any
Severance Benefit be made prior to the Eligible Executive’s Termination Date or prior to the effective date of the
Agreement and Release described in Section 9 above or (prior to the earliest date the Company determines will not result
in a violation of Code Section 409A, if applicable). Notwithstanding the foregoing, with respect to the Excess Amount,
if termination of the Eligible Executive’s employment occurs within fifty (50) days of the end of the calendar year, the
first payment will be made on the later of (I) the effective date of the Agreement and Release, or (II) January 2 of the
year following the year in which termination of Eligible Executive’s employment occurs; and provided further that the
first payment shall include any amounts that would have otherwise been due prior to the date of first payment. If an
Eligible Executive dies after becoming eligible for Severance Benefits and executing an Agreement and Release but
before full receipt of all cash Severance Benefits, the remaining cash Severance Benefits (which shall include both the
Excludible Amount and the Excess Amount) will be paid to the Eligible Executive’s estate in one lump sum within
ninety (90) days (but no later than the end of the Severance Period) of the Eligible Executive’s death. If an Eligible
Executive dies after becoming eligible for Severance Benefits but before executing an Agreement and Release, his or her
estate or representative may not execute an Agreement and Release and no Severance Benefits with respect to the
Eligible Executive are payable under this Policy. All payments under this Policy will be net of amounts withheld with