Exhibit 10.4


 


NEW OMAHA HOLDINGS L.P.


 


June 27, 2007


 


Mr. Michael Capellas


43 Surfsong Road


Kiawah Island, SC 29455


 


Dear Michael:


 


We are all
extremely pleased that you have agreed to accept our offer of employment,
effective July 9, 2007 (“Commencement Date”). As we discussed, following the
closing of the transaction contemplated by that certain Agreement and Plan of
Merger by and among New Omaha Holdings L.P., Omaha Acquisition Corporation and
First Data Corporation, dated April 1, 2007 (the “Merger Agreement”), New Omaha
Holdings L.P. will cause its wholly owned subsidiary, New Omaha Holdings
Corporation (the “Company”), and First Data Corporation (“FDC”) to assume this
Letter Agreement and appoint you Chairman and Chief Executive Officer (“CEO”)
of FDC and the Company. Until such time, you will serve as a consultant to New
Omaha Holdings L.P. The terms and conditions of this letter (the “Letter
Agreement”) shall govern your employment with the Company, FDC and New Omaha
Holdings L.P.


 


On the Closing
Date (as defined in the Merger Agreement), you will enter into other agreements
with the Company and the investors therein, including, but not limited to, a
management stockholder’s agreement (substantially in the form attached hereto
as Annex A), a sale participation agreement (substantially in the form attached
hereto as Annex B) and certain stock option agreements (substantially in the
form attached hereto as Annex C) to be granted pursuant to the 2007 Stock
Incentive Plan for Key Employees of the Company and its Affiliates
(substantially in the form attached hereto as Annex D) (the “2007 Plan” and,
together, with such other agreements, the “Equity Agreements”). Such Equity
Agreements will be substantially in the form executed with other executives of
the Company, with such changes as are necessary to reflect the terms herein. The
nature of your employment is at-will, and may be terminated by you or the
Company for any or no reason at any time.


 


With respect
to the terms of your employment with FDC, you shall have the customary duties,
responsibilities and authorities of a Chairman and CEO at a corporation of a
similar size and nature. You will report directly to the Board of Directors of FDC
(the “Board”). By executing this Letter Agreement, you acknowledge that you
will devote your full business time as Chairman and CEO of FDC and you will
perform your duties to FDC at the current or future designated FDC corporate
headquarters or at such other location mutually agreed upon between FDC and
you, unless your duties require that you perform such duties in other
locations. Notwithstanding anything herein to the contrary, you will not be
prohibited from continuing to serve on the boards of the entities set forth on
Exhibit A hereto.


 


With respect
to compensation for your services as CEO of FDC and the Company, you will
receive the following compensation and benefits after the Closing Date, from
which the


 


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payor shall be entitled to
withhold any amount required by law, for so long as you continue to provide
such services:


 


(i)  FDC shall pay you an annual
base salary of $1,200,000 (your “Base Salary”). Such Base Salary shall be
payable in accordance with the normal payroll practices of the FDC; provided,
that any portion of your Base Salary earned prior to the Closing Date will be
paid in arrears on or as soon as practicable after the Closing Date. Any
increase in your Base Salary shall be at the discretion of the Compensation Committee
of the Board;  provided, that no decrease
shall be made to your Base Salary. Upon termination of your employment by FDC
without Cause or by you as a result of Good Reason (each as defined in the
Management Stockholders Agreement attached as Annex A hereto) after the Closing
Date, you will be entitled to a payment of two times the sum of (x) your Base
Salary and (y) target annual bonus; provided, that any such severance
will be reduced on a dollar for dollar basis by the amount in excess of the
amount paid by you, if any, realized, upon the disposition, by whatever means so
disposed, including but not limited to by put, call, sale, transfer or
assignment, of your (a) equity investment in the Company and (b) options to
purchase shares of Company stock granted to you.


 


(ii)  FDC will pay you a pro
rated guaranteed annual bonus for fiscal year 2007, based on pro ration from
July 9, 2007, of a full-year annual bonus of $1,800,000 (the “2007 Bonus”),
payable at such time as annual bonuses are paid in accordance with normal FDC
practice and subject to your continued employment with FDC through such payment
date. For all fiscal years after 2007, you will be eligible to earn a target
annual bonus of 150% of your Base Salary, subject to FDC achieving certain
predetermined performance goals established by the Compensation Committee of
the Board in consultation with you.


