e10vq

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KtV58dT0s23xhUU3wPoWXy+1asSAedfo7dUSAtnrN2LeB0f5Enu4oWHOubrnpset X5K6ykXQ9mKtpOF8GZw6Lg== 0000950123-10-046079.txt : 20100507 0000950123-10-046079.hdr.sgml : 20100507 20100507111652 ACCESSION NUMBER: 0000950123-10-046079 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 20100331 FILED AS OF DATE: 20100507 DATE AS OF CHANGE: 20100507 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOTAL SYSTEM SERVICES INC CENTRAL INDEX KEY: 0000721683 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 581493818 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-10254 FILM NUMBER: 10810798 BUSINESS ADDRESS: STREET 1: 1600 FIRST AVENUE STREET 2: P O BOX 1755 CITY: COLUMBUS STATE: GA ZIP: 31901 BUSINESS PHONE: 7066492267 MAIL ADDRESS: STREET 1: 1600 FIRST AVENUE CITY: COLUMBUS STATE: GA ZIP: 31901 10-Q 1 g23272e10vq.htm FORM 10-Q e10vq

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D. C. 20549

FORM 10-Q


(Mark One)


þ		QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended: March 31, 2010


o		TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from To

Commission file number 1-10254

Total System Services, Inc.

www.tsys.com
(Exact name of registrant as specified in its charter)


Georgia (State or other jurisdiction of incorporation or organization)		58-1493818 (I.R.S. Employer Identification No.)

One TSYS Way, Post Office Box 1755, Columbus, Georgia 31902
(Address of principal executive offices) (Zip Code)

(706) 649-2310
(Registrant’s telephone number, including area code)

(Former name, former address and former fiscal year, if changed since last report)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes o No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):


Large accelerated filer þ		Accelerated filer o		Non-accelerated filer o (Do not check if a smaller reporting company)		Smaller reporting company o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No þ

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.


CLASS Common Stock, $0.10 par value		OUTSTANDING AS OF: May 7, 2010 197,400,167 shares

TOTAL SYSTEM SERVICES, INC.
INDEX


	Page
	Number
Part I. Financial Information
Item 1. Financial Statements
Condensed Consolidated Balance Sheets (unaudited) — March 31, 2010 and December 31, 2009		3
Condensed Consolidated Statements of Income (unaudited) — Three months ended March 31, 2010 and 2009		4
Condensed Consolidated Statements of Cash Flows (unaudited) — Three months ended March 31, 2010 and 2009		5
Notes to Unaudited Condensed Consolidated Financial Statements		6
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations		15
Item 3. Quantitative and Qualitative Disclosures About Market Risk		26
Item 4. Controls and Procedures		28
Part II. Other Information
Item 1A. Risk Factors		29
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds		29
Item 6. Exhibits		29
Signatures		30
Exhibit Index		31
EX-10.1
EX-10.2
EX-10.3
EX-10.4
EX-10.5
EX-10.6
EX-31.1
EX-31.2
EX-32

TOTAL SYSTEM SERVICES, INC.

Part I — Financial Information

Condensed Consolidated Balance Sheets

(Unaudited)


(in thousands, except per share data)	March 31, 2010			December 31, 2009
Assets
Current assets:
Cash and cash equivalents	$	534,487			449,955
Restricted cash		30,348			46,190
Accounts receivable, net of allowance for doubtful accounts and billing adjustments of $5.0 million and $6.8 million at 2010 and 2009, respectively		218,815			231,325
Deferred income tax assets		9,980			11,302
Prepaid expenses and other current assets		78,015			72,124

Total current assets		871,645			810,896
Property and equipment, net of accumulated depreciation and amortization of $303.0 million and $309.1 million at 2010 and 2009, respectively		291,400			289,198
Computer software, net of accumulated amortization of $450.7 million and $482.9 million at 2010 and 2009, respectively		192,400			197,134
Contract acquisition costs, net		123,482			128,038
Goodwill		166,370			168,121
Equity investments		76,021			75,495
Other intangible assets, net of accumulated amortization of $17.3 million and $16.7 million at 2010 and 2009, respectively		13,009			14,132
Other assets		29,716			27,940

Total assets	$	1,764,043			1,710,954

Liabilities
Current liabilities:
Current portion of long-term debt	$	7,057			6,988
Current portion of obligations under capital leases		9,817			6,289
Accrued salaries and employee benefits		15,336			32,457
Accounts payable		29,249			21,729
Other current liabilities		167,191			153,316

Total current liabilities		228,650			220,779
Long-term debt, excluding current portion		190,308			192,367
Deferred income tax liabilities		49,324			47,162
Obligations under capital leases, excluding current portion		36,327			12,756
Other long-term liabilities		44,507			48,443

Total liabilities		549,116			521,507

Equity
Shareholders’ equity:
Common stock — $0.10 par value. Authorized 600,000 shares; 201,336 and 200,860 issued at 2010 and 2009, respectively; 197,598 and 197,180 outstanding at 2010 and 2009, respectively		20,130			20,086
Additional paid-in capital		141,617			139,742
Accumulated other comprehensive income (loss), net		(7,145	)		5,673
Treasury stock, at cost (shares of 3,738 and 3,680 at 2010 and 2009, respectively)		(70,881	)		(69,950	)
Retained earnings		1,117,789			1,080,250

Total shareholders’ equity		1,201,510			1,175,801

Noncontrolling interests in consolidated subsidiaries		13,417			13,646

Total equity		1,214,927			1,189,447

Total liabilities and equity	$	1,764,043			1,710,954

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements

TOTAL SYSTEM SERVICES, INC.

Condensed Consolidated Statements of Income
(Unaudited)


	Three months ended March 31,
(in thousands, except per share data)	2010			2009
Total revenues	$	415,354			408,933


Cost of services		292,191			284,675
Selling, general and administrative expenses		44,092			46,143

Total operating expenses		336,283			330,818

Operating income		79,071			78,115
Nonoperating expenses		(262	)		(1,459	)

Income from continuing operations before income taxes and equity in income of equity investments		78,809			76,656
Income taxes		27,883			27,415

Income from continuing operations before equity in income of equity investments		50,926			49,241
Equity in income of equity investments, net of tax		893			1,043

Income from continuing operations, net of tax		51,819			50,284
Loss from discontinued operations, net of tax		—			(3,343	)

Net income		51,819			46,941
Net income attributable to noncontrolling interests		(492	)		(415	)

Net income attributable to TSYS	$	51,327			46,526


Basic earnings per share (EPS) (Note 13):
Income from continuing operations to TSYS common shareholders	$	0.26			0.26
Loss from discontinued operations to TSYS common shareholders		0.00			(0.02	)

Net income attributable to TSYS common shareholders	$	0.26			0.24


Diluted EPS:
Income from continuing operations to TSYS common shareholders	$	0.26			0.26
Loss from discontinued operations to TSYS common shareholders		0.00			(0.02	)

Net income attributable to TSYS common shareholders	$	0.26			0.24


Amounts attributable to TSYS common shareholders:
Income from continuing operations	$	51,327			49,869
(Loss) income from discontinued operations		—			(3,343	)

Net income	$	51,327			46,526

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements

TOTAL SYSTEM SERVICES, INC.

Condensed Consolidated Statements of Cash Flows
(Unaudited)


	Three months ended March 31,
(in thousands)	2010			2009
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income	$	51,819			46,941
Adjustments to reconcile net income to net cash provided by operating activities:
Net gain (loss) on foreign currency		(247	)		883
Equity in income of equity investments, net of tax		(893	)		(1,043	)
Depreciation and amortization		38,564			39,850
Amortization of debt issuance costs		38			38
Share-based compensation		2,913			5,297
Excess tax benefit from share-based payment arrangements		(111	)		—
Provisions for bad debt expenses and billing adjustments		(658	)		(394	)
Charges for transaction processing provisions		849			1,537
Deferred income tax benefit		3,665			(2,329	)
Loss on disposal of equipment, net		30			7
Changes in operating assets & liabilities:
Accounts receivable		9,874			1,166
Prepaid expenses, other current assets and other long-term assets		2,892			(1,743	)
Accounts payable		8,319			(3,779	)
Accrued salaries and employee benefits		(32,707	)		(25,567	)
Other current liabilities and other long-term liabilities		49,188			37,806

Net cash provided by operating activities		133,535			98,670


CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment, net		(9,170	)		(2,181	)
Additions to licensed computer software from vendors		(3,769	)		(5,932	)
Additions to internally developed computer software		(5,760	)		(5,828	)
Cash used in acquisitions, net of cash acquired		—			(205	)
Additions to contract acquisition costs		(9,914	)		(10,992	)

Net cash used in investing activities		(28,613	)		(25,138	)


CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings of long-term debt		—			2,809
Dividends paid on common stock		(13,797	)		(13,779	)
Repurchase of common stock		(1,075	)		(329	)
Excess tax benefit from share-based payment arrangements		111			—
Principal payments on long-term debt borrowings and capital lease obligations		(3,731	)		(3,622	)
Proceeds from exercise of stock options		109			—

Net cash used in financing activities		(18,383	)		(14,921	)


CASH AND CASH EQUIVALENTS:
Effect of exchange rate changes on cash and cash equivalents		(2,007	)		(1,084	)

Net increase in cash and cash equivalents		84,532			57,527
Cash and cash equivalents at beginning of period		449,955			220,018

Cash and cash equivalents at end of period	$	534,487			277,545


Supplemental cash flow information:
Interest paid	$	304			998

Income taxes paid, net	$	3,682			(467	)

See accompanying Notes to Unaudited Condensed Consolidated Financial Statements

TOTAL SYSTEM SERVICES, INC.
Notes to Unaudited Condensed Consolidated Financial Statements

Note 1 — Basis of Presentation

The accompanying unaudited condensed consolidated financial statements of Total System Services, Inc.^® (TSYS^® or the Company) include the accounts of TSYS and its wholly owned subsidiaries as well as TSYS’ majority-owned foreign subsidiaries. All significant intercompany accounts and transactions have been eliminated in consolidation.

These financial statements have been prepared in accordance with the instructions to Form 10-Q and do not include all information and footnotes necessary for a fair presentation of financial position, results of operations and cash flows in conformity with accounting principles generally accepted in the United States of America. The preparation of the consolidated financial statements requires management of the Company to make a number of estimates and assumptions relating to the reported amounts of assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the period. These estimates and assumptions are developed based upon all information available. Actual results could differ from estimated amounts. All adjustments, consisting of normal recurring accruals, which, in the opinion of management, are necessary for a fair presentation of financial position and results of operations for the periods covered by this report, have been included.

The accompanying unaudited condensed consolidated financial statements should be read in conjunction with the Company’s summary of significant accounting policies, consolidated financial statements and related notes appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009. Results of interim periods are not necessarily indicative of results to be expected for the year.

Certain reclassifications have been made to the 2009 financial statements to conform to the presentation adopted in 2010.

Note 2 — Fair Value Measurement

ASC 820, “Fair Value Measurements and Disclosure,” previously referred to as SFAS No. 157, “Fair Value Measurements,” requires disclosure about how fair value is determined for assets and liabilities and establishes a hierarchy for which these assets and liabilities must be grouped, based on significant level of inputs. The three-tier fair value hierarchy, which prioritizes the inputs used in the valuation methodologies, is as follows:

Level 1 — Quoted prices for identical assets and liabilities in active markets.

Level 2 — Observable inputs other than quoted prices included in Level 1, such as quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets and liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data.

Level 3 — Unobservable inputs for the asset or liability.

In February 2007, the FASB issued authoritative guidance under ASC 825, “Financial Instruments,” previously referred to as SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities.” ASC 825 permits the Company to choose to measure many financial instruments and certain other items at fair value. Upon adoption of the guidance on January 1, 2008, TSYS did not elect the fair value option for any financial instrument it did not currently report at fair value.

Goodwill and certain intangible assets not subject to amortization are assessed annually for impairment in the second quarter of each year using fair value measurement techniques. Specifically, goodwill impairment is determined using a two-step test. The first step of the goodwill impairment test is used to identify potential impairment by comparing the fair value of a reporting unit with its book value, including goodwill. If the fair value of the reporting unit exceeds its book value, goodwill is considered not impaired and the second step of the impairment test is unnecessary. If the book value of the reporting unit exceeds its fair value, the second step of the goodwill impairment test is performed to measure the amount of impairment loss, if any. The second step of the goodwill impairment test compares the implied fair value of the reporting unit’s goodwill with the book value of that goodwill. If the book value of the reporting unit’s goodwill exceeds the implied fair value of that goodwill, an impairment loss is recognized in an amount equal to that excess. The fair value of the reporting unit is allocated to all of the assets and liabilities of that unit as if the reporting unit had been acquired in a business combination and the fair value of the reporting unit was the purchase price paid to acquire the reporting unit.

The estimate of fair value of the Company’s reporting units is determined using various valuation techniques, including using the combination of the income approach and the market approach. The market approach, which contains Level 2 inputs, utilizes readily

available market valuation multiples to estimate fair value. The income approach is a valuation technique that utilizes the discounted cash flow (DCF) method, which includes Level 3 inputs. Under the DCF method, the fair value of the asset reflects the present value of the projected earnings that will be generated by each asset after taking into account the revenues and expenses associated with the asset, the relative risk that the cash flows will occur, the contribution of other assets, and an appropriate discount rate to reflect the value of the invested capital. Cash flows are estimated for future periods based upon historical data and projections by management.

At March 31, 2010, the Company had recorded goodwill in the amount of $166.4 million.

The fair value of the Company’s long-term debt and obligations under capital leases is not significantly different from its carrying value.

Note 3 — Supplementary Balance Sheet Information

Cash and Cash Equivalents

The Company maintains accounts outside the United States denominated in currencies other than the U.S. dollar. All amounts in domestic accounts are denominated in U.S. dollars.

Cash and cash equivalent balances are summarized as follows:


(in thousands)	March 31, 2010		December 31, 2009
Cash and cash equivalents in domestic accounts	$	473,930		403,421
Cash and cash equivalents in foreign accounts		60,557		46,534

Total	$	534,487		449,955

At March 31, 2010 and December 31, 2009, the Company had approximately $534.5 million and $450.0 million, respectively, of cash and cash equivalents of which $36.7 million and $32.2 million was in Money Market accounts that had an original maturity date of 90 days or less. The Company considers cash equivalents to be short-term, highly liquid investments that are both readily convertible to known amounts of cash and so near their maturity that they present insignificant risk of changes in value because of change in interest rates.

Prepaid Expenses and Other Current Assets

Significant components of prepaid expenses and other current assets are summarized as follows:


(in thousands)	March 31, 2010		December 31, 2009
Prepaid expenses	$	26,896	$	14,071
Supplies inventory		8,246		10,285
Other		42,873		47,768

Total	$	78,015	$	72,124

Contract Acquisition Costs, net

Significant components of contract acquisition costs, net of accumulated amortization, are summarized as follows:


(in thousands)	March 31, 2010		December 31, 2009
Payments for processing rights, net of accumulated amortization of $157.5 million and $154.7 million at 2010 and 2009, respectively	$	54,407		59,085
Conversion costs, net of accumulated amortization of $77.4 million and $75.0 million at 2010 and 2009, respectively		69,075		68,953

Total	$	123,482		128,038

Amortization related to payments for processing rights, which is recorded as a reduction of revenues, was $5.8 million and $8.0 million for the three months ended March 31, 2010 and 2009, respectively.

Amortization expense related to conversion costs, which is recorded in other operating expenses, was $4.1 million and $4.0 million for the three months ended March 31, 2010 and 2009, respectively.

Other Current Liabilities

Significant components of other current liabilities are summarized as follows:


(in thousands)	March 31, 2010		December 31, 2009
Deferred revenues	$	42,496		31,243
Accrued expenses		32,698		33,274
Client liabilities		30,017		45,824
Accrued income taxes		17,875		252
Dividends payable		13,818		13,828
Transaction processing provisions		4,244		5,483
Client postage deposits		4,231		3,736
Other		21,812		19,676

Total	$	167,191		153,316

Note 4 — Long-Term Debt

Refer to Note 13 of the Company’s audited financial statements for the year ended December 31, 2009, which are included as Exhibit 13.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, as filed with the SEC, for a discussion regarding long-term debt.

Note 5 — Comprehensive Income

For the three months ended March 31, comprehensive income is summarized below:


	Three months ended March 31, 2010									Three months ended March 31, 2009
	TSYS			Noncontrolling									Noncontrolling
(in thousands)	Shareholders			Interests			Total			TSYS Shareholders			Interests			Total

Net income	$	51,327			492		$	51,819		$	46,526			415		$	46,941
Other comprehensive income (OCI), net of tax:
Foreign currency translation adjustments		(12,855	)		(721	)		(13,576	)		(3,777	)		(587	)		(4,364	)
Change in accumulated OCI related to postretirement healthcare plans		37			—			37			21			—			21

Total	$	38,509			(229	)	$	38,280		$	42,770			(172	)	$	42,598

The income tax effects allocated to and the cumulative balance of accumulated other comprehensive income are as follows:

Beginning Balance

Pretax

Ending Balance

(in thousands)

December 31, 2009

Amount

Tax Effect

Net-of-Tax Amount

March 31, 2010

Foreign currency translation adjustments

6,287

($16,762

)

3,907

($12,855

)

($6,568

)

Change in accumulated OCI related to postretirement healthcare plans

(614

)

(21

)

(577

)

Total

5,673

($16,704

)

3,886

($12,818

)

($7,145

)

Consistent with its overall strategy of pursuing international investment opportunities, TSYS adopted the permanent reinvestment exception under ASC 740, “Income Taxes,” previously referred to as Accounting Principles Board Opinion No. 23 (APB 23) “Accounting for Income Taxes — Special Areas,” with respect to future earnings of certain foreign subsidiaries. Its decision to permanently reinvest foreign earnings offshore means TSYS will no longer allocate taxes to foreign currency translation adjustments associated with these foreign subsidiaries accumulated in other comprehensive income.

