First Data 2014 Annual Report Download - page 165

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 a result of the
uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 8(iii) and the Eligible Executive thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any
such Underpayment shall be paid by the Company to or for the benefit of the Eligible Executive within five days of receipt of the Accounting Firm’s
determination.
(iii) The Eligible Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10
business days after the Eligible Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid. The Eligible Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Eligible Executive gives such notice to the Company (or such shorter period ending on the date that any payment
of taxes with respect to such claim is due). If the Company notifies the Eligible Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Eligible Executive shall:
(a) give the Company any information reasonably requested by the Company relating to such claim;
(b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the
Company;
(c) cooperate with the Company in good faith in order effectively to contest such claim; and
(d) permit the Company to participate in any proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Eligible Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 8(iii), the Company shall control all proceedings taken in connection with such contest and, at
its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Eligible Executive to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Eligible Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, that if the Company directs the Eligible
Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Eligible Executive on an interest-
free basis and shall indemnify and hold the Eligible Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest
or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and
provided further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Eligible Executive with
respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Eligible Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.