Exhibit 10.23
AMENDMENT NO. 1
TO THE
FIRST DATA CORPORATION
SEVERANCE/CHANGE IN CONTROL POLICY
(EXECUTIVE COMMITTEE
LEVEL)
(As Amended and Restated
Effective as of September 24, 2007)
This Amendment No. 1 is executed as
of the 23 day of December 2008, by First Data Corporation (the
“Company”).
WHEREAS, the Company sponsors the
First Data Corporation Severance/Change in Control Policy
(Executive Committee Level) (the “Plan”);
WHEREAS, the Company now desires to
amend the Plan to comply with the requirements of Section 409A of
the Internal Revenue Code of 1986, as amended, and the final
Treasury Regulations issued thereunder;
NOW, THEREFORE, the Plan is hereby
amended, effective as of January 1, 2009, as follows:
1. Amendment to Section 8(i)
. The last two sentences of Section 8(i) shall hereby be amended
and restated to read as follows:
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.
2. Amendment to Section 8(ii)
. The last sentence of Section 8(ii) shall hereby be amended and
restated to read as follows:
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.
3. New Section 8(vi) . The
Plan shall hereby be amended to add the following Section 8(vi) to
the Plan hereof:
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.
4. Amendment to Section 9 .
Section 9 shall hereby be amended and restated to read as
follows:
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, noncomplete, nondisclosure, or
confidentiality agreements the Eligible Executive may have executed
while employed by the Company.
5. Amendment to Section 10 .
Section 10 shall hereby be amended and restated to read as
follows:
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)(