Note 6 — Share-Based Compensation

The Company’s Annual Report on Form 10-K for the year ended December 31, 2009, as filed with the SEC, contains a discussion of the Company’s share-based compensation plans and policy.

Share-Based Compensation

TSYS’ share-based compensation costs are included as expenses and classified as cost of services and selling, general, and administrative. TSYS does not include amounts associated with share-based compensation as costs capitalized as software development and contract acquisition costs, as these awards are typically granted to individuals not involved in capitalizable activities. For the three months ended March 31, 2010, share-based compensation was $2.9 million, compared to $5.3 million for the same period in 2009. Included in the $2.9 million amount for 2010 and $5.3 million amount for 2009 is approximately $964,000 and $2.4 million, respectively, related to expensing the fair value of stock options.

Nonvested and Performance Share Awards

During the first three months of 2010, the Company issued 189,934 shares of TSYS common stock with a market value of $3.0 million to certain key employees and non-management members of its Board of Directors under nonvested stock bonus awards for services to be provided in the future by such officers, directors and employees. The market value of the TSYS common stock at the date of issuance is amortized as compensation expense over the vesting period of the awards.

During the first three months of 2009, the Company issued 457,220 shares of TSYS common stock with a market value of $6.0 million to certain key employees and non-management members of its Board of Directors under nonvested stock bonus awards for services to be provided in the future by such officers, directors and employees. The market value of the TSYS common stock at the date of issuance is amortized as compensation expense over the vesting period of the awards.

As of March 31, 2010, there was approximately $13.4 million of total unrecognized compensation cost related to nonvested share-based compensation arrangements. That cost is expected to be recognized over a remaining weighted average period of 2.3 years.

During the first three months of 2008, TSYS authorized a total grant of 182,816 shares of nonvested stock to two key executives with a performance schedule (2008 performance shares). These 2008 performance shares have seven one-year performance periods (2008-2014) during each of which the Compensation Committee establishes an earnings per share goal and, if such goal is attained during any performance period, 20% of the performance shares will vest, up to a maximum of 100% of the total grant. Compensation expense for each year’s award is measured on the grant date based on the quoted market price of TSYS common stock and is expensed on a straight-line basis for the year.

As of March 31, 2010, there was approximately $514,000 of total unrecognized compensation cost related to the 2008 grant of nonvested performance share-based compensation arrangements. That cost is expected to be recognized over the remainder of 2010.

On March 31, 2010, TSYS authorized a total grant of 279,831 performance shares to certain key executives with a performance based vesting schedule (2010 performance shares). These 2010 performance shares have a 2010-2012 performance period for which the Compensation Committee established two performance goals: revenues before reimbursables and income from continuing operations and, if such goals are attained in 2012, the performance shares will vest, up to a maximum of 200% of the total grant. Compensation expense for the award is measured on the grant date based on the quoted market price of TSYS common stock. The Company will estimate the probability of achieving the goals through the performance period and will expense the award on a straight-line basis.

As of March 31, 2010, there was approximately $4.5 million of total unrecognized compensation cost related to the 2010 performance shares compensation arrangement. That cost is expected to be recognized until the end of 2012.

Stock Option Awards

During the first three months of 2010, the Company granted 736,389 stock options to key TSYS executive officers. The average fair value of the option grant was $5.33 per option and was estimated on the date of grant using the Black-Scholes-Merton option-pricing model with the following weighted average assumptions: exercise price of $15.66; risk-free interest rate of 3.77%; expected volatility of 30.0%; expected term of 8.6 years; and dividend yield of 1.79%.

During the first three months of 2009, the Company granted 1,047,949 stock options to key TSYS executive officers. The average fair value of the option grant was $5.31 per option and was estimated on the date of grant using the Black-Scholes-Merton option-pricing model with the following weighted average assumptions: exercise price of $13.11; risk-free interest rate of 3.19%; expected volatility of 42.00%; expected term of 8.6 years; and dividend yield of 2.14%.

As of March 31, 2010, there was approximately $8.0 million of total unrecognized compensation cost related to TSYS stock options that is expected to be recognized over a remaining weighted average period of 2.2 years.

Note 7 — Income Taxes

TSYS is the parent of an affiliated group that files a consolidated U.S. federal income tax return and most state and foreign income tax returns on a separate entity basis. In the normal course of business, the Company is subject to examinations by these taxing authorities unless statutory examination periods lapse. TSYS is no longer subject to U.S. federal income tax examinations for years before 2006 and with a few exceptions, the Company is no longer subject to income tax examinations from state, local or foreign authorities for years before 2001. There are currently no federal tax examinations in progress. However, a number of tax examinations are in progress by the relevant foreign and state tax authorities. Although TSYS is unable to determine the ultimate outcome of these examinations, TSYS believes that its liability for uncertain tax positions relating to these jurisdictions for such years is adequate.

TSYS’ effective tax rate attributable to continuing operations was 35.3% and 35.6% for the three months ended March 31, 2010 and March 31, 2009, respectively. The decreased rate during the March 31, 2010 period was mostly due to changes in the mix of income.

TSYS adopted the provisions of ASC 740, “Income Taxes,” previously referred to as FASB Interpretation No. 48 (FIN 48), “Accounting for Uncertainty in Income Taxes, an Interpretation of FASB Statement No. 109,” on January 1, 2007. This interpretation prescribed a recognition threshold and measurement attribute for the financial statement recognition, measurement and disclosure of a tax position taken or expected to be taken in a tax return. The amount of unrecognized tax benefits did not change significantly during the three months ended March 31, 2010.

TSYS recognizes potential interest and penalties related to the underpayment of income taxes as income tax expense in the condensed consolidated statements of income. Gross accrued interest and penalties on unrecognized tax benefits totaled $0.9 million and $0.7 million as of March 31, 2010 and December 31, 2009, respectively. The total amounts of unrecognized income tax benefits as of March 31, 2010 and December 31, 2009 that, if recognized, would affect the effective tax rates are $4.3 million and $4.2 million (net of the federal benefit on state tax issues), respectively, which include interest and penalties of $0.8 million and $0.6 million. TSYS does not expect any material changes to its calculation of uncertain tax positions during the next twelve months.

Note 8 — Segment Reporting and Major Customers

The Company reports selected information about operating segments in accordance with ASC 280, “Segment Reporting,” previously referred to as SFAS No. 131, “Disclosures about Segments of an Enterprise and Related Information.” The Company’s segment information reflects the information that the chief operating decision maker (CODM) now uses to make resource allocations and strategic decisions. The CODM at TSYS consists of the chairman of the board and chief executive officer, the president and the four senior executive vice presidents.

TSYS provides electronic payment processing and other services to card-issuing and merchant acquiring institutions in the United States and internationally through online accounting and electronic payment processing systems. During the first quarter of 2010, TSYS reorganized its operating segments in a manner that reflects the way the CODM now views the business. The change involved accumulating corporate administration expenses, such as finance, legal, human resources, mergers and acquisitions and investor relations, that existed in all operating segments and categorizing them as Corporate Administration.

North America Services includes electronic payment processing services and other services provided from within the North America region. International Services includes electronic payment processing and other services provided from outside the North America region. Merchant Services includes electronic processing and other services provided to merchant acquiring institutions.


Operating Segments	Three months ended March 31,						Change
(in thousands)	2010			2009			$			%

Revenues before reimbursable items
North America Services	$	215,309			223,782			(8,473	)		(3.8)	%
International Services		76,281			70,584			5,697			8.1	%
Merchant Services		58,663			58,206			457			0.8	%
Intersegment revenues		(5,702	)		(7,126	)		1,424			20.0	%

Revenues before reimbursable items from external customers	$	344,551			345,446			(895	)		(0.3)	%


Total revenues
North America Services	$	254,228			268,789			(14,561	)		(5.4)	%
International Services		79,392			73,802			5,590			7.6	%


Operating Segments	Three months ended March 31,						Change
(in thousands)	2010			2009			$			%
Merchant Services		89,209			75,499			13,710			18.2	%
Intersegment revenues		(7,475	)		(9,157	)		1,682			18.4	%

Revenues from external customers	$	415,354			408,933			6,421			1.6	%


Depreciation and amortization
North America Services	$	20,403			23,230			(2,827	)		(12.2)	%
International Services		8,783			7,584			1,199			15.8	%
Merchant Services		8,585			8,087			498			6.2	%
Corporate Administration		793			577			216			37.4	%

Total depreciation and amortization	$	38,564			39,478			(914	)		(2.3)	%

Segment operating income
North America Services	$	69,788			71,494			(1,706	)		(2.4)	%
International Services		11,283			9,532			1,751			18.4	%
Merchant Services		17,325			15,519			1,806			11.6	%
Corporate Administration		(19,325	)		(18,430	)		(895	)		(4.9)	%

Operating income	$	79,071			78,115			956			1.2	%


							Change
	At March 31, 2010			At December 31, 2009			$			%

Total assets
North America Services	$	1,582,743			1,535,129			47,614			3.1	%
International Services		374,072			379,606			(5,534	)		(1.5)	%
Merchant Services		217,625			215,855			1,770			0.8	%
Intersegment assets		(410,397	)		(419,636	)		9,239			2.2	%

Total assets	$	1,764,043			1,710,954			53,089			3.1	%

Revenues by Geographic Area

Revenues for North America Services and Merchant Services include electronic payment processing and other services provided from the United States to clients domiciled in the United States or other countries. Revenues for International Services include electronic payment processing and other services provided from facilities outside the United States to clients based predominantly outside the United States.

The following geographic data presents revenues based on the domicile of the Company’s customers.


	Three months ended March 31,
(in millions)	2010		2009
United States	$	295.4		300.4
Europe*		62.5		57.8
Canada		36.7		30.6
Japan*		12.2		11.1
Mexico		1.7		2.2
Other		6.9		6.8

Total	$	415.4		408.9


*		Revenues are impacted by movements in foreign currency exchange rates. Refer to the discussion under “Revenues” in the Results of Operations.

The following table reconciles geographic revenues to revenues by reportable segment based on the domicile of the Company’s customers.


	Three months ended March 31,
	North America Services				International Services				Merchant Services
(in millions)	2010		2009		2010		2009		2010		2009
United States	$	206.8		225.6		—		—		88.6		74.8
Europe		0.2		0.2		62.2		57.6		0.1		—
Canada		36.5		30.5		—		—		0.2		0.1
Japan		—		—		12.2		11.1		—		—
Mexico		1.7		2.2		—		—		—		—
Other		2.2		2.4		4.5		4.2		0.2		0.2

Total	$	247.4		260.9		78.9		72.9		89.1		75.1

The Company maintains property and equipment, net of accumulated depreciation and amortization, in the following geographic areas:


(in millions)	At March 31, 2010		At December 31, 2009
United States	$	202.8		203.6
Europe		60.6		60.7
Japan		6.8		6.4
Other		21.2		18.5

Total	$	291.4		289.2

Major Customers

For the three months ended March 31, 2010, the Company had one major customer which accounted for approximately 13.1%, or $54.5 million, of total revenues. For the three months ended March 31, 2009, this major customer accounted for approximately 12.5%, or $51.3 million, of total revenues. Revenues from major customers for the periods reported are primarily attributable to the North America Services and Merchant Services segments.

Note 9 — Supplementary Cash Flow Information

Contract Acquisition Costs

Cash used for contract acquisition costs are summarized as follows:


	Three months ended March 31,
(in thousands)	2010		2009
Conversion costs	$	6,846		8,223
Payments for processing rights		3,068		2,769

Total	$	9,914		10,992

Nonvested Awards

During the first three months of 2010 and 2009, the Company issued shares of common stock to certain key employees and non-management members of its Board of Directors under nonvested stock bonus awards for services to be provided by such key employees and directors in the future. Refer to Note 6 for more information.

Equipment and Software Acquired Under Capital Lease Obligations

The Company acquired equipment and software under capital lease obligations in the amount of $14.9 million during 2010 related to storage and other peripheral hardware. The Company acquired equipment and software under capital lease obligations in the amount of $4.3 million during 2009 related to storage and other peripheral hardware.

Note 10 — Legal Proceedings

flows of the Company if disposed of unfavorably. The Company establishes reserves for litigation and similar matters when those matters present loss contingencies that TSYS determines to be both probable and reasonably estimable in accordance with ASC 450, “Contingencies,” previously referred to as SFAS No. 5, “Accounting for Contingencies.”

Note 11 — Guarantees and Indemnifications

The Company has entered into processing and licensing agreements with its clients that include intellectual property indemnification clauses. The Company generally agrees to indemnify its clients, subject to certain exceptions, against legal claims that TSYS’ services or systems infringe on certain third party patents, copyrights or other proprietary rights. In the event of such a claim, the Company is generally obligated to hold the client harmless and pay for related losses, liabilities, costs and expenses, including, without limitation, court costs and reasonable attorney’s fees. The Company has not made any indemnification payments pursuant to these indemnification clauses. In addition, the Company has indemnification obligations to Synovus Financial Corp. pursuant to the disaffiliation and related agreements entered into by the parties in connection with the spin-off.

The Company has not recorded a liability for guarantees or indemnities in the accompanying condensed consolidated balance sheets, since neither a range nor a maximum amount of potential future payments under such guarantees and indemnities is determinable.

Note 12 — Business Combinations

First National Merchant Solutions

On March 1, 2010, TSYS signed an Investment Agreement with First National Bank of Omaha of Omaha, Nebraska pursuant to which the parties intended to enter into a joint venture arrangement in connection with the acquisition by TSYS of 51-percent ownership of a newly formed company named First National Merchant Solutions, LLC for approximately $150.5 million. First National Merchant Solutions (“FNMS”) is the name under which First National Bank of Omaha conducts its merchant activities. The sale transaction was consummated on April 1, 2010.

FNMS had approximately $74 billion in sales volume in 2009, serving 302,000 merchant outlets. This represents about 56,000 merchants and 246,000 processed and settled merchants. With a 57-year history, FNMS provides complete payment processing and fully customizable Visa- and MasterCard-branded prepaid products for businesses of any size. In 2009, its net revenue was $93 million. The company has 475 employees and will remain headquartered in Omaha, Nebraska.

FNMS will be included in Merchant Services for segment reporting purposes.

Note 13 — Earnings Per Share

In June 2008, the FASB issued authoritative guidance under ASC 260, “Earnings Per Share,” previously referred to as FASB Staff Position EITF 03-6-1, “Determining Whether Instruments Granted in Share-Based Payment Transactions are Participating Securities.” The guidance under ASC 260 holds that unvested share-based payment awards that contain nonforfeitable rights to dividends or dividend equivalents are “participating securities” as defined in ASC 260, previously referred to as EITF 03-6, “Participating Securities and the Two-Class Method under FASB Statement No. 128, ‘Earnings per Share,’” and therefore should be included in computing EPS using the two-class method.

The two-class method is an earnings allocation method for computing EPS when an entity’s capital structure includes two or more classes of common stock or common stock and participating securities. It determines EPS based on dividends declared on common stock and participating securities and participation rights of participating securities in any undistributed earnings.

The following table illustrates basic and diluted EPS under the guidance of ASC 260:


	Three months ended					Three months ended
	March 31, 2010					March 31, 2009
(in thousands, except	Common			Participating		Common			Participating
per share data)	Stock			Securities		Stock			Securities

Basic earnings per share:
Net income	$	51,327					46,526
Less income allocated to nonvested awards		(264	)		264		(361	)		361

Net income allocated to common stock for EPS calculation (a)	$	51,063			264		46,165			361

Average common shares outstanding (b)		196,160			1,016		195,461			1,534

Basic earnings per share (a)/(b)	$	0.26			0.26		0.24			0.24


Diluted earnings per share:
Net income	$	51,327					46,526
Less income allocated to nonvested awards		(263	)		263		(360	)		360

Net income allocated to common stock for EPS calculation (c)	$	51,064			263		46,166			360

Average common shares outstanding		196,160			1,016		195,461			1,534
Increase due to assumed issuance of shares related to common equivalent shares outstanding (d)		86					67

Diluted earnings per share (c)/(d)	$	0.26			0.26		0.24			0.24

The diluted earnings per share calculation excludes stock options and nonvested awards that are convertible into 7.1 million common shares for the three months ended March 31, 2010 and excludes 6.8 million common shares for the three months ended March 31, 2009 because their inclusion would have been anti-dilutive.

Note 14 — Recent Accounting Pronouncements

The Company’s Annual Report on Form 10-K for the year ended December 31, 2009, as filed with the SEC, contains a discussion of recent accounting pronouncements and the expected impact on the Company’s financial statements.

Accounting Standards Update No. 2010-13, “Compensation—Stock Compensation (Topic 718): Effect of Denominating the Exercise Price of a Share-Based Payment Award in the Currency of the Market in Which the Underlying Equity Security Trades (A consensus of the FASB Emerging Issues Task Force)”

In April 2010, the Task Force issued Accounting Standards Update No. 2010-13 (ASU 2010-13), "Compensation—Stock Compensation (Topic 718): Effect of Denominating the Exercise Price of a Share-Based Payment Award in the Currency of the Market in Which the Underlying Equity Security Trades (A consensus of the FASB Emerging Issues Task Force).” The Task Force reached a consensus that an employee share-based payment with an exercise price denominated in the currency of a market in which a substantial portion of the entity’s equity securities trade should be considered an equity classified award assuming all other criteria for equity classification are met. ASU 2010-13 will be effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2010, with early adoption permitted. The Company is currently evaluating the impact of adopting ASU 2010-13 on its financial position, results of operations and cash flows, but has yet to complete its assessment.

Note 15 — Subsequent Events

On April 1, 2010, TSYS consummated its acquisition of 51% of FNMS. Refer to Note 12 for more information regarding the joint venture.

On April 20, 2010, TSYS announced a new stock repurchase plan to purchase up to 10 million shares of TSYS stock.

Management performed an evaluation of the Company’s activity through the date these unaudited financial statements were issued, and has concluded that other than as set forth above there are no significant subsequent events requiring disclosure.

TOTAL SYSTEM SERVICES, INC.

Item 2 — Management’s Discussion and Analysis of Financial Condition and Results of Operations

Financial Overview

Total System Services, Inc.’s (TSYS’ or the Company’s) revenues are derived from providing payment processing, merchant services and related services to financial and nonfinancial institutions, generally under long-term processing contracts. The Company’s services are provided through three of the Company’s operating segments: North America Services, International Services and Merchant Services. Through the Company’s North America Services and International Services segments, TSYS processes information through its cardholder systems to financial institutions throughout the United States and internationally. The Company’s North America Services segment provides these services in the United States to clients in the United States, Canada, Mexico and the Caribbean.

The Company’s International Services segment provides services in England, Japan and Brazil to clients in the United States, Europe, Asia Pacific and Brazil.

The Company’s Merchant Services segment provides merchant services to financial institutions and other organizations, predominately in the United States.

For a detailed discussion regarding the Company’s Operations, see “Item 7: Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.

A summary of the financial highlights for 2010, as compared to 2009, is provided below:


	Three months ended March 31,
(in millions, except per share data and employees)	2010		2009		Percent Change
Total revenues	$	415.4		408.9		1.6	%
Operating income		79.1		78.1		1.2
Net income attributable to TSYS common shareholders		51.3		46.5		10.3

Cash flows from operating activities		133.5		98.7		35.3
Other:
Accounts on file		323.3		340.4		(5.0	)
Total Cardholder transactions		1,739.5		1,728.9		0.6
Full-time equivalent employees (FTE)		7,433		8,068		(7.9	)

Significant highlights for 2010 include:

Corporate

•

Announced a partnership agreement with Serverside Group to launch TSYS Card Shop, a digital card fulfillment and marketing solution that combines ‘on-demand’ manufacturing processes with industry-leading card management and customization capabilities.

North America

•

Signed an agreement with Caterpillar Financial Services Corporation, the financial arm of Caterpillar Inc. Under terms of the agreement, TSYS’ industry leading TS2^® platform will be used to process commercial credit accounts.

•

Announced the signing of a new long-term agreement with U.S. Bank to continue to support the bank’s commercial card payment services, as well as become its exclusive partner in providing card processing services for the bank’s Consumer Directed Healthcare benefit cards, issued by its Healthcare Payment Solutions business line.

•

Introduced an innovative payment card that allows consumers to choose how they want to pay through the patent-pending TSYS Hybrid^SM product which combines credit and checking payment functionality on a single card, creating an easy-to-manage payment solution that gives consumers greater financial control.

International

•

Announced the signing of a multi-year payment services agreement with Degussa Bank of Germany to provide a broad range of products and services for its corporate and business clients.

•

Signed an agreement to provide B+S Card Service with back-office merchant acceptance services across Europe.

•

Announced it will provide card and payments services to Cedacri through its fully outsourced processing solution.

•

Announced that SBI Sumishin Net Bank, one of the leading internet-based banks in Japan, selected TSYS to process its payment card portfolio.

Merchant

•

Announced the signing of a joint venture agreement with First National Bank of Omaha (FNBO) to form a new company, First National Merchant Solutions, LLC (FNMS).

•

Announced the signing of an agreement to provide authorization and capture services to Central Payment Co. (CPC), one of the fastest-growing, transaction processing providers in the country.

Financial Review

This Financial Review provides a discussion of critical accounting policies and estimates, related party transactions and off-balance sheet arrangements. This Financial Review also discusses the results of operations, financial position, liquidity and capital resources of TSYS and outlines the factors that have affected its recent earnings, as well as those factors that may affect its future earnings.

Critical Accounting Policies and Estimates

There have been no material changes to the Company’s critical accounting policies, estimates and assumptions or the judgments affecting the application of those estimates and assumptions in 2010. For a detailed discussion regarding the Company’s critical accounting policies and estimates, see “Item 7: Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and for a detailed discussion regarding the Company’s risk factors, see “Item 1A: Risk Factors” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.

Related Party Transactions

The Company believes the terms and conditions of transactions between the Company and its equity investments, Total System Services de México, S.A. de. C.V. (TSYS de México) and China UnionPay Data Co., Ltd. (CUP Data), are comparable to those which could have been obtained in transactions with unaffiliated parties. The Company’s margins with respect to related party transactions are comparable to margins recognized in transactions with unrelated third parties.

Off-Balance Sheet Arrangements

Operating Leases: As a method of funding its operations, TSYS employs noncancelable operating leases for computer equipment, software and facilities. These leases allow the Company to provide the latest technology while avoiding the risk of ownership. Neither the assets nor obligations related to these leases are included on the balance sheet.

Contractual Obligations: The total liability (with state amounts tax effected) for uncertain tax positions under ASC 740, “Income Taxes,” previously referred to as FASB Interpretation No. 48 (FIN 48), at March 31, 2010 is $3.6 million. Refer to Note 7 in the Notes to Unaudited Condensed Consolidated Financial Statements for more information on income taxes. The Company is not able to reasonably estimate the amount by which the liability will increase or decrease over time; however, at this time, the Company does not expect a significant payment related to these obligations within the next year.

As indicated in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, total contractual cash obligations at December 31, 2009 were estimated at $415.0 million. These contractual cash obligations include lease payments and software arrangements.

Results of Operations

The following table sets forth certain income statement captions as a percentage of total revenues and the percentage increases or decreases in those items:


	Three months ended March 31,
							Percent Change
	% of Total Revenues						in Dollar Amounts
	2010			2009			2010 vs. 2009
Total revenues		100.0	%		100.0	%		1.6	%

Cost of services		70.3			69.6			2.6
Selling, general and administrative expenses		10.6			11.3			(4.4	)

Total operating expenses		80.9			80.9			1.7

Operating income		19.1			19.1			1.2
Nonoperating expenses		(0.1	)		(0.4	)	nm

Income from continuing operations before income taxes and equity in income of equity investments		19.0			18.7			2.8
Income taxes		6.7			6.7			1.7

Income from continuing operations before equity in income of equity investments		12.3			12.0			3.4
Equity in income of equity investments		0.2			0.3			(14.4	)

Income from continuing operations, net of tax		12.5			12.3			3.1
(Loss) income from discontinued operations, net of tax		0.0			(0.8	)	nm

Net income		12.5			11.5			10.4
Net income attributable to the noncontrolling interests		(0.1	)		(0.1	)	nm

Net income attributable to TSYS		12.4	%		11.4	%		10.3	%

nm = not meaningful

Revenues

The Company generates revenues by providing transaction processing and other payment-related services. The Company’s pricing for transactions and services is complex. Each category of revenue has numerous fee components depending on the types of transactions or services provided. TSYS reviews its pricing and implements pricing changes on an ongoing basis. In addition, standard pricing varies among its regional businesses, and such pricing can be customized further for customers through tiered pricing of various thresholds for volume activity. TSYS’ revenues are based upon transactional information accumulated by its systems or reported by its customers. The Company’s revenues are impacted by currency translation of foreign operations, as well as doing business in the current economic environment.

Total revenues increased $6.4 million, or 1.6%, during the three months ended March 31, 2010 compared to the same period in 2009. The increase in revenues for the three months ended March 31, 2010 includes an increase of $5.8 million related to the effects of currency translation of foreign-based subsidiaries and branches. The Company has included reimbursements received for out-of-pocket expenses as revenues and expenses. The largest reimbursable expense item for which TSYS is reimbursed by clients is postage. The Company’s reimbursable items are impacted with changes in postal rates and changes in the volumes of all mailing activities by its clients. Reimbursable items for the first three months of 2010 were $70.8 million, an increase of $7.3 million or 11.5%, compared to $63.5 million for the same period last year. The increase in reimbursable items was the result of increased in Visa access fees. Excluding reimbursable items, revenues decreased $895,000, or 0.3%, during the three months ended March 31, 2010 compared to the same period in 2009.

Major Customers

A significant amount of the Company’s revenues is derived from long-term contracts with large clients, including a major customer. TSYS derives revenues from providing various processing and other services to these clients, including processing of consumer and commercial accounts, as well as revenues for reimbursable items. The loss of the Company’s major customer could have a material adverse effect on the Company’s financial position, results of operations and cash flows.

In June 2009, Bank of America announced that it formed a new joint venture to provide merchant services. TSYS provides accounting, settlement, authorization and other services to Bank of America pursuant to a contract that expired in April 2010, which services accounted for approximately 6.0% and 4.2% of TSYS’ total revenues for 2010 and 2009, respectively.

Bank of America has indicated to TSYS that it is in the process of formulating its plans with respect to changes in its merchant relationship with TSYS, but has not yet communicated to TSYS the timing or extent of the deconversion from TSYS’ systems. TSYS provides a number of additional services to Bank of America, including commercial card processing, small business card processing and card production services.

Approximately 48% and 31% of the total revenues derived from providing merchant services to Bank of America are attributable to reimbursable items for 2010 and 2009, respectively, which are provided at no margin.

The loss of Bank of America as a merchant services client is not expected to have a material adverse effect on TSYS’ financial position, results of operations or cash flows.

Revenues from the major customer for the periods reported are primarily attributable to the North America Services segment and Merchant Services segment.

Accounts on File (AOF) by Portfolio Type


	At March 31,
	2010				2009
(in millions)	AOF		%		AOF		%		Percent Change

Consumer		182.2		56.3		186.5		54.8		(2.3	)
Commercial		44.1		13.6		44.4		13.0		(0.8	)
Stored value		40.9		12.7		26.0		7.6		57.2
Government services		26.3		8.1		21.7		6.4		21.2
Retail		24.4		7.6		56.5		16.6		(56.7	)
Debit		5.1		1.6		5.2		1.5		(2.9	)
Healthcare		0.3		0.1		0.1		0.1	nm

Total		323.3		100.0		340.4		100.0		(5.0	)

nm = not meaningful

Activity in AOF


	March 2009 to			March 2008 to
(in millions)	March 2010			March 2009
Beginning balance		340.4			364.9
Internal growth of existing clients		24.4			32.0
New clients		29.1			20.0
Purges/Sales		(43.4	)		(35.9	)
Deconversions		(27.2	)		(40.6	)

Ending balance		323.3			340.4

TSYS’ services are provided through three of its operating segments: North America Services, International Services and Merchant Services.

A summary of each segment’s results follows:

North America Services

The North America Services segment provides payment processing and related services to clients based primarily in North America. This segment has three major customers.

Below is a summary of the North America Services segment:


	Three months ended March 31,
(in millions)	2010			2009			Percent Change
Total revenues	$	254.2			268.8			(5.4	)%
Operating income		69.8			71.5			(2.4	)
Operating margin		27.5	%		26.6	%
Key indicators:
AOF		283.1			303.2			(6.6	)
Transactions		1,458.2			1,481.0			(1.5	)

The decline in total segment revenues for the three months ended March 31, 2010, as compared to the same period in 2009, is the result of a decrease in revenues associated with client portfolio deconversions, as well as overall economic conditions causing existing clients to be selective in the services being utilized.

International Services

The International Services segment provides payment processing and related services to clients based primarily outside the North America region. This segment has three major customers.

Below is a summary of the International Services segment:


	Three months ended March 31,
(in millions)	2010			2009			Percent Change
Total revenues	$	79.4			73.8			7.6	%
Operating income		11.3			9.5			18.4
Operating margin		14.2	%		12.9	%
Key indicators:
AOF		40.2			37.2			8.1
Transactions		281.3			247.9			13.5

The increase in total segment revenues for the three months ended March 31, 2010, as compared to the same period in 2009, is the result of $5.9 million positive impact of foreign currency translation.

Merchant Services

The Merchant Services segment provides merchant processing and related services to clients based primarily in the United States. This segment has one major customer.

Below is a summary of the Merchant Services segment:


	Three months ended March 31,
(in millions)	2010			2009			Percent Change
Total revenues	$	89.2			75.5			18.2	%
Operating income		17.3			15.5			11.6
Operating margin		19.4	%		20.6	%
Key indicator:
Point-of-sale transactions		1,320.3			1,226.1			7.7

The increase in total segment revenues for 2010, as compared to 2009, is the result of $13.3 million increase in reimbursable items related to the increase in Visa access fees and internal growth.

Merchant Services segment’s results are driven by the authorization and capture transactions processed at the point-of-sale and clearing and settlement transactions. This segment’s authorization and capture transactions are primarily through dial-up or Internet connectivity.

Refer to the discussion of Bank of America under “Major Customers.”

Operating Expenses

The Company’s operating expenses consist of cost of services and selling, general and administrative expenses. Cost of services describes the direct expenses incurred in producing a particular service for sale, including the cost of direct labor expense in putting the service in saleable condition. Selling, general and administrative expenses are incurred in selling or marketing and for the direction of the enterprise as a whole, including accounting, legal fees, officers’ salaries, investor relations and mergers and acquisitions.

For the first three months of 2010, the Company’s cost of services were $292.2 million, an increase of 2.6%, compared to $284.7 million for the same period last year. During the first three months of 2010, TSYS announced plans to reduce its workforce through attrition and job elimination. As part of the workforce reduction, the Company incurred approximately $2.6 million in severance payments.

For the first three months of 2010, the Company’s selling, general and administrative expenses were $44.1 million, a decrease of $2.1 million, compared to $46.1 million for the same period last year. The decrease was the result of lower expenses associated with share-based compensation.

As a result of the acquisition of FNMS, TSYS incurred $1.1 million of acquisition related costs.

Federal legislation was recently enacted which makes extensive changes to the current system of health care insurance and benefits. The Company has reviewed the legislation and determined that it will not have a material impact upon the Company’s financial position, results of operations or cash flows for 2010. The Company is still in the process of reviewing the impact of the legislation on future periods.

Operating Income

Operating income increased 1.2% for the three months ended March 31, 2010 over the same period in 2009. The Company’s operating profit margin for the three months ended March 31, 2010 was 19.1%, and was also 19.1% for the same period last year.

Nonoperating Income (Expense)

Interest income for the three months ended March 31, 2010 was $191,000, a decrease of $578,000, compared to $769,000 for the same period in 2009. The decrease in interest income is primarily attributable to the decline in interest rates.

Interest expense for the three months ended March 31, 2010 was $929,000, a decrease of $181,000 compared to $1.1 million for the same period in 2009. The decrease in interest expense in 2009 compared to 2008 relates to the decline in interest rates.

For the three months ended March 31, 2010 and 2009, the Company recorded a translation gain of approximately $247,000 and a translation loss of $884,000, respectively, related to intercompany loans and foreign-denominated balance sheet accounts.

Occasionally, the Company will provide financing to its subsidiaries in the form of an intercompany loan, which is required to be repaid in U.S. dollars. For its subsidiaries whose functional currency is something other than the U.S. dollar, the translated balance of the financing (liability) is adjusted upward or downward to match the U.S. dollar obligation (receivable) on the Company’s financial statements. The upward or downward adjustment is recorded as a gain or loss on foreign currency translation.

The Company records foreign currency translation adjustments on foreign-denominated balance sheet accounts. The Company maintains several cash accounts denominated in foreign currencies, primarily in Euros and British Pounds Sterling. As the Company translates the foreign-denominated cash balances into U.S. dollars, the translated cash balance is adjusted upward or downward depending upon the foreign currency exchange movements. The upward or downward adjustment is recorded as a gain or loss on foreign currency translation in the Company’s statements of income. As those cash accounts have increased, the upward or downward adjustments have increased. The Company recorded a net translation gain of approximately $247,000 for the three months ended March 31, 2010, related to the translation of foreign-denominated balance sheet accounts, most of which were cash.

The balance of the Company’s foreign-denominated cash accounts subject to risk of translation gains or losses at March 31, 2010 was approximately $4.2 million, the majority of which is denominated in Euros.

Income Taxes

TSYS’ effective income tax rate attributable to continuing operations for the three months ended March 31, 2010 was 35.3%, compared to 35.6% for the same period in 2009. The calculation of the effective tax rate is income taxes plus income taxes associated with equity income divided by TSYS’ pretax income adjusted for minority interests in consolidated subsidiaries’ net income and equity pre-tax earnings of its equity investments. Refer to Note 7 in the Notes to Unaudited Condensed Consolidated Financial Statements for more information on income taxes.

In the normal course of business, TSYS is subject to examinations from various tax authorities. These examinations may alter the timing or amount of taxable income or deductions or the allocation of income among tax jurisdictions.

TSYS continually monitors and evaluates the potential impact of current events and circumstances on the estimates and assumptions used in the analysis of its income tax positions, and, accordingly, TSYS’ effective tax rate may fluctuate in the future.

Equity in Income of Equity Investments

The Company has two equity investments located in Mexico and China that are accounted for under the equity method of accounting. TSYS’ share of income from its equity in equity investments was $893,000 and $1.0 million for the three months ended March 31, 2010 and 2009, respectively.

Loss from Discontinued Operations, net of tax

Loss from discontinued operations, net of tax, for the three months ended March 31, 2009 was $3.3 million. Final adjustments related to the sale are expected to be included in the financial results for the second quarter of 2010.

Net Income

Net income for the three months ended March 31, 2010 increased 10.4%, or $4.9 million, to $51.8 million, compared to $46.9 million for the same period in 2009.

Net income attributable to TSYS common shareholders for the three months ended March 31, 2010 increased 10.3%, or $4.8 million, to $51.3 million, or basic and diluted earnings per share of $0.26, compared to $46.5 million, or basic and diluted earnings per share of $0.24, for the same period in 2009.

Projected Outlook for 2010

As compared to 2009, TSYS expects its 2010 total revenues to increase by 1% to 3%, revenues before reimbursable items to increase by 1% to 3%, income from continuing operations to decline by 14%-12%, and EPS from continuing operations to decline by 14% — 12% based on the following assumptions: (1) there will be no significant movements in LIBOR and TSYS will not make any significant draws on the remaining balance of its revolving credit facility; (2) anticipated levels in employment, technology and other expenses, which are included in 2010 estimates, will be accomplished; (3) there will be no significant movement in foreign currency exchange rates related to TSYS’ business during 2010; (4) TSYS will not incur significant expenses associated with the conversion of new large clients or acquisitions, or any significant impairment of goodwill or other intangibles; (5) there will be no deconversions of large clients during the year other than as previously announced; and (6) the economy will not worsen during 2010.

Financial Position, Liquidity and Capital Resources

The Condensed Consolidated Statements of Cash Flows detail the Company’s cash flows from operating, investing and financing activities. TSYS’ primary method of funding its operations and growth has been cash generated from current operations and the use of leases. TSYS has occasionally used borrowed funds to supplement financing of capital expenditures, acquisitions and, most recently, the spin-off.

Cash Flows From Operating Activities


	Three months ended March 31,
(in thousands)	2010		2009
Net income	$	51,819		46,941
Depreciation and amortization		38,564		39,850
Other noncash items and charges, net		5,586		3,996
Net change in current and other assets and current and other liabilities		37,566		7,883

Net cash provided by operating activities	$	133,535		98,670

TSYS’ main source of funds is derived from operating activities, specifically net income. The increase in 2010 in net cash provided by operating activities was primarily the result of the net change in current and other assets and current and other liabilities.

Net change in current and other assets and current and other liabilities include accounts receivable, prepaid expenses, other current assets and other assets, accounts payable, accrued salaries and employee benefits, other current liabilities and other liabilities. The change in accounts receivable at March 31, 2010, as compared to December 31, 2009, is the result of timing of collections compared to billings. The change in accounts payable and other liabilities for the same period is the result of the timing of payments, funding of performance-based incentives and payments of vendor invoices.

Cash Flows From Investing Activities


	Three months ended March 31,
(in thousands)	2010			2009
Purchases of property and equipment, net	$	(9,170	)		(2,181	)
Additions to licensed computer software from vendors		(3,769	)		(5,932	)
Additions to internally developed computer software		(5,760	)		(5,828	)
Cash used in acquisitions, net of cash acquired		—			(205	)
Additions to contract acquisition costs		(9,914	)		(10,992	)

Net cash used in investing activities	$	(28,613	)		(25,138	)

The major uses of cash for investing activities have been the addition of property and equipment, primarily computer equipment, the purchase of licensed computer software and internal development of computer software, investments in contract acquisition costs associated with obtaining and servicing new or existing clients, and business acquisitions. The major uses of cash for investing activities in 2010 was for additions to contract acquisition costs, equipment, licensed computer software from vendors and internally developed computer software. The major uses of cash for investing activities in 2009 was for additions of equipment and contract acquisition costs.

Contract Acquisition Costs

TSYS makes cash payments for processing rights, third-party development costs and other direct salary-related costs in connection with converting new customers to the Company’s processing systems. The Company’s investments in contract acquisition costs were $9.9 million for the three months ended March 31, 2010 compared to $11.0 million for the three months ended March 31, 2009.

The Company had cash payments for processing rights of approximately $3.1 million during the three months ended March 31, 2010 compared to $2.8 million for the same three months last year.

Conversion cost additions were $6.8 million and $8.2 million for the three months ended March 31, 2010 and 2009, respectively. The increase in the amount of conversion cost additions for 2010, as compared to 2009, is the result of the timing of conversion activity in 2010 versus 2009.

Cash Flows From Financing Activities


	Three months ended March 31,
(in thousands)	2010			2009
Dividends paid on common stock	$	(13,797	)		(13,779	)
Proceeds from borrowings of long-term debt		—			2,809
Repurchase of common stock		(1,075	)		(329	)
Principal payments on long-term debt borrowings and capital lease obligations		(3,731	)		(3,622	)
Other		220			--

Net cash used in financing activities	$	(18,383	)		(14,921	)

The major use of cash from financing activities has been the payment of dividends and repurchase of common stock. The main source of cash from financing activities has been the occasional use of borrowed funds and the exercise of stock options. The major use of cash from financing activities in 2010 was for the payment of dividends. The major uses of cash from financing activities in 2009 was for the payment of dividends and the repurchase of common stock.

Borrowings

For a detailed discussion regarding the Company’s borrowings, see “Item 7: Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and for a detailed discussion regarding the Company’s long-term debt, see “Note 13 Long-term Debt and Capital Lease Obligations” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009.

Stock Repurchase Plan

On April 20, 2006, TSYS announced that its Board had approved a stock repurchase plan to purchase up to 2 million shares, which at the time represented slightly more than five percent of the shares of TSYS stock held by shareholders other than Synovus. The shares were to be purchased from time to time over a two-year period and would depend on various factors, including price, market conditions, acquisitions and the general financial position of TSYS. Repurchased shares are to be used for general corporate purposes.

With the completion of the spin-off, the TSYS Board of Directors extended to April 2010 TSYS’ current share repurchase program that was set to expire in April 2008 and increased the number of shares that may be repurchased under the plan from 2 million to 10 million. The plan expired on April 19, 2010.

On April 20, 2010, TSYS announced a new stock repurchase plan to purchase up to 10 million shares of TSYS stock. This equates to approximately $162 million of TSYS stock based on current market prices. The shares may be purchased from time to time over the next two years at prices considered attractive to the Company.

Dividends

Dividends on common stock of $13.8 million were paid during the three months ended March 31, 2010 compared to $13.8 million paid during the three months ended March 31, 2009.

Significant Noncash Transactions

Refer to Note 9 of the Notes to Unaudited Condensed Consolidated Financial Statements for more information about supplementary cash flow information.

Foreign Exchange

TSYS operates internationally and is subject to adverse movements in foreign currency exchange rates. Since December 2000, TSYS has not entered into foreign exchange forward contracts to reduce its exposure to foreign currency rate changes. TSYS continues to analyze potential hedging instruments to safeguard it from significant foreign currency translation risks.

Impact of Inflation

Although the impact of inflation on its operations cannot be precisely determined, the Company believes that by controlling its operating expenses, and by taking advantage of more efficient computer hardware and software, it can minimize the impact of inflation.

Working Capital

TSYS may seek additional external sources of capital in the future. The form of any such financing will vary depending upon prevailing market and other conditions and may include short-term or long-term borrowings from financial institutions or the issuance of additional equity and/or debt securities such as industrial revenue bonds. However, there can be no assurance that funds will be available on terms acceptable to TSYS. Management expects that TSYS will continue to be able to fund a significant portion of its

capital expenditure needs through internally generated cash in the future, as evidenced by TSYS’ current ratio of 3.8:1. At March 31, 2010, TSYS had working capital of $643.0 million compared to $590.1 million at December 31, 2009.

Legal Proceedings

The Company is subject to various legal proceedings and claims and is also subject to information requests, inquiries and investigations arising out of the ordinary conduct of its business. In the opinion of management, based in part upon the advice of legal counsel, all matters are believed to be adequately covered by insurance, or if not covered, are believed to be without merit or are of such kind or involve such amounts that would not have a material adverse effect on the financial position, results of operations or cash flows of the Company if disposed of unfavorably. The Company establishes reserves for litigation and similar matters when those matters present loss contingencies that TSYS determines to be both probable and reasonably estimable in accordance with ASC 450.

Recent Accounting Pronouncements

Forward-Looking Statements

Certain statements contained in this filing which are not statements of historical fact constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act (the Act). These forward-looking statements include, among others: (i) TSYS’ expectation that the loss of Bank of America as a merchant services client will not have a material adverse affect on TSYS; (ii) TSYS’ expectation that it will be able to fund a significant portion of its capital expenditure needs through internally generated cash in the future; (iii) TSYS’ earnings guidance for 2010 total revenues, revenues before reimbursable items, income from continuing operations and EPS from continuing operations; (iv)TSYS’ belief with respect to lawsuits, claims and other complaints; (v) the expected financial impact of recent accounting pronouncements; and (vi) TSYS’ expectation with respect to certain tax matters; and the assumptions underlying such statements, including, with respect to TSYS’ earnings guidance for 2010: (a) the economy will not worsen during 2010; (b) there will be no deconversions of large clients during the year other than as previously announced; (c) there will be no significant movement in foreign currency exchange rates related to TSYS’ business during 2010; (d) the anticipated levels in employment, technology and other expenses, which are included in 2010 estimates, will be accomplished; (e) TSYS will not incur significant expenses associated with the conversion of new large clients or acquisitions, or any significant impairment of goodwill or other intangibles; and (f) there will be no significant movements in LIBOR, and no significant draws on the remaining balance of TSYS’ revolving credit facility. In addition, certain statements in future filings by TSYS with the Securities and Exchange Commission, in press releases, and in oral and written statements made by or with the approval of TSYS which are not statements of historical fact constitute forward-looking statements within the meaning of the Act. Examples of forward-looking statements include, but are not limited to: (i) projections of revenue, income or loss, earnings or loss per share, the payment or nonpayment of dividends, capital structure and other financial items; (ii) statements of plans and objectives of TSYS or its management or Board of Directors, including those relating to products or services; (iii) statements of future economic performance; and (iv) statements of assumptions underlying such statements. Words such as “believes,” “anticipates,” “expects,” “intends,” “targeted,” “estimates,” “projects,” “plans,” “may,” “could,” “should,” “would,” and similar expressions are intended to identify forward-looking statements but are not the exclusive means of identifying these statements.

These statements are based upon the current beliefs and expectations of TSYS’ management and are subject to significant risks and uncertainties. Actual results may differ materially from those contemplated by the forward-looking statements. A number of

important factors could cause actual results to differ materially from those contemplated by our forward-looking statements. Many of these factors are beyond TSYS’ ability to control or predict. These factors include, but are not limited to:

	•		movements in LIBOR are greater than expected and draws on the revolving credit facility are greater than expected;

	•		TSYS incurs expenses associated with the signing of a significant client;

	•		internal growth rates for TSYS’ existing clients are lower than anticipated whether as a result of unemployment rates, card delinquencies and charge off rates or otherwise;

	•		TSYS does not convert and deconvert clients’ portfolios as scheduled;

	•		adverse developments with respect to foreign currency exchange rates;

	•		adverse developments with respect to entering into contracts with new clients and retaining current clients;

	•		continued consolidation and turmoil in the financial services and other industries during 2010, including the merger of TSYS clients with entities that are not TSYS processing clients, the sale of portfolios by TSYS clients to entities that are not TSYS processing clients and the nationalization or seizure by banking regulators of TSYS clients;

	•		TSYS is unable to control expenses and increase market share, both domestically and internationally;

	•		adverse developments with respect to the credit card industry in general, including a decline in the use of cards as a payment mechanism;

	•		TSYS is unable to successfully manage any impact from slowing economic conditions or consumer spending;

	•		the impact of potential and completed acquisitions, including the costs associated therewith and their being more difficult to integrate than anticipated;

	•		the costs and effects of litigation, investigations or similar matters or adverse facts and developments relating thereto;

	•		the impact of the application of and/or changes in accounting principles;

	•		TSYS’ inability to timely, successfully and cost-effectively improve and implement processing systems to provide new products, increased functionality and increased efficiencies;

	•		TSYS’ inability to anticipate and respond to technological changes, particularly with respect to e-commerce;

	•		changes occur in laws, regulations, credit card associations rules or other industry standards affecting TSYS’ business which require significant product redevelopment efforts or reduce the market for or value of our products;

	•		successfully managing the potential both for patent protection and patent liability in the context of rapidly developing legal framework for expansive patent protection;

	•		the material breach of security of any of our systems;

	•		overall market conditions;

	•		the loss of a major supplier;

	•		the impact on TSYS’ business, as well as on the risks set forth above, of various domestic or international military or terrorist activities or conflicts;

	•		other risk factors described in the “Risk Factors” and other sections of TSYS’ Annual Report on Form 10-K for the fiscal year ended December 31, 2009 and other filings with the Securities and Exchange Commission; and

	•		TSYS’ ability to manage the foregoing and other risks.

These forward-looking statements speak only as of the date on which they are made and TSYS does not intend to update any forward-looking statement as a result of new information, future developments or otherwise.

TOTAL SYSTEM SERVICES, INC.

Item 3 — Quantitative and Qualitative Disclosures About Market Risk

Foreign Exchange Risk

The Company is exposed to foreign exchange risk because it has assets, liabilities, revenues and expenses denominated in foreign currencies other than the U.S. dollar. These currencies are translated into U.S. dollars at current exchange rates, except for revenues, costs and expenses and net income, which are translated at the average exchange rate for each reporting period. Net exchange gains or losses resulting from the translation of assets and liabilities of foreign operations, net of tax, are accumulated in a separate section of shareholders’ equity entitled “accumulated other comprehensive income, net.” The following represents the amount of other comprehensive loss:


	Three months ended March 31,
(in millions)	2010			2009
Other comprehensive loss	$	(12.9	)		(3.8	)

Currently, the Company does not use financial instruments to hedge exposure to exchange rate changes.

The following table presents the carrying value of the net assets of TSYS’ foreign operations in U.S. dollars at March 31, 2010:


(in millions)	March 31, 2010
Europe	$	170.1
China		68.5
Japan		10.1
Mexico		7.7
Canada		1.3
Other		29.2

TSYS records foreign currency translation adjustments associated with other balance sheet accounts. The Company maintains several cash accounts denominated in foreign currencies, primarily in Euros and British Pounds Sterling. As TSYS translates the foreign-denominated cash balances into U.S. dollars, the translated cash balance is adjusted upward or downward depending upon the foreign currency exchange movements. The upward or downward adjustment is recorded as a gain or loss on foreign currency translation in the statements of income. As those cash accounts have increased, the upward or downward adjustments have increased. TSYS recorded a translation gain of approximately $247,000 for the three months ended March 31, 2010 relating to the translation of cash and other balance sheet accounts. The balance of the Company’s foreign-denominated cash accounts subject to risk of translation gains or losses at March 31, 2010 was approximately $4.2 million, the majority of which was denominated in Euros.

The Company provides financing to its international operation in Europe through an intercompany loan that requires the operation to repay the financing in U.S. dollars. The functional currency of the operation is the respective local currency. As it translates the foreign currency denominated financial statements into U.S. dollars, the translated balance of the financing (liability) is adjusted upward or downward to match the U.S. dollar obligation (receivable) on its financial statements. The upward or downward adjustment is recorded as a gain or loss on foreign currency translation.

The net asset account balance subject to foreign currency exchange rates between the local currencies and the U.S. dollar at March 31, 2010 was $4.2 million.

The following table presents the potential effect on income before income taxes of hypothetical shifts in the foreign currency exchange rate between the local currencies and the U.S. dollar of plus-or-minus 100 basis points, 500 basis points and 1,000 basis points based on the net asset account balance of $4.2 million at March 31, 2010.


					Effect of Basis Point Change
	Increase in basis point of						Decrease in basis point of
(in thousands)	100		500		1,000		100			500			1,000
Effect on income before income taxes	$	42		210		419		(42	)		(210	)		(419	)

TOTAL SYSTEM SERVICES, INC.
Item 3 — Quantitative and Qualitative Disclosures About Market Risk (continued)

Interest Rate Risk

TSYS is also exposed to interest rate risk associated with the investing of available cash and the use of debt. TSYS invests available cash in conservative short-term instruments and is primarily subject to changes in the short-term interest rates.

On December 21, 2007, the Company entered into a Credit Agreement with Bank of America N.A., as Administrative Agent, The Royal Bank of Scotland plc, as Syndication Agent, and other lenders. The Credit Agreement provides for a $168 million unsecured five-year term loan to the Company and a $252 million five-year unsecured revolving credit facility. The principal balance of loans outstanding under the credit facility bears interest at a rate of London Interbank Offered Rate (LIBOR) plus an applicable margin of 0.60%. Interest is paid on the last date of each interest period; however, if the period exceeds three months, interest is paid every three months after the beginning of such interest period.

On October 31, 2008, the Company’s International Services segment obtained a credit agreement from a third party to borrow up to approximately ¥2.0 billion, or $21 million, in a Yen-denominated three year loan to finance activities in Japan. The rate is LIBOR plus 80 basis points. The Company initially made a draw down of ¥1.5 billion, or approximately $15.1 million. In January 2009, the Company made an additional draw down of ¥250 million, or approximately $2.8 million. In April 2009, the Company made an additional draw down of ¥250 million, or approximately $2.5 million.

TOTAL SYSTEM SERVICES, INC.

Item 4 — Controls and Procedures

We have evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this quarterly report as required by Rule 13a-15 of the Securities Exchange Act of 1934, as amended (“Exchange Act”). This evaluation was carried out under the supervision and with the participation of our management, including our chief executive officer and chief financial officer. Based on this evaluation, the chief executive officer and chief financial officer concluded that as of March 31, 2010, TSYS’ disclosure controls and procedures were designed and effective to ensure that the information required to be disclosed by TSYS in reports that it files under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and were also designed and effective to ensure that the information required to be disclosed in the reports that TSYS files or submits under the Exchange Act is accumulated and communicated to management, as appropriate to allow timely decisions regarding required disclosure.

Other than as set forth below, no change in TSYS’ internal control over financial reporting occurred during the period covered by this report that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

During the first quarter of 2010, TSYS implemented a new corporate-wide financial consolidation and reporting system. The new system is expected to materially impact internal controls over financial reporting by providing more timely financial reporting and consolidation information, reducing manual processes and providing a flexible architecture to reduce data entry.

TOTAL SYSTEM SERVICES, INC.

Part II — Other Information

Item 1A — Risk Factors

In addition to the other information set forth in this report, one should carefully consider the factors discussed in Part I, “Item 1A. Risk Factors” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, which could materially affect the Company’s financial position, results of operations or cash flows. The risks described in the Company’s Annual Report on Form 10-K are not the only risks facing the Company. Additional risks and uncertainties not currently known to the Company or that the Company currently deems to be immaterial also may materially adversely affect the Company’s financial position, results of operations or cash flows.

Item 2 — Unregistered Sales of Equity Securities and Use of Proceeds

The following table sets forth information regarding the Company’s purchases of its common stock on a monthly basis during the three months ended March 31, 2010:


						Total Number of		Maximum Number of
						Shares Purchased as		Shares That May Yet
						Part of Publicly		Be Purchased
(in thousands, except per share data)	Total Number of			Average Price		Announced Plans		Under the Plans
Period	Shares Purchased			Paid per Share		or Programs		or Programs
January 2010		25	⁽¹⁾	$	16.59		3,072		6,928
February 2010		39	⁽¹⁾		14.55		3,072		6,928
March 2010		—			—		3,072		6,928

Total		64	⁽¹⁾	$	15.35


(1)		Consists of delivery of shares to TSYS on vesting of restricted shares to pay taxes.

Item 6 — Exhibits

a) Exhibits


Exhibit
Number		Description
10.1		Investment Agreement (excluding exhibits and schedules) dated March 1, 2010 by and between First National Bank of Omaha and Total System Services, Inc.

10.2		Assignment of Investment Agreement dated April 1, 2010 between Total System Services, Inc. and Columbus Depot Equipment Company, a wholly owned subsidiary of Total System Services, Inc.

10.3		Amended and Restated Limited Liability Company Agreement of FNMS Holding, LLC (excluding exhibits and schedules) dated April 1, 2010 by and between Columbus Depot Equipment Company, First National Bank of Omaha, FN Merchant Partners, Inc. and FNMS Holding, LLC.

10.4		Form of Stock Option Agreement for 2010 stock option awards under the Total System Services, Inc. 2008 Omnibus Plan.

10.5		Form of Performance Share Agreement for 2010 performance share awards under the Total System Services, Inc. 2008 Omnibus Plan.

10.6		Form of Performance-Based Special Stock Option Agreement for performance-based stock option awards under the Total System Services, Inc. 2008 Omnibus Plan.

31.1		Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.2		Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

32		Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

		TSYS will furnish supplementally a copy of any omitted schedule to the Commission upon request.

TOTAL SYSTEM SERVICES, INC.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.


	TOTAL SYSTEM SERVICES, INC.
Date: May 7, 2010	by:	/s/ Philip W. Tomlinson
		Philip W. Tomlinson
		Chairman of the Board and Chief Executive Officer


Date: May 7, 2010	by:	/s/ James B. Lipham
		James B. Lipham
		Senior Executive Vice President and Chief Financial Officer

TOTAL SYSTEM SERVICES, INC.

Exhibit Index


Exhibit
Number		Description
10.1		Investment Agreement (excluding exhibits and schedules) dated March 1, 2010 by and between First National Bank of Omaha and Total System Services, Inc.

10.2		Assignment of Investment Agreement dated April 1, 2010 between Total System Services, Inc. and Columbus Depot Equipment Company, a wholly owned subsidiary of Total System Services, Inc.

10.3		Amended and Restated Limited Liability Company Agreement of FNMS Holding, LLC (excluding exhibits and schedules) dated April 1, 2010 by and between Columbus Depot Equipment Company, First National Bank of Omaha, FN Merchant Partners, Inc. and FNMS Holding, LLC.

10.4		Form of Stock Option Agreement for 2010 stock option awards under the Total System Services, Inc. 2008 Omnibus Plan.

10.5		Form of Performance Share Agreement for 2010 performance share awards under the Total System Services, Inc. 2008 Omnibus Plan.

10.6		Form of Performance-Based Special Stock Option Agreement for performance-based stock option awards under the Total System Services, Inc. 2008 Omnibus Plan.

31.1		Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.2		Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

32		Certification of Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

EX-10.1 2 g23272exv10w1.htm EX-10.1 exv10w1

Exhibit 10.1

INVESTMENT AGREEMENT

by and between

FIRST NATIONAL BANK OF OMAHA

and

TOTAL SYSTEM SERVICES, INC.

Dated March 1, 2010

TABLE OF CONTENTS


	Page
ARTICLE I DEFINITIONS AND TERMS		2
1.01. Certain Definitions		2
1.02. Other Terms		19
1.03. Other Definitional and Interpretational Provisions		19

ARTICLE II CAPITALIZATION AND PURCHASE AND SALE OF LLC INTERESTS		19
2.01. Amendment and Capitalization		19
2.02. Assumption of Liabilities; Excluded Liabilities		22
2.03. Purchase and Sale of LLC Interests		24
2.04. Cash Expenditure True-Up		24
2.05. Closing		26
2.06. Deliveries by Buyer		26
2.07. Deliveries by Seller		26
2.08. Deliveries by Opco and Holdco		27
2.09. Nonassignability of Assets		28
2.10. Asset Identification Process		29

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER		29
3.01. Organization and Qualification; Capitalization		29
3.02. Authorization		31
3.03. Consents and Approvals		31
3.04. Noncontravention		32
3.05. Binding Effect		32
3.06. Financial Statements		32
3.07. Litigation and Claims		33
3.08. Employees and Employee Benefits		33
3.09. Compliance With Laws		35
3.10. Intellectual Property		35
3.11. Labor		38
3.12. Certain Transferred Contracts		39
3.13. Absence of Changes		42
3.14. Assets		42
3.15. Absence of Liabilities		43
3.16. Finders’ Fees		43
3.17. Taxes		43
3.18. Environmental Matters		45
3.19. Top Merchant Customers		45
3.20. Top Prepaid Customers		46
3.21. Top Referral Providers		46
3.22. Top Independent Sales Organizations and Agent Banks		47
3.23. Related Party Transactions		48
3.24. Regulatory Matters; Security Breaches; Outages		48


	Page
3.25. Insurance		49
3.26. Solvency		49
3.27. Sponsorship Agreements		49
3.28. Representations under the Ancillary Agreements		50
3.29. Chargebacks and Credit Losses		50
3.30. Credit and Customer Files		50
3.31. No Other Representations or Warranties		50

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER		51
4.01. Organization and Qualification		51
4.02. Authorization		51
4.03. Consents and Approvals		51
4.04. Noncontravention		51
4.05. Binding Effect		52
4.06. Finders’ Fees		52
4.07. Litigation and Claims		52
4.08. No Other Representations or Warranties		52
4.09. Ability to Make Payment		52
4.10. Investment		52
4.11. Inspections		52

ARTICLE V COVENANTS		53
5.01. Access and Information		53
5.02. Conduct of Business		53
5.03. Reasonable Best Efforts; HSR		57
5.04. Tax Matters		57
5.05. Employee and Benefits Matters		60
5.06. Ancillary Agreements		63
5.07. [Intentionally Deleted.]		63
5.08. Nonsolicitation		63
5.09. Further Assurances		64
5.10. Licensed Intellectual Property		65
5.11. Confidentiality		65
5.12. Notification		66
5.13. Disclosure Schedules		66
5.14. Consents and Approvals		66
5.15. Collection of Receivables		67
5.16. Opco Credit Facility		67

ARTICLE VI CONDITIONS TO CLOSING		67
6.01. Conditions to the Obligations of the Parties		67
6.02. Conditions to the Obligations of Buyer		68
6.03. Conditions to the Obligations of Seller and the Companies		69

ARTICLE VII SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES		69
7.01. Survival		69
7.02. Indemnification by Seller		70


	Page
7.03. Indemnification by Buyer		71
7.04. Indemnification by the Companies		71
7.05. Third-Party Claim Indemnification Procedures		72
7.06. Direct Claims		73
7.07. Consequential Damages		74
7.08. Adjustments to Losses		74
7.09. Payments		74
7.10. Characterization of Indemnification Payments		75
7.11. Mitigation		75
7.12. Remedies		75

ARTICLE VIII TERMINATION		75
8.01. Termination		75
8.02. Effect of Termination		76

ARTICLE IX MISCELLANEOUS		76
9.01. Specific Performance		76
9.02. Notices		77
9.03. Amendment; Waiver		79
9.04. No Assignment or Benefit to Third Parties		79
9.05. Entire Agreement		79
9.06. Fulfillment of Obligations		79
9.07. Public Disclosure		79
9.08. Expenses		80
9.09. Personal Liability		80
9.10. Schedules		80
9.11. Dispute Resolution		80
9.12. Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury		81
9.13. Counterparts		81
9.14. Headings		81
9.15. Severability		81
9.16. Construction		82

iii

Exhibits and Schedules

Exhibits
Exhibit 1.1(a)(A) — Form of Acquiring Sponsorship Agreement
Exhibit 1.1(a)(B) — Form of Holdco LLC Agreement
Exhibit 1.1(a)(C-1) — Form of Lease Agreement (Synthetic Sites)
Exhibit 1.1(a)(C-2) — Form of Lease Agreement (Non-Synthetic Sites)
Exhibit 1.1(a)(D) — Form of Prepaid Card Sponsorship Agreement
Exhibit 1.1(a)(E) — Form of Transition Services Agreement
Exhibit 1.1(a)(F) — Form of Treasury Services Agreement
Exhibit 2.04(a) — Cash Expenditure Statement

Schedules
Schedule 1.1(a) — Affiliate Banks
Schedule 1.1(b) — Agent Bank Contracts
Schedule 1.1(c) — Assumed Liabilities
Schedule 1.1(e) — Critical Employees
Schedule 1.1(f) — Excluded Assets
Schedule 1.1(g) — Excluded Merchants
Schedule 1.1(h) — Excluded Services
Schedule 1.1(i) — Independent Sales Organization Contracts
Schedule 1.1(j) — Merchant Contracts
Schedule 1.1(k) — Prepaid Contracts
Schedule 1.1(l) — Seller Licensed Intellectual Property
Schedule 1.1(m) — Seller’s Knowledge
Schedule 1.1(n) — Third Party Referral Contracts
Schedule 1.1(o) — Transferred Equipment
Schedule 1.1(p) — Transferred Software
Schedule 1.1(q) — Transferred Trademarks
Schedule 3.3 — Seller and Company Required Consents and Approvals
Schedule 3.6(a) — Financial Statements
Schedule 3.6(b) — Operating Results
Schedule 3.7 — Litigation and Claims
Schedule 3.8(a) — Employee Information
Schedule 3.8(b) — Benefit Plans
Schedule 3.8(c) — Benefit Plan Compliance
Schedule 3.8(d) — Benefit Plans with Post-Employment Benefits
Schedule 3.8(e) — Benefit Plans Affected by Transactions
Schedule 3.8(g) — Benefit Plan Liabilities
Schedule 3.9 — Compliance with Laws
Schedule 3.10(a) — Intellectual Property
Schedule 3.10(c) — Exclusive Use
Schedule 3.10(j) — Transferred Software; other Material Software and Transferred Data
Schedule 3.11(d) — Labor
Schedule 3.12 — Certain Transferred Contracts
Schedule 3.13 — Absence of Changes

Schedule 3.14(b) — Terminals
Schedule 3.15 — Absence of Liabilities
Schedule 3.17(a) — Contested Taxes
Schedule 3.17(g) — Tax Extensions
Schedule 3.17(l) — Tax Sharing Agreements
Schedule 3.19(a) — Top Merchant Customers
Schedule 3.19(b) — Notices from Top Merchant Customers
Schedule 3.19(c) — Merchant Customer Contract Compliance
Schedule 3.19 (d) — Estimated 2009 Loss
Schedule 3.19 (e) — Effective Merchant Contracts
Schedule 3.19(f) — Prepaid Merchants
Schedule 3.20(a) — Top Prepaid Customers
Schedule 3.20(b) — Notices from Top Prepaid Customers
Schedule 3.20(c) — Prepaid Customer Contract Compliance
Schedule 3.21(a) — Top Referral Providers
Schedule 3.21(b) — Notices from Top Referral Providers
Schedule 3.21(c) — Third Party Referral Provider Contract Compliance
Schedule 3.22(a) — Independent Sales Organizations
Schedule 3.22(b) — Notices from Independent Sales Organizations
Schedule 3.22(c) — Independent Sales Organization Contract Compliance
Schedule 3.23 — Related Party Transactions
Schedule 3.24(b) — Security Breaches
Schedule 3.24(c) — Security Breaches Requiring Notification
Schedule 3.24(d) — Privacy Policies
Schedule 3.25 — Loss Run for Certain Insurance Claims
Schedule 3.30 — Credit and Customer Files
Schedule 4.3 — Buyer Required Approvals
Schedule 4.7 — Buyer Litigation and Claims
Schedule 5.5(a) — Applicable Employees
Schedule 7.2(c) — EBITDA Impact

INVESTMENT AGREEMENT

THIS INVESTMENT AGREEMENT, dated March 1, 2010 (this “Agreement”), is by and between FIRST NATIONAL BANK OF OMAHA, a national banking association (“Seller”) and TOTAL SYSTEM SERVICES, INC., a corporation organized under the laws of the State of Georgia (“Buyer”). Other capitalized terms used in this Agreement are defined in Section 1.01 below.

WITNESSETH :

WHEREAS, Seller is, directly and indirectly through its wholly-owned subsidiaries, SPC Inc., a Nebraska corporation doing business as “First National Merchant Solutions” (“SPC”), New SPC (as defined below), Holdco (as defined below) and Opco (as defined below), engaged in the merchant processing business, which includes (a) merchant processing services (including payment authorization, clearing and settlement for credit, debit, electronic funds transfer, electronic benefits transfer, and check authorization), (b) gift, private label, stored value and prepaid card processing, (c) certain payments related reselling services, (d) Terminal deployment services and (e) other value added services (including fraud detection, mitigation and management services) relating to the foregoing (collectively the “Business”); and

WHEREAS, on or about February 25, 2010, prior to the execution of this Agreement, the following transactions occurred:

(a) Seller formed FNMS Holding, LLC, a Delaware limited liability company (“Holdco”), by contributing $2,000,000 in cash to Holdco in exchange for the issuance to Seller of 100% of the Holdco LLC Interests;

(b) Seller caused Holdco to form First National Merchant Solutions, LLC, a Delaware limited liability company (“Opco”), by causing Holdco to contribute $2,000,000 in cash to Opco in exchange for the issuance to Holdco of 100% of Opco LLC Interests;

(c) Seller formed FN Merchant Partners, Inc., a Delaware corporation (“New SPC”) as a wholly-owned subsidiary by contributing two percent (2%) of the aggregate Holdco LLC Interests to New SPC;

(d) Seller and New SPC entered into an initial limited liability company agreement for Holdco (the “Preclosing Holdco LLC Agreement”) reflecting their ownership of the Holdco LLC Interests; and

WHEREAS, as soon as reasonably practicable after execution of this Agreement, and in any event at least one Business Day prior to the Closing contemplated by this Agreement, the following transactions shall occur:

(a) Seller shall cause SPC to be merged with and into Opco (the “SPC Merger”), with title in the applicable Transferred Assets held by SPC immediately prior to the SPC Merger vesting in Opco by operation of law, with additional Holdco LLC Interests being issued to Seller as the merger consideration, and with Holdco continuing to own 100% of the Opco LLC Interests following the SPC Merger;

(b) Seller shall contribute to Holdco, and then Holdco shall contribute to Opco (as an additional capital contribution), the applicable Transferred Assets held directly by Seller immediately prior to such contribution, and in exchange for such contribution, Holdco shall issue additional Holdco LLC Interests to Seller;

(c) Seller shall contribute to New SPC a portion of the additional Holdco LLC Interests so received by Seller pursuant to the SPC Merger and the contribution of the Transferred Assets so that Seller continues to own ninety eight percent (98%) of the outstanding Holdco LLC Interests and New SPC continues to own two percent (2%) of outstanding Holdco LLC Interests; and

WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, in the aggregate a 51% limited liability company interest in Holdco, as more particularly set forth in this Agreement; and

WHEREAS, as part of and at the Closing, inter alia:

(a) Buyer, Seller and New SPC shall cause the Preclosing Holdco LLC Agreement to be amended and restated in its entirety in the form of the Holdco LLC Agreement; and

(b) Seller shall sell, transfer and convey to Buyer, and Buyer shall purchase from Seller, 51 Class A Units, representing 51% of the outstanding Units.

WHEREAS, after the purchase by Buyer of the Class A Units, the Parties intend that Holdco will continue to be classified as a partnership for U.S. federal income tax purposes and that Opco will continue to be disregarded as an entity separate from Holdco for U.S. federal income tax purposes;

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained in this Agreement, and for other good and valuable consideration, the parties agree as follows:

ARTICLE I

DEFINITIONS AND TERMS

Section 1.01. Certain Definitions. As used in this Agreement, the following terms have the meanings set forth below (including for purposes of the Recitals):

“AAA” has the meaning set forth in Section 9.11(b).

“Acquiring Sponsorship Agreement” means that certain Acquiring Sponsorship Agreement, substantially in the form attached hereto as Exhibit 1.1(a)(A).

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made (it being

understood and agreed that, for purposes of this Agreement, the Companies and SPC shall be deemed to be Affiliates of Seller and of New SPC only with respect to the period occurring on or prior to the Closing and with respect to the period occurring thereafter shall be deemed to be Affiliates of Buyer). For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

“Affiliate Bank” means the selected banking entities as set forth on Schedule 1.1(a) that are controlling, controlled by or under common control with Seller, its parent, First National of Nebraska, Inc., Lauritzen Corporation, or any financial services entities controlled by the Lauritzen family. For purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”) means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of an entity, whether through ownership of voting securities, by contract or otherwise.

“Agent Bank Contract” means any agreement between Seller and/or SPC and an Agent Bank which is being assigned to Opco pursuant to the terms of this Agreement and the Assignment and Assumption Agreement, including the Agent Bank Contracts listed on Schedule 1.1(b).

“Agent Banks” means any financial institution that procures Merchant Customers with portability of the Merchant Customer portfolio, excluding Third Party Referral Providers.

“Agents” has the meaning set forth in Section 5.11(a).

“Agreement” means this Investment Agreement, as amended or supplemented from time to time in accordance with its terms.

“Ancillary Agreements” means collectively those agreements substantially in the forms set forth on Exhibits 1.1(a)(A) through (F) hereto and the FNNI Affiliate Bank Referral Agreement, the Lauritzen Affiliate Bank Referral Agreement, the Assignment and Assumption Agreement, the Corporate Services Agreement, the IP/Software License Agreement, the Processing Technology License Agreement, the Registration Rights Agreement, the Trademark License Agreement and the Tradename License Agreement, each of which are to be entered into at Closing or the Contribution, as applicable.

“Applicable Employees” means the employees of the Business as identified by name, job title and job site location on Schedule 5.5(a). Seller shall furnish to Buyer an updated Schedule 5.5(a) not later than five Business Days prior to the Closing Date, which schedule shall indicate any newly hired employee of the Business and any employee of the Business whose employment has terminated following the date hereof.

“Arbitration Dispute” means all disputes arising out of or relating to this Agreement or the breach, termination, or validity thereof, or the Parties’ performance, involving amounts less than One Million Dollars ($1,000,000.00) and excluding any action for specific performance or other equitable remedy arising out of or relating to Article II of this Agreement, Article VII of this

Agreement or any claims for fraud, intentional misrepresentation or an intentional and knowing breach of a covenant set forth in this Agreement.

“Asset Identification Process” has the meaning set forth in Section 2.10.

“Assignment and Assumption Agreement” means the Assignment and Assumption Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller and Opco.

“Assumed Liabilities” means (a) all Liabilities of the Business under the Transferred Contracts, other than those relating to or arising from any obligation under any such Transferred Contract by Seller or its Affiliates that arose prior to the Closing (regardless of whether such Liabilities are discovered and/or identified prior to or after the Closing) except with respect to any post-Closing obligation where performance is required pursuant to such Transferred Contract, Ancillary Agreement and/or any Card Association rule, (b) any other Liabilities of the Business set forth on Schedule 1.1(c), and (c) any other Liabilities of the Business that the Companies have expressly assumed or agreed to assume under this Agreement and the Ancillary Agreements.

“Bank Card Association” means MasterCard International, Inc., VISA Inc., and their related international entities.

“Bank Cards” means a credit card, charge card, debit card, prepaid card or similar instrument that is issued by a licensee of a Bank Card Association.

“Benefit Plans” means each “employee benefit plan” (as defined in Section 3(3) of ERISA) and each other material profit-sharing, bonus, stock option, stock purchase, restricted stock units/shares, stock ownership, pension, retirement, severance, change of control, retention, deferred compensation, excess benefit, supplemental unemployment, post-retirement medical or life insurance, welfare, incentive, sick leave or other leave of absence, short- or long-term disability, salary continuation, medical, hospitalization, life insurance, other insurance plan, or other employee benefit plan, program or arrangement, including individual employment, severance, retention, change of control or similar agreements, maintained, sponsored or contributed to (or for which a contribution obligation exists) by Seller or its Affiliates (including affiliates within the meaning of Code Sections 414(b), (c), (m) or (o) or Section 4001(a)(14) of ERISA) and with respect to which either current or former employees, officers, independent contractors or directors of SPC, Holdco and Opco participate or SPC, Holdco or Opco have any direct or indirect Liability (whether contingent or otherwise).

“Business” has the meaning set forth in the Recitals.

“Business Day” means any day other than a Saturday, a Sunday or a day on which banks in Omaha, Nebraska or Atlanta, Georgia are authorized or obligated by Law or executive order to close.

“Buyer” has the meaning set forth in the Preamble.

“Buyer Indemnified Parties” has the meaning set forth in Section 7.02(a).

“Buyer Required Approvals” means all consents, approvals, waivers, authorizations, notices and filings from or with a Government Entity that are required to be and are listed on Schedule 4.3.

“Cap” has the meaning set forth in Section 7.02(b).

“Card Associations” means (i) Bank Card Associations and (ii) Other Card companies (e.g. Discover Network, JCB, American Express Travel Related Services, Inc., Diners Club, Carte Blanche and debit card networks or links) and any other card association or similar entity with whom the Business may have a contract for processing and/or facilitating switching settlement of transaction media generated by holders of cards or similar instruments issued by licensees of such groups.

“Cards” means Bank Cards and all Other Cards.

“Cash Expenditure Statement” shall mean the pro forma statement attached hereto as Exhibit 2.04(a), which sets forth the estimated cash expenditures for the Business for the 150-day post-Closing period.

“Cash Purchase Price” has the meaning set forth in Section 2.03(c).

“Catastrophic Data Breach” means any actual breach of security and unauthorized access to personal information data, magnetic strip data, card account number and card verification value data or card account number and personal identification number data under the direct control of the Business (other than such breaches and access occurring in systems maintained by customers and/or service providers of such customers) where the compromise affects the protected data of 500,000 customers, suppliers, consumers and/or other similarly situated individuals in connection with any such particular breach and unauthorized access or series of related breaches or unauthorized access.

“Chairman” has the meaning set forth in Section 9.11(b).

“Change of Control” means any (i) merger, consolidation or other business combination of Holdco, Opco or such other subsidiary that results in the members of Holdco immediately before the consummation of such transaction holding, directly or indirectly, less than 50% of the interests in Holdco, Opco or such other subsidiary, as applicable (or the surviving entity) immediately following the consummation of such transaction, (ii) the transfer of Units representing 50% or more of the voting power of Holdco, Opco or such other subsidiary, to a Person or group of related Persons (other than Buyer and Seller and their respective affiliates), (iii) transaction in which a majority of the Board of Directors of Holdco following such transaction is comprised of Persons who are not designees of Buyer, Seller or their respective Affiliates or (iv) sale of all or substantially all of the assets of Holdco, Opco and such other subsidiaries.

“Chargebacks” means the reversal of a Card transaction in accordance with the applicable Network Rules including any fees, costs and expenses of collection related thereto.

“Claim Notice” has the meaning set forth in Section 7.05(a).

“Class A Units” has the meaning set forth in the Holdco LLC Agreement.

“Class B Units” has the meaning set forth in the Holdco LLC Agreement.

“Closing” means the closing of the Sale Transaction.

“Closing Cash Expenditure Statement” has the meaning set forth in Section 2.04(a).

“Closing Date” means the date on which the Closing occurs.

“COBRA Coverage” means the health continuation coverage required by Section 4980B of the Code and Part 6 of Title I of ERISA and the relevant provisions of the American Recovery and Reinvestment Act of 2009.

“Code” means the Internal Revenue Code of 1986, as amended.

“Companies” means Holdco and Opco.

“Company Plans” has the meaning set forth in Section 5.05(b).

“Company Required Approvals” means all consents, approvals, waivers, authorizations, notices and filings from or with a Government Entity with respect to the Companies that are required to be and are listed on Schedule 3.3.

“Confidentiality Agreement” means the confidentiality letter agreement between First National of Nebraska, Inc. and Buyer, dated September 8, 2009.

“Confidential Information” means the terms of this Agreement and the Ancillary Agreements, the negotiations relating to such agreements, and all documents and information obtained by a Party from the other Party in connection with the Transactions on or before the Closing Date, whether communicated orally or in any physical form, including without limitation, written documents, drawings, models, photographs, sketches, diskettes, magnetic tapes and other electromagnetic forms, concerning finances, technologies, formulae, data, business methods, business strategies, operational procedures, tax matters, business manuals, contracts, budgets, marketing plans, future expansion plans, relationships with third parties, customer lists and information, financial statements, present and proposed products, trade secrets, computer software programs and descriptions of functions and features of software, source code, information regarding suppliers, employees and affiliates and all other information which is provided hereunder, together with such portions of analyses, compilations, studies, or other documents, prepared by or for the Party receiving such information which is derived from information provided by the disclosing Party; provided, however, that “Confidential Information” shall not include information that: (a) is now or subsequently becomes generally available to the public through no fault or breach on the part of a Party receiving such Confidential Information; (b) a receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the disclosing Party; (c) is independently developed by a receiving party without the use of any Confidential Information of the disclosing Party; or (d) the receiving Party rightfully obtains from a third party who can demonstrate to the receiving Party that such third party has the right to transfer or disclose the Confidential Information.

“Contribution” has the meaning set forth in Section 2.01(a)(ii).

“Copyrights” has the meaning set forth in the “Intellectual Property” definition.

“Corporate Services Agreement” means the Corporate Services Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller and Opco.

“CPA Firm” means an internationally recognized “Big Four” firm of independent certified public accountants designated jointly by Seller and Buyer.

“Credit Loss” means a Loss resulting from the failure by a Merchant Customer to timely pay amounts owed by it under a Merchant Contract, other than amounts owed by reason of a Chargeback, and the fees, costs and expenses of collection related thereto. For the avoidance of doubt, a settlement advance for which cleared funds are not received from the applicable Card Association or other settlement system and which is not otherwise repaid by the relevant Merchant Customer or recoverable as a Chargeback shall be considered a Credit Loss.

“Critical Employees” means those employees of the Business set forth on Schedule 1.1(e).

“Deductible” has the meaning set forth in Section 7.02(b).

“Direct Claim” has the meaning set forth in Section 7.06.

“Employment Effective Date” has the meaning set forth in Section 5.05(a).

“Encumbrance” means any lien, pledge, charge, claim, encumbrance, security interest, option, mortgage, easement, lease, license, right of first refusal, proxy, voting trust, transfer restriction or other restriction of any kind.

“Enterprise Value” means the amount equal to the Cash Purchase Price divided by 0.51.

“Environmental Claim” has the meaning set forth in Section 3.18(b).

“Environmental Laws” has the meaning set forth in Section 3.18(a).

“Equipment Assets” means any infrastructure asset (including all forms of hardware, information technology systems, mainframes, servers, PCs, computer systems, networking and telecommunications equipment, routers, switches, storage devices (SAN, NAS), tape and backup devices, printers and other peripherals, mail-related equipment, power supplies, cabling, firewalls, security hardware and the like), other than any Intellectual Property.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Reportable Event” means a reportable event within the meaning of Section 4043 of ERISA.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

“Excluded Assets” means (a) any right, title, interest, liability, obligation, contract or commitment under any Merchant Contract, Prepaid Contract, Third Party Referral Contract, Independent Sales Organization Contract and Agent Bank Contract, that is not assigned by Seller and assumed by Opco pursuant to the Assignment and Assumption Agreement, as listed on Schedule 1.1(f) (b) any financial or treasury service benefit of the Business derived from being wholly-owned and/or operated by a national bank (c) all furniture, furnishings, equipment, computers, tools and other tangible personal property listed on Schedule 1.1(f), (d) all accounts and notes receivable and other miscellaneous receivables of the Business as of the Closing arising out of the sale or other disposition prior thereto of goods or services of the Business including any such receivables listed on Schedule 1.1(f), (e) all agreements, contracts, leases and subleases, purchase orders, arrangements, commitments and licenses listed on Schedule 1.1(f), (f) Seller’s and its Affiliates’ rights under this Agreement, the Ancillary Agreements and those agreements governing Seller Leased Property, (g) all Intellectual Property listed on Schedule 1.1(f), (h) (i) all books, ledgers, files, reports, plans, records, manuals and other materials (in any form or medium) other than the Transferred Books and Records and (ii) Seller’s corporate organizational records and documents, other than with respect to Holdco, Opco and SPC, (i) all of Seller’s and its Affiliates’ rights under insurance policies, (j) all rights in connection with and assets of Benefit Plans, (k) all assets specifically excluded from the definition of Transferred Assets by virtue of the explicit limitations contained therein and (l) any other items listed on Schedule 1.1(f); it being understood that any assets identified through the Asset Identification Process as not being those that remain Excluded Assets shall, at the time of transfer pursuant to this Agreement, cease to be Excluded Assets and shall thereafter become Transferred Assets under this Agreement for all purposes.

“Excluded Liabilities” has the meaning set forth in Section 2.02(b).

“Excluded Merchants” means those Merchant Customers and Independent Sales Organizations set forth on Schedule 1.1(g).

“Excluded Services” means the services and corporate allocations set forth on Schedule 1.1(h).

“Financial Statements” has the meaning set forth in Section 3.06.

“FNNI Affiliate Bank Referral Agreement” means the FNNI Affiliate Bank Referral Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between First National of Nebraska, Inc. and Opco.

“Fundamental Representations” has the meaning set forth in Section 7.01.

“FNN Pension Plan” has the meaning set forth in Section 5.05(j).

“GAAP” means United States generally accepted accounting principles.

“Government Antitrust Entity” means any Government Entity with jurisdiction over the enforcement of any Antitrust Law.

“Government Entity” means any federal, state, local or foreign government, governmental subdivision, administrative body or other governmental or quasi-governmental agency, tribunal, court or other entity with competent jurisdiction, including any Government Antitrust Entity.

“Governmental Authorizations” means all licenses, permits, certificates and other authorizations and approvals related to the Transferred Assets or the Business and issued by or obtained from a Government Entity or Self-Regulatory Organization.

“Historical Financial Statements” has the meaning set forth in Section 3.06.

“Holdco” has the meaning set forth in the Recitals.

“Holdco LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Holdco substantially in the form attached hereto as Exhibit 1.1(a)(B).

“Holdco LLC Interests” means, collectively, the Class A Units and the Class B Units.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Indemnified Parties” has the meaning set forth in Section 7.02(a).

“Indemnifying Party” has the meaning set forth in Section 7.05(a).

“Indemnity Amount” has the meaning set forth in Section 7.09.

“Independent Sales Organization” means any indirect sales channel that procures Merchant Customer relationships for the Business, excluding Third Party Referral Providers.

“Independent Sales Organization Contract” means any agreement between Seller and/or SPC and an Independent Sales Organization which is being assigned to Opco pursuant to the terms of this Agreement and the Assignment and Assumption Agreement, including the Independent Sales Organization Contracts listed on Schedule 1.1(i).

“Intellectual Property” means all intellectual property rights, whether protected, created or arising under the Laws of the United States or any other jurisdiction or under any international convention, including all (a) trademarks, service marks, brand names, Internet domain names, logos, symbols, trade dress, trade names, all applications and registrations for the foregoing, including all renewals and extensions of same, and all goodwill associated therewith and symbolized thereby (collectively, “Trademarks”), (b) patents and the issuances, registrations, invention disclosures and applications therefor, including divisions, continuations, continuations-in-part, provisionals, renewal applications, and renewals, extensions, reexaminations and reissues and any patents issuing on any of the foregoing (collectively, “Patents”), (c) trade secrets, know-how and similar confidential information protected by the Uniform Trade Secrets Act or similar legislation (collectively, “Trade Secrets”), (d) works of authorship in any media and the copyrights therein and thereto (including Software, databases, collections of data and other compilations of information), the registrations and applications therefor, and renewals, extensions, restorations and reversions thereof (collectively, “Copyrights”), (e) all intellectual property rights arising from or in respect of Technology, and (f) all income, royalties, proceeds and rights to

damages and other payments now or hereafter due or payable or able to be asserted under and with respect to any of the foregoing, including all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.

“Interchange Fee” means any fee, cost or expense (other than Taxes) payable to the applicable Card Association or Network Organization in respect of a Card transaction.

“Interim Financial Statements” has the meaning set forth in Section 3.06.

“IP/Software License Agreement” means the IP/Software License Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller and Opco.

“Law” means any law, statute, ordinance, rule, regulation, code, Order, judgment, injunction or decree enacted, issued, promulgated, enforced or entered by a Government Entity or Self-Regulatory Organization (including, for the sake of clarity, any policy statement or interpretation that has the force of law with respect to any of the foregoing, and including common law).

“Lauritzen Affiliate Bank Referral Agreement” means the Lauritzen Affiliate Bank Referral Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Luaritzen Corporation and Opco.

“Lease Agreements” means the sublease agreements between Opco and Seller and/or its Affiliates pursuant to which Opco shall lease real property from Seller and/or its Affiliates, substantially in the forms attached hereto as Exhibit 1.1(a)(C-1) and Exhibit 1.1(a)(C-2).

“Legal Proceeding” means any judicial, administrative or arbitral actions (whether civil, criminal, administrative or otherwise), suits, demands, mediations, arbitrations, hearings, investigations, inquiries, proceedings or claims (including counterclaims) by or before a Government Entity.

“Liabilities” means any and all debts, guarantees, claims, damages, costs, expenses, the obligation to make a payment based on future earnings in connection with an acquisition, fines, penalties, liabilities, commitments and obligations of any kind, whether direct or indirect, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known or unknown, determined, determinable or otherwise, whenever or however arising (including whether arising out of any contract or tort based on negligence or strict liability) and whether or not the same would be required by GAAP to be reflected in financial statements or disclosed in the notes thereto.

“Losses” has the meaning set forth in Section 7.02(a).

“Material Adverse Effect” means (a) any event, circumstance, development, change or effect that is, or is reasonably likely to be, materially adverse to the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole; (b) a Seller Change of Control Event; (c) an event, circumstance, development, change or effect that would reasonably be

expected to prevent or materially delay the consummation of the Transactions contemplated by this Agreement or prevent or materially impair the ability of Seller or the Companies to perform their obligations hereunder; (d) the occurrence of a Catastrophic Data Breach or the discovery thereof; (e) any commencement of bankruptcy, insolvency or receivership proceedings (whether voluntary or involuntary) of Seller or any of its depository institution Affiliates or (f) any effect that is, or is reasonably likely to be, materially adverse to Seller’s ability to provide in the aggregate the services contemplated by the Ancillary Agreements; provided, however, that “Material Adverse Effect” shall not include the effect of any circumstance, change, development, event or state of facts arising out of or primarily attributable to any of the following, either alone or in combination:

(i) any change in Law or accounting standards or interpretations thereof applicable to the Business or the Companies that does not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate;

(ii) general changes in economic, business or political conditions that do not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate;

(iii) general changes in the securities, credit or financial markets or in the banking industry that do not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate;

(iv) general changes in the electronic funds transfer, debit, credit and/or merchant transaction processing, or other related data processing industries that do not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate;

(v) the taking of any action required or permitted by this Agreement or consented to or requested, in each case in writing, by Buyer;

(vi) any acts of war, terrorism, insurrection or civil disobedience that do not materially and disproportionately adversely affect the business, assets, financial condition or results of operations of the Business or the Companies, taken as a whole, compared to businesses or entities operating in the same industry in which the Business or the Companies operate;

(vii) any items disclosed as of the date hereof on any of Seller’s Disclosure Schedules to this Agreement, but only to the extent such effect is reasonably apparent from the reading of the specific disclosure set forth therein; and

(viii) any adverse effect to the business, assets, financial condition or results of operations of the Business or the Companies as a result of the execution of this Agreement, the announcement of the Transactions contemplated hereby, the pendency of the transactions contemplated hereby or the

consummation of the Transactions contemplated hereby. For purposes of clarification, the foregoing provisos (i) — (viii) are not applicable to clause (b) of this definition.

“Material Business Contract” has the meaning set forth in Section 3.12.

“Material Security Breach” has the meaning set forth in Section 3.24(b).

“Merchant Contract” means any agreement between Seller and a Merchant Customer which is being assigned to Opco pursuant to the terms of this Agreement and the Assignment and Assumption Agreement, including the Merchant Contracts identified by Merchant Customer listed on Schedule 1.1(j).

“Merchant Customer” means any provider of goods and/or services that accepts Transaction Cards as a payment vehicle which are serviced by the Business pursuant to a Merchant Contract.

“Necessary Employee” has the meaning set forth in Section 5.05(a).

“Network Rules” has the meaning set forth in Section 3.24(a).

“New SPC” has the meaning set forth in the Recitals.

“Non-Governmental Authorizations” means all licenses, permits, certificates and other authorizations and approvals other than Governmental Authorizations that are (a) held by Seller or its Affiliates and (b) related to the Transferred Assets.

“Notice Period” has the meaning set forth in Section 7.05(a).

“Opco” has the meaning set forth in the Recitals.

“Opco 401(k) Plan” has the meaning set forth in Section 5.05(e).

“Opco LLC Agreement” means the Limited Liability Company Agreement of Opco that will be agreed to between Buyer and Seller prior to the Closing and will be substantially consistent with the initial Limited Liability Company Agreement for Holdco, except that Holdco shall be the only Member.

“Opco LLC Interests” means the membership interests in Opco.

“Order” means any order, injunction, judgment, decree, writ or other enforcement action of a Government Entity.

“Ordinary Course” means the ordinary and usual conduct of normal day-to-day operations of the Business and/or use of the Transferred Assets consistent with, and in accordance with, Seller and SPC’s historical customs, practices and procedures and the applicable rules and regulations of the Card Associations.

“Other Cards” shall include Discover Network, JCB, American Express Travel Related Services, Inc., Diners Club, Carte Blanche and any other Card or similar instrument which may be

issued by a debit card network or any other Card Association (or licensee thereof) other than a Bank Card Association.

“Party” means any of Buyer, Seller and the Companies, and “Parties” means, collectively, each of Buyer, Seller and the Companies.

“Patents” has the meaning set forth in the “Intellectual Property” definition.

“PBGC” has the meaning set forth in Section 3.08(h).

“Pension Plan” has the meaning set forth in Section 3.08(g).

“Permitted Encumbrances” means (a) Encumbrances reflected or reserved against or otherwise disclosed in the Financial Statements, (b) mechanics’, materialmen’s, warehousemen’s, carriers’, workers’ or repairmen’s liens or other similar common-law or statutory Encumbrances arising or incurred in the Ordinary Course and that are not material in amount or effect on the Business, (c) liens for current Taxes, assessments and other governmental charges that are (i) not yet due and payable, (ii) due but not delinquent or (iii) being contested in good faith by appropriate Legal Proceedings, and that in each case have been sufficiently reflected or reserved against on the face of the balance sheets contained in the Financial Statements or related to a period after such Financial Statements; in each case in an amount that would not be material, (d) all leases related to the Business to which Seller or SPC is a party, (e) all licenses granted by a third party to Seller or its Affiliates and related to the Transferred Software set forth on Schedule 1.1(p), as applicable, (f) purported Encumbrances evidenced by the filing of precautionary UCC financing statements relating solely to operating leases (under GAAP) of personal property entered into in the Ordinary Course of Business (g) Encumbrances incurred in the Ordinary Course since the date of the Financial Statements and that are not material in amount or effect on the Business, and (h) Encumbrances that would not materially impair the conduct of the Business, or the use or value of the relevant Transferred Assets.

“Person” means an individual, a corporation, a partnership, an association, a limited liability company, a joint venture, a Government Entity, a trust or other entity or organization.

“Post-Closing Cash Expenditures” has the meaning set forth in Section 2.04(a).

“Preclosing Holdco LLC Agreement” has the meaning set forth in the Recitals.

“Prepaid and Escrowed Liability” means Prepaid Card Liability plus any other escrowed cash or deposits

“Prepaid Card Liability” means an amount equal to the liability set forth on the books of Opco as of the Closing Date with respect to cash associated with gift, private label, stored value and other prepaid card processing services of the Business or the Transferred Assets.

“Prepaid Card Sponsorship Agreement” means that certain Prepaid Card Sponsorship Agreement, substantially in the form attached hereto as Exhibit 1.1(a)(D).

“Prepaid Customer” means any entity to which Seller provides prepaid Bank Cards for resale or distribution as part of the business pursuant to a Prepaid Contract or a purchase order.

“Prepaid Contract” means any agreement between Seller and a Prepaid Customer which is being assigned to Opco pursuant to the terms of this Agreement and the Assignment and Assumption Agreement, including the Prepaid Contracts listed on Schedule 1.1(k).

“Processing Technology License Agreement” means the Processing Technology License Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller and Opco.

“Projected Cash Expenditures” shall mean the estimated cash expenditures for the Business for the 150-day post-Closing period set forth on the Cash Expenditure Statement.

“Purchase Consideration” means the Cash Purchase Price.

“Registration Rights Agreement” means the Registration Rights Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller, Buyer and Holdco.

“Related Persons” has the meaning set forth in Section 3.23.

“Sale Transaction” has the meaning set forth in Section 2.03(b).

“Self-Regulatory Organization” means the Financial Industry Regulatory Authority, the American Stock Exchange, the National Futures Association, the Chicago Board of Trade, the New York Stock Exchange, any national securities exchange (as defined in the Exchange Act), any other securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization.

“Seller” has the meaning set forth in the Preamble.

“Seller 401(k) Plan” has the meaning set forth in Section 5.05(e).

“Seller Change of Control Event” means the execution of any definitive agreement to consummate, or the consummation of, any change of control of Seller or First National of Nebraska, Inc.

“Seller Indemnified Parties” has the meaning set forth in Section 7.03(a).

“Seller Leased Property” means those assets or rights not included in the Transferred Assets that are to be leased, licensed or otherwise provided by Seller and/or any of its Affiliates to Opco pursuant to this Agreement or any Ancillary Agreement.

“Seller Licensed Intellectual Property” means the Intellectual Property and Technology to be licensed to Opco by Seller or any of its Affiliates pursuant to the IP/Software License Agreement, the Trademark License Agreement and the Tradename License Agreement, but shall

not include any third party software, if any, related to services provided pursuant to the Services Agreements. Schedule 1.1(l) identifies each item of the Seller Licensed Intellectual Property.

“Seller Required Approvals” means all consents, approvals, waivers, authorizations, notices and filings that are required to be and are listed on Schedule 3.3.

“Seller Services” means those rights, assets and services to be provided by Seller or its Affiliates to the Companies from and after the Closing pursuant to this Agreement or any Ancillary Agreements.

“Seller’s Cash Expenditure Objection” has the meaning set forth in Section 2.04(b).

“Seller’s Knowledge,” or any similar phrase, means the actual or constructive knowledge of any of the persons set forth on Schedule 1.1(m) of a particular fact or other matter after due inquiry.

“Seller’s Objection” has the meaning set forth in Section 2.04(b).

“Service Agreements” has the meaning set forth in Section 2.02(b)(iii).

“Software” means any and all (a) computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code; (b) databases and compilations, including any and all data and collections of data, whether machine-readable or otherwise; (c) descriptions, flowcharts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons; and (d) all documentation, including user manuals and other training documentation related to any of the foregoing.

“SPC” has the meaning set forth in the Recitals.

“SPC Merger” has the meaning set forth in the Recitals.

“Sponsorship Agreements” has the meaning set forth in Section 3.27.

“Taxes” means any federal, state, local, territorial, provincial or foreign taxes of any kind whatsoever, including income, net income, gross receipts, windfall profits, value-added, severance, real property, personal property, production, single business, unincorporated business, sales, use, stamp, duty, license, excise, franchise, payroll, employment, unemployment, occupation, premium, environmental (including taxes under Section 59A of the Code), customs duties, capital stock, franchise, profits, gains, withholding, social security (or similar), disability, workers’ compensation, ad valorem, replacement, transfer, registration, unclaimed property, escheat, alternative or add-on minimum, estimated taxes, fees and charges, together with any interest, additions, fines or penalties with respect thereto and any interest in respect of such additions or penalties, whether or not disputed and whether imposed by Law, contract or otherwise.

“Tax Returns” means any report, return, declaration, estimate, claim for refund or information return or statement relating to or required to be filed with respect to Taxes, including any schedule, form, attachment or amendment.

“Technology” means, collectively, all formulae, algorithms, work product of research and development, technical data, technical or business specifications, business processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), Software, works of authorship and other similar materials, and all tangible embodiments of the foregoing, in any form whether or not specifically listed herein.

“Terminal” means any point of sale terminal, terminal PIN pad, terminal printer, test terminal and all ancillary hardware that the Business has purchased, uses, or holds at any branch location, Merchant Customer location or in inventory for use in the Business.

“Terminated Employee” has the meaning set forth in Section 5.05(i).

“Termination Date” has the meaning set forth in Section 8.01(b).

“Third-Party Claim” has the meaning set forth in Section 7.05(a).

“Third Party Referral Contract” means any agreement between Seller and/or SPC and a Third Party Referral Provider which is being assigned to Opco pursuant to the terms of this Agreement and the Assignment and Assumption Agreement, including the Third Party Referral Contracts listed on Schedule 1.1(n).

“Third Party Referral Provider” means any indirect sales channel (including banks, Affiliate Banks, professional associations, value added resellers, and other referral sources), that sells, refers, or promotes the services of the Business to merchants pursuant to a Third Party Referral Contract, excluding Independent Sales Organizations and Agent Banks.

“Threshold” has the meaning set forth in Section 7.02(b).

“Top Merchant Customers” has the meaning set forth in Section 3.19(a).

“Top Prepaid Customers” has the meaning set forth in Section 3.20(a).

“Top ISOs” has the meaning set forth in Section 3.22(a).

“Top Referral Providers” has the meaning set forth in Section 3.21(a).

“Trademarks” has the meaning set forth in the “Intellectual Property” definition.

“Trademark License Agreement” means the Trademark License Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller and Opco.

“Tradename License Agreement” means the Tradename License Agreement in form and substance mutually acceptable to Buyer and Seller which is to be entered into at Closing between Seller and Opco.

“Trade Secrets” has the meaning set forth in the “Intellectual Property” definition.

“Transaction Cards” means a Card issued pursuant to a license from a Card Association.

“Transactions” means all of the transactions contemplated by this Agreement, the Ancillary Agreements and any of the Closing documents to occur before, at or following the Closing.

“Transfer Taxes” has the meaning set forth in Section 5.04(d).

“Transferred Assets” has the meaning set forth in Section 2.01(a)(iv).

“Transferred Books and Records” means copies of all books, ledgers, files, reports, plans, records, manuals and other materials (in any form or medium) primarily related to, or maintained primarily in connection with, the Transferred Assets and/or the operation of the Business, including those relating to products, services, marketing, advertising, promotional materials, Transferred Intellectual Property, personnel files for Transferred Employees and all files, customer files and documents (including credit information), supplier lists, records, literature and correspondence, but excluding any such items to the extent (a) they are included in or primarily related to any Excluded Assets or Excluded Liabilities or (b) any Law prohibits their transfer; provided, however, that Seller shall be allowed to retain and maintain copies of any Transferred Books and Records in connection with risk management and/or insurance compliance; any Benefit Plans in which Seller is or was a sponsor and/or administrator; the preparation of consolidated financial statements for reporting and filing purposes, including such statements related to accounting, finance or Tax preparation or internal auditing; general management and administration and requirements under applicable Law.

“Transferred Contracts” means all Merchant Contracts, Prepaid Contracts, Third Party Referral Contracts, Independent Sales Organization Contracts and Agent Bank Contracts, to the extent the rights, titles, interests, liabilities, obligations, contracts and commitments under such contracts are being assigned by Seller and assumed by Opco pursuant to the Assignment and Assumption Agreement, and all other agreements, contracts, leases and subleases, purchase orders, arrangements, commitments and licenses (other than this Agreement, the Ancillary Agreements, and those governing Seller Leased Property) that are (a) primarily related to the Business as of the Closing and to which any of the Transferred Assets are subject or (b) related to any Transferred Intellectual Property or Transferred Technology primarily used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, in each case, whether written or oral, except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transferred Data” means all data, databases, compilations of data, schemas, and structures primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including, but not limited to, the items listed on Schedule 3.10(j).

“Transferred Employee” has the meaning set forth in Section 5.05(a).

“Transferred Equipment” means all equipment, including Equipment Assets, and other tangible personal property primarily related to, or primarily used, held for use or acquired or developed for use in connection with, the Business, including the Transferred Equipment listed on Schedule 1.1(o), except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transferred Intellectual Property” means all Intellectual Property (other than Seller Licensed Intellectual Property and Intellectual Property owned by or licensed to Seller after the

Closing Date used in connection with the Service Agreements) that is primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Transferred Trade Secrets and Transferred Trademarks, except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transferred Interests” has the meaning set forth in Section 2.03(b).

“Transferred Inventory” means all inventory and other tangible personal property primarily related to, or primarily used, held for use or acquired or developed for use in connection with, the Business.

“Transferred Software” means all Software (other than Seller Licensed Intellectual Property and Intellectual Property owned by or licensed to Seller after the Closing Date used in connection with the Service Agreements) primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Software listed on Schedule 1.1(p), except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transferred Technology” means all Technology (other than Seller Licensed Intellectual Property and Intellectual Property owned by or licensed to Seller after the Closing Date used in connection with the Service Agreements) primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Transferred Software and Transferred Data, except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transferred Trademarks” means all Trademarks and domain names primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, including the Trademarks and domain names set forth on Schedule 1.1(q), together with the goodwill of the Business appurtenant thereto and/or symbolized thereby, except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transferred Trade Secrets” means all Trade Secrets (other than Seller Licensed Intellectual Property and Intellectual Property owned by or licensed to Seller after the Closing Date used in connection with the Service Agreements) primarily related to or primarily used, held for use or acquired or developed for use in connection with the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, except to the extent specifically included in Schedule 1.1(f) as Excluded Assets.

“Transition Services Agreement” means that certain transition services agreement, substantially in the form attached hereto as Exhibit 1.1(a)(E).

“Treasury Services Agreement” means that certain Treasury Services Agreement, substantially in the form attached hereto as Exhibit 1.1(a)(F).

“U.S.” or “United States” means the fifty (50) States of the United States of America and the District of Columbia.

“U.S. Antitrust Laws” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other federal and state statutes, rules, regulations, Orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade.

“WARN” has the meaning set forth in Section 3.11(d).

“Welfare Benefits” has the meaning set forth in Section 5.05(c).

Section 1.02. Other Terms. Other terms may be defined elsewhere in the text of this Agreement and, unless otherwise indicated, shall have such meaning throughout this Agreement.

Section 1.03. Other Definitional and Interpretational Provisions. Unless the express context otherwise requires (other than with respect to clause (g) below):

the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement;

the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

the terms “Dollars” and “$” mean United States Dollars;

references herein to a specific Article, Section, subsection or Schedule shall refer, respectively, to Articles, Sections, subsections or Schedules of this Agreement;

wherever the word “include,” “includes” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”;

references herein to any gender include each other gender;

it is the intention of the Parties that the Agreement not be construed more strictly with regard to one Party than with regard to any other Party; and

references herein to “the date hereof” and “the date of this Agreement” shall be deemed to refer to the date first set forth above.

ARTICLE II

CAPITALIZATION AND PURCHASE AND SALE OF LLC INTERESTS

Section 2.01. Amendment and Capitalization.

(a) On the terms and subject to the conditions set forth herein and in the Preclosing Holdco LLC Agreement, as soon as reasonably practicable after the date hereof and at least one Business Day prior to Closing:

(i) Seller shall cause the SPC Merger to be effective and shall contribute, transfer and convey to Holdco all of Seller’s right, title and interest, as of the time of such contribution, in and to the applicable Transferred Assets (excluding any of the Transferred Assets held directly by Opco pursuant to the SPC Merger or otherwise) free and clear of all Encumbrances, other than Permitted Encumbrances;

(ii) Holdco shall contribute, transfer and convey to Opco all of Holdco’s right, title and interest, as of the time of such contribution, in and to the applicable Transferred Assets not already owned by Opco, free and clear of all Encumbrances, other than Permitted Encumbrances (together with the contribution of $2,000,000 in cash by Holdco on or about February 25, 2010, the SPC Merger and contribution of the applicable Transferred Assets described in Section 2.01(a)(i), the “Contribution”);

(iii) Seller shall contribute a portion of its Holdco LLC Interests to New SPC so that Seller continues to own ninety-eight percent (98%) of the Holdco LLC Interests and New SPC continues to own two percent (2%) of the Holdco LLC Interests immediately after the Contribution;

(iv) “Transferred Assets” shall mean all of the assets, rights, properties, claims, contracts, business and goodwill of Seller and SPC required for, primarily related to, or primarily used, held for use or acquired or developed for use in, the Business as currently conducted, wherever situated and of whatever kind and nature, real or personal, tangible or intangible, whether or not reflected on the books and records of Seller (other than the Excluded Assets), including each of the following assets:

(A) all cash reflected on the books of Opco as of the Closing Date;

(B) Transferred Contracts;

(D) Transferred Technology;

(E) Transferred Equipment;

(F) Transferred Inventory;

(G) Transferred Books and Records;

(H) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by Seller or any of its Affiliates to the extent related to the Transferred Assets (unless such cause of action, lawsuit, judgment, claim or demand is a counterclaim with respect to an Excluded Liability), the Assumed Liabilities or the ownership, use, function or value of any Transferred Asset (unless such cause of action, lawsuit,

judgment, claim or demand is a counterclaim with respect to an Excluded Liability), whether arising by way of counterclaim or otherwise;

(I) all credits, prepaid charges and expenses, deferred charges, advance payments, security and other deposits, prepaid items and duties to the extent related to a Transferred Asset;

(J) all accounts related to Prepaid and Escrowed Liabilities, except for such accounts related to any cash reserves or deposits associated with any Merchant Contract or Prepaid Contract which accounts are required to be maintained or held by Seller pursuant to applicable Network Rules (provided Seller’s rights with respect to the funds in such reserves and deposits are included, to the extent permitted by the Network Rules);

(K) all guaranties, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates to the extent related to any Transferred Asset (unless the liability that is the subject of such guarantee, warranty, indemnity or similar right is an Excluded Liability) or Assumed Liability, including guarantees made by suppliers, manufacturers and contractors to the extent relating to products sold or services provided to Seller or any of its Affiliates;

(L) to the extent assignable, all Governmental Authorizations, and all Non-Governmental Authorizations used by Seller in the Business and all rights, and incidents of interest therein;

(M) to the extent assignable, all rights of Seller under nondisclosure or confidentiality, noncompete or nonsolicitation agreements with current and former employees, consultants and agents of Seller or with third parties, in each case to the extent relating to the Business or the Transferred Assets (or any portion thereof) other than any such agreements relating to the sale of the Business;

(N) all third-party property and casualty insurance proceeds, and all rights to third-party property and casualty insurance proceeds, in each case to the extent received or receivable in respect of the Business or the Transferred Assets and not related to an Excluded Liability; and

(O) all goodwill and other intangible assets associated with the Business or the Transferred Assets, including the goodwill associated with the Transferred Intellectual Property.

(b) Nothing herein contained shall be deemed to sell, transfer, assign or convey the Excluded Assets to the Companies, and Seller and its Affiliates shall retain all right, title and interest to, in and under the Excluded Assets. The Transferred Assets included in Sections 2.01(a)(i), (ii) and (iv) include all of the Transferred Assets, subject to paragraph (c) below.

(c) Any assets of the Seller transferred subsequent to the Closing pursuant to the Asset Identification Process shall be considered Transferred Assets as of the date hereof and as of the Closing Date for purposes of the representations and warranties of the Seller set forth herein.

Section 2.02. Assumption of Liabilities; Excluded Liabilities.

(a) On the terms and subject to the conditions set forth herein, Opco shall assume, effective as of at least one Business Day before the Closing, the Assumed Liabilities.

(b) Neither of the Companies will assume or be liable for any Liabilities of Seller or any of its Affiliates that are not Assumed Liabilities (“Excluded Liabilities”) and the Seller shall pay, perform and discharge when due the Excluded Liabilities. For the avoidance of doubt, (i) Excluded Liabilities shall include any and all Liabilities of SPC that are not Assumed Liabilities irrespective of whether any such Liabilities are assumed by operation of law pursuant to the merger of SPC with, and into, Opco, and the Seller shall indemnify the Companies for, and shall pay, perform and discharge when due, such Excluded Liabilities and (ii) Excluded Liabilities shall include, except to the extent included in Assumed Liabilities, the following Liabilities:

(i) all Liabilities of Seller or its Affiliates arising out of, relating to or otherwise in respect of the Business (including any Chargebacks or similar liabilities) with respect to any period or sales prior to the Closing (whether or not discovered before, on or after the Closing) except to the extent provided in the Sponsorship Agreements;

(ii) all Liabilities of Seller or its Affiliates in respect of any services performed by, or on behalf of, Seller or its Affiliates on or before the Closing;

(iii) except to the extent specifically provided in Section 5.05, (A) all Liabilities of Seller or one of its Affiliates arising out of, relating to or with respect to the employment or performance of services, or termination of employment or services by Seller or any of its Affiliates of any individual (including any Applicable Employee) on or before the Closing Date (including relating to Transferred Employees on or before the Closing Date, irrespective of whether such claims are made prior to or after the Closing Date), (B) workers’ compensation claims against Seller or any of its Affiliates that relate to the period on or before the Closing Date, irrespective of whether such claims are made prior to or after the Closing, (C) all Liabilities of Seller or any of its Affiliates arising out of, relating to, or with respect to any Benefit Plan, (D) all Liabilities of Seller or any of its Affiliates arising out of, relating to or with respect to any accrued and unused paid time off, vacation or sick leave calculated as of the Closing Date except Liabilities assumed by Opco pursuant to Section 5.05(d) and (E) any bonuses or incentive compensation (payable in either cash or equity) owed or owing to employees (including any Applicable Employees), independent contractors, officers or directors by Seller or any of its Affiliates for services rendered with respect to any period prior to the Closing Date and any

amounts payable to employees (including any Applicable Employees, independent contractors, officers or directors by Seller or any of its Affiliates in connection with any retention agreement (including, but not limited to, any retention agreement set forth on Schedule 3.8(a))); provided, however, it being understood by Buyer and Seller that any liability for bonuses or incentive compensation (payable in cash or equity) owed or owing for services rendered by a Transferred Employee on or after the Closing Date (other than the retention agreements specified in this Section 2.02(b)(iii)(E)) and paid by Seller shall be reimbursed by Opco to Seller to the extent provided in the Sponsorship Agreements, the Corporate Services Agreement, the Transition Services Agreement and/or the Treasury Services Agreement (collectively, the “Service Agreements”);

(iv) (A) all Liabilities of Seller and its Affiliates arising out of, under or in connection with contracts of Seller or its Affiliates that are not Transferred Contracts, and (B) with respect to Transferred Contracts, all Liabilities in respect of (1) performance by, or on behalf of, Seller and its Affiliates under such Transferred Contracts with respect to any period prior to the Closing or (2) a breach by, or default of, Seller accruing under such contracts with respect to any period prior to the Closing;

(v) all Liabilities of Seller or any of its Affiliates arising out of, under or in connection with any indebtedness of Seller or any of its Affiliates (other than capital leases primarily related to the Business);

(vi) all Liabilities of Seller or any of its Affiliates for Taxes (except for Taxes for which the Companies are expressly responsible pursuant to Section 5.04);

(vii) all Liabilities of Seller or any of its Affiliates in respect of any pending or threatened Legal Proceeding (including, for the sake of clarity, all Liabilities arising from the matters set forth on Schedule 3.7, including any indemnification, contribution or other Liabilities in respect of, arising from or otherwise relating to such Legal Proceedings or the facts and circumstances pursuant to which such Legal Proceedings relate), or any claim, in each case arising out of, relating to or otherwise in respect of (A) the operation of the Business to the extent such Legal Proceeding or claim relates to such operation on or prior to the Closing Date, or (B) any Excluded Assets;

(viii) all Liabilities arising out of, relating to or otherwise in respect of any actual breach of security of, or unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of any personal information, confidential or proprietary data or any other such information maintained or stored by, the Business (other than such breaches occurring in systems maintained by customers and/or service providers of such customers) involving data of customers or other similarly situated individuals, in any case to the extent occurring before the Closing; and

(x) all Liabilities of Seller or any of its Affiliates arising out of, relating to or otherwise in respect of the Excluded Merchants.

For the avoidance of doubt, any Liabilities of the Business to the extent attributable to the operation or the ownership of the Transferred Assets or the Business, from and after the Closing or the employment of the Transferred Employees after the Closing Date shall not constitute Excluded Liabilities.

Section 2.03. Purchase and Sale of LLC Interests. On the terms and subject to the conditions set forth herein, at the Closing:

(a) Seller and New SPC shall cause the Preclosing Holdco LLC Agreement to be amended and restated in its entirety in the form of the Holdco LLC Agreement;

(b) Seller shall sell, transfer and convey to Buyer, and Buyer shall purchase from Seller 51 Class A Units, representing 51% of the outstanding Units (the “Transferred Interests”), free and clear of all Encumbrances, except as set forth in the Holdco LLC Agreement (the “Sale Transaction”);

(c) In consideration of the sale of the Transferred Interests, at the Closing (by wire transfer of immediately available funds to an account or accounts which have been designated by Seller at least two Business Days prior to the Closing Date), Buyer shall pay to Seller an amount in cash equal to $150,450,000 (as it may be adjusted pursuant to this Article II) (the “Cash Purchase Price”); and

(d) Upon the payment by Buyer to Seller of the Cash Purchase Price, Holdco shall duly reflect in its books and records the admittance of Buyer as a member of Holdco and the transfer of the Transferred Interests from Seller to Buyer, and the Holdco LLC Agreement shall be amended to reflect Buyer’s acquisition of the Transferred Interests and its becoming a member of Holdco.

Section 2.04. Cash Expenditure True-Up.

(a) Within 10 Business Days after the date that is 150 days after the Closing Date, Buyer shall prepare, or cause to be prepared, and deliver to Seller a cash expenditure statement (the “Closing Cash Expenditure Statement”) setting forth a good faith calculation in reasonable detail of the cash expenditures of the Business for such 150-day period (“Post-Closing Cash Expenditures”) and a good faith calculation of the amount of any payment required under Section 2.04(e); provided, however, that the Post-Closing Cash Expenditures shall not include any capital expenditures outside the Ordinary Course, any residual payments (including those to Independent Sales Organizations and Agent Banks), any integration costs and transaction costs associated with the transactions contemplated by this Agreement, any losses from sales volume generated after Closing, any referral payments, or any discretionary expenses not contained in the Cash Expenditure Statement, including, but not limited to any incremental costs associated with enhanced employee benefit plans after Closing, any severance or termination expense, hiring expense or retention bonus to Holdco or Opco Employees, acceleration of payments to vendors or prepaid expenses which were not included on the initial Business Plan (as such term is defined in the Holdco LLC Agreement)..

(b) Seller shall complete its review of the Closing Cash Expenditure Statement within 30 days after delivery thereof by Buyer. In the event that Seller determines that the Closing Cash Expenditure Statement has not been prepared on the basis set forth in Section 2.04(a) and/or is otherwise inaccurate, Seller shall, on or before the last day of such 30-day period, so inform Buyer in writing (the “Seller’s Cash Expenditure Objection”), setting forth a specific description of the basis of Seller’s determination and the adjustments to the Closing Cash Expenditure Statement and the corresponding adjustments to the Post-Closing Cash Expenditures that Seller believes should be made. If no Seller’s Objection is received by Buyer on or before the last day of such 30-day period, then the Post-Closing Cash Expenditures set forth on the Closing Cash Expenditure Statement delivered by Seller shall be final. Buyer shall have 30 days from its receipt of Seller’s Cash Expenditure Objection to review and respond to Seller’s Cash Expenditure Objection.

(c) If Seller and Buyer are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in Seller’s Cash Expenditure Objection within 30 days following the completion of Buyer’s review of Seller’s Cash Expenditure Objection, they shall refer any remaining disagreements with respect to matters set forth in Seller’s Cash Expenditure Objection to the CPA Firm which, acting as an expert and not as an arbitrator, shall determine, on the basis set forth in and in accordance with Section 2.04(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Cash Expenditure Statement and the Post-Closing Cash Expenditures require adjustment. Buyer and Seller shall instruct the CPA Firm to deliver its written determination to Buyer and Seller no later than 30 days after the remaining differences underlying Seller’s Cash Expenditure Objection are referred to the CPA Firm. In making such determination, the CPA Firm shall not assign a value to any item greater than the greatest value for such item claimed by Buyer or Seller, or less than the smallest value for such item claimed by Buyer or Seller. The CPA Firm’s determination shall be conclusive and binding upon Buyer and Seller and their respective Affiliates. The fees and disbursements of the CPA Firm pursuant to this Section 2.04 shall be borne by Seller and Buyer in inverse proportion to the amount awarded to the Parties by the CPA Firm as compared to the total amount in dispute, as determined by the CPA Firm. Buyer and Seller shall make readily available to the CPA Firm all relevant books and records and any work papers (including those of their respective accountants, to the extent permitted by such accountants) relating to the Closing Cash Expenditure Statement and Seller’s Cash Expenditure Objection and all other items reasonably requested by the CPA Firm in connection therewith, and may submit such additional data and information to the CPA Firm as each deems appropriate.

(d) Buyer and the Companies shall provide to Seller and its accountants full access to the books and records of the Business and to any other information, including work papers of its accountants (to the extent permitted by such accountants), and to any employees during regular business hours and on reasonable advance notice, to the extent necessary for Seller to review the Closing Cash Expenditure Statement and prepare materials for the CPA Firm in connection with Section 2.04(c).

(e) If the Post-Closing Cash Expenditures (as adjusted pursuant to this Section 2.04, if applicable) exceed the Projected Cash Expenditures by more than $1,000,000, then

Seller shall pay to Opco (by wire transfer of immediately available funds) an amount in cash, if any, equal to the amount by which (x) the Post-Closing Cash Expenditures exceed (y) $1,000,000 plus the Projected Cash Expenditures.

Section 2.05. Closing. Subject to the terms and conditions of this Agreement, the Closing shall take place at a mutually acceptable location on April 1, 2010, or later, promptly following the fulfillment or waiver of the conditions set forth in Section 6.01, Section 6.02 and Section 6.03 and shall be deemed effective as of 12:01 a.m. Eastern Time on the Closing Date.

Section 2.06. Deliveries by Buyer. At the Closing, Buyer shall deliver, or cause to be delivered, to Seller the following:

(a) the Cash Purchase Price in immediately available funds by wire transfer to an account or accounts which have been designated by Seller at least two Business Days prior to the Closing Date;

(b) a duly executed counterpart of each of the Ancillary Agreements to which Buyer is a party and a duly executed counterpart to the Holdco LLC Agreement;

(c) a duly executed counterpart to an assignment and assumption agreement pursuant to