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EXHIBIT
10.10
MANAGEMENT
AGREEMENT
This Management Agreement
(this “ Agreement ”) is entered into as of
September 24, 2007 among First Data Corporation (the “
Company ”), Kohlberg Kravis Roberts & Co.
L.P. (the “ Manager ”) and New Omaha Holdings
L.P. (“ Parent ”). Any capitalized terms herein
not otherwise defined shall have the meaning set forth in the
Amended and Restated Limited Partnership Agreement of New Omaha
Holdings L.P., dated as of September 24, 2007 (the “
Partnership Agreement ”).
RECITALS
WHEREAS, each of Parent and
Omaha Acquisition Corporation, a Delaware corporation (“
Omaha Acquisition ”), has been formed for the purpose
of engaging in a transaction in which Omaha Acquisition will be
merged with and into the Company, with the Company surviving (the
“ Merger ”), pursuant to an Agreement and Plan
of Merger among Parent, Omaha Acquisition and the Company dated as
of April 1, 2007 (the “ Merger Agreement
”).
WHEREAS, to enable Parent and
Omaha Acquisition to engage in the Merger and related transactions,
the Manager provided financial and structural advice and analysis
as well as assistance with due diligence investigations and
negotiations (the “ Financial Advisory Services
”); and
WHEREAS, the Company wants to
retain the Manager to provide certain management, consulting and
financial and other advisory services to the Company, and the
Manager is willing to provide such services, on the terms set forth
below.
AGREEMENT
NOW THEREFORE, in
consideration of the mutual covenants contained herein, the parties
hereto, intending to be legally bound, hereby agree as
follows:
1. Services . The
Manager hereby agrees that, during the term of this Agreement (the
“ Term ”), it will provide the following
management, consulting and financial and other advisory services to
the Company as requested from time to time by the Board of
Directors of the Company:
(a) advice in connection with
the negotiation of agreements, contracts, documents and instruments
relating to the Company’s financing;
(b) financial, managerial and
operational advice in connection with the Company’s business,
including, without limitation, advice with respect to the
development and implementation of strategies for improving the
operating and financial performance of the Company and its
subsidiaries;
(c) advice in connection with
financing, acquisition, disposition, merger, combination or change
of control transactions involving the Company or any of its
subsidiaries (however structured); and
(d) such other services
(which may include financial and strategic planning and analysis,
consulting services, human resources and executive recruitment
services and other services) as the Manager and the Company may
from time to time agree in writing.
The Manager shall devote such time and
efforts to the performance of services contemplated hereby as the
Manager deems reasonably necessary or appropriate; provided
, however , that no minimum number of hours is required to
be devoted by the Manager on a weekly, monthly, annual or other
basis. The Company acknowledges that the Manager’s services
are not exclusive to the Company and that the Manager will render
similar services to any other individual or corporation,
association, partnership, limited liability company, joint venture,
joint stock or other company, business trust, trust, organization,
or other entity of any kind (each, a “ Person
”). The Manager and the Company understand that the Company
may, at times, engage one or more investment bankers or financial
advisers to provide services in addition to, but not in lieu of,
services provided by the Manager under this Agreement. In providing
services to the Company, the Manager will act as an independent
contractor and it is expressly understood and agreed that this
Agreement is not intended to create, and does not create, any
partnership, agency, joint venture or similar relationship and that
no party has the right or ability to contract for or on behalf of
any other party or to effect any transaction for the account of any
other party.
2. Payment of Fees
.