 


(iii)  FDC will provide you with
coverage under all retirement and welfare benefit programs, plans and practices
and other fringe benefits which FDC makes available to its senior management
(commensurate with your position in FDC and to the extent permitted under any
such employee benefit plan), in accordance with the terms thereof. In addition,
FDC or the Company will provide you with travel on a private airplane when you
travel on business on behalf of FDC or the Company or when doing so otherwise
serves FDC’s or the Company’s business interests.


 


At or as soon
as practicable after Closing, you will purchase $15,000,000 worth of shares of
common stock of the Company (“Common Stock”)(1)  at $5.00 per share,
the price paid by New Omaha Holdings L.P. for such class of stock, pursuant to
the execution of a management stockholder’s agreement with the Company
(substantially in the form attached hereto as Annex A), and subject to your
execution of a sale participation agreement with certain investors in the
Company (substantially in the form attached hereto as Annex B). On the date
that you make such an investment, you will also receive corresponding stock
option grants (substantially in the form attached hereto as Annex D) to
purchase (i) 6,000,000 shares of Common Stock having an


 






(1) The ultimate entity in
which you will invest and receive options is subject to change pending
corporate structure determination. 


 


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aggregate exercise price equal
to $30,000,000 (based on a per share exercise price equal to $5.00), vesting in
equal installments on each of the first four anniversaries of the Closing Date,
(ii) 6,000,000 shares of Common Stock having an aggregate exercise price equal
to $30,000,000 (based on a per share exercise price equal to $5.00), vesting
upon the achievement by the Company of certain predetermined performance
hurdles, and (iii) 1,714,285 shares of Common Stock having an aggregate exercise
price equal to $15,000,000 (based on a per share exercise price equal to $8.75)
vesting in equal installments on each of the first four anniversaries of the
Closing Date. All such shares of purchased Common Stock and any shares received
upon exercise of any of the options discussed herein shall be subject to the
restrictions and conditions set forth in the Equity Agreements.


 


Any
controversy or claim arising out of or relating to this Letter Agreement or the
breach of this Letter Agreement that cannot be resolved by you, FDC and the
Company, including any dispute as to the calculation of your benefits or any
payments hereunder, shall be submitted to arbitration in New York, New York, in
accordance with the procedures of the American Arbitration Association, which
arbitration shall be a binding and conclusive settlement of any such claims or
disputes. This Letter Agreement and any dispute thereunder shall be construed,
interpreted and governed in accordance with the laws of the State of New York
without reference to rules relating to conflicts of law. Each party shall bear
the costs of any legal fees and other fees and expenses which may be incurred
in respect of enforcing its respective rights under this Letter Agreement.


 


FDC and the
Company will indemnify you for all acts or omissions occurring while you are an
employee of FDC or the Company or a member of the Board of either to the
maximum extent provided under their respective charters, by-laws, and
applicable law. The Company and FDC will insure you under a policy of directors
and officers liability insurance during your employment and thereafter to the
same extent as provided to active members of the Board.


 


This Letter
Agreement will automatically terminate upon the termination of the Merger Agreement,
in accordance with the terms thereof, without any further action of the part of
the parties hereto.


 


This Letter
Agreement may be executed in counterparts.


 


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If the
foregoing terms and conditions are acceptable and agreed to by you, please sign
on the line provided below to signify such acceptance and agreement and return
the executed copy to the undersigned.


 


	
   

  	
  NEW OMAHA
  HOLDINGS L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott
  Nuttall

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Scott
  Nuttall

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  
	
  Accepted and
  Agreed

  	
   

  
	
   

  	
   

  
	
  /s/ Michael
  Capellas

  	
   

  	
   

  
	
  Michael
  Capellas

  	
   

  
					



 


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In accordance with the first
paragraph of that certain letter agreement by and between Michael Capellas and
New Omaha Holdings L.P., dated June 27, 2007 (the “Agreement”) the undersigned
hereby expressly assume the Agreement and all obligations contained therein,
effective as of this 24th day of September, 2007.


 


	
   

  	
  NEW OMAHA
  HOLDINGS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tagar C.
  Olson

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Tagar C.
  Olson

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST DATA
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stanley
  J. Andersen

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
  Stanley J.
  Andersen

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President and Assistant Secretary

  	
   

  
	
   

  	
   

  
	
  Accepted and
  Agreed

  	
   

  
	
   

  	
   

  
	
  /s/ Michael
  Capellas

  	
   

  	
   

  
	
  Michael
  Capellas

  	
   

  
					



 


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Exhibit A


 


Cisco Systems, Inc.


Boys and Girls Club of America


Deutsche Bank Trust Company
Americas (Advisory Board)


 


6