(a) The Company will pay to
the Manager (or such affiliate(s) as the Manager may designate), in
consideration of the Manager providing the Financial Advisory
Services, an aggregate transaction fee (the “ Transaction
Fee ”) in the amount of $260,000,000 plus the amount
calculated in accordance with Schedule 1 attached hereto, such fee
being payable at the closing of the Merger (provided that the
amount calculated in accordance with Schedule 1 shall be payable
promptly following the determination of such amount). During the
Term, the Company will pay to the Manager (or such affiliate(s) as
the Manager may designate), an annual fee (the “ Periodic
Fee ”) of $20,000,000, which amount shall increase by
5.0% annually, payable in quarterly installments in advance at the
beginning of each calendar quarter. The initial Periodic Fee shall
be pro rated to reflect the portion of the current fiscal quarter
that will elapse after the Merger. The final quarterly Periodic Fee
payment shall be pro rated to reflect the portion of the final
quarter prior to the end of the Term, as applicable. The Manager
represents and warrants to the Company that the Periodic Fee is
consistent with the rates of comparable fees charged by the Manager
and its affiliated management companies with respect to other
portfolio companies and, to the best knowledge of the Manager, is
consistent with the fee rates of investment managers not affiliated
with the Manager in transactions comparable to the size, type and
complexity of the transactions contemplated by the Merger
Agreement.
(b) The Company will, for
each financing, acquisition, disposition, merger, combination or
change of control transaction involving the Company or any of its
subsidiaries (however structured) pay to the Manager (or such
affiliate(s) as the Manager may designate) an aggregate fee (the
“ Subsequent Fee ”) in connection with each such
transaction equal to a percentage of the gross transaction value
(including the purchase price paid (whether in cash or other
property) and all liabilities assumed or otherwise included in the
transaction) of such transaction consistent with amounts charged by
investment banks or advisory firms not affiliated with the Manager
for comparable services, or such lesser other amount as may be
mutually agreed by the Company and the Manager, such fee to be due
and payable for the foregoing services at the closing of such
transaction and, in the case of financing transactions, whether or
not any such financing is actually committed or drawn
upon.
3. Term . This
Agreement shall continue in full force and effect until
December 31, 2019; provided that this Agreement shall
be automatically extended each December 31 for an additional
year unless the Company provides written notice of its desire not
to automatically extend the term of this Agreement to the Manager
at least 90 days prior to such December 31; provided ,
however , that this Agreement shall terminate automatically
upon the consummation of an initial public offering unless the
Manager determines otherwise and this Agreement may be terminated
at any time by mutual consent of the parties hereto. In the event
of a termination of this Agreement, the Company shall pay the
Manager (or such affiliate(s) as the Manager may designate)
(x) all unpaid Periodic Fees (pursuant to Section 2(b)
above), Subsequent Fees (pursuant to Section 2(c) above) and
expenses (pursuant to Section 4(a) below) due with respect to
periods prior to the date of termination plus (y) the net
present value (using a discount rate equal to the then yield as of
such termination date on U.S. Treasury Securities of like maturity
based on the time such payments would have been due) of the
Periodic Fees that would have been payable with respect to the
period from the date of termination until the expiration date in
effect immediately prior to such termination. Sections 4 and 5 of
this Agreement and any and all accrued and unpaid obligations under
Section 2 shall survive any termination of this Agreement with
respect to matters occurring before, on or after the date of such
termination.
4. Expenses;
Indemnification .
(a) Expenses . The
Company will pay on demand all Reimbursable Expenses. As used
herein, “ Reimbursable Expenses ” means
(i) all expenses incurred or accrued prior to the date on
which the transactions contemplated by the Merger Agreement are
consummated (the “ Closing Date ”) by the
Manager or its affiliates in connection with this Agreement, the
Merger or any related transactions, consisting of their respective
out-of-pocket expenses for travel and other incidentals in
connection with such transactions and the out-of-pocket expenses
and the fees and charges of outside counsel and any other
consultants or advisors retained by the Manager in connection with
such transactions, (ii) reasonable out-of-pocket expenses
incurred from and after the Closing Date relating to its affiliated
funds’ or affiliated entities’ direct or indirect
investment in, the operations of, or the services provided by the
Manager to, the Company or any of its affiliates from time to time
(including, without limitation, all air travel (by first class on a
commercial airline, by charter or by privately owned airplane, as
determined by the Manager) and other travel related expenses),
(iii) all fees, costs and expenses of any administrators,
agents,
custodians, advisors,
attorneys and accountants of Parent (including audit and
certifi
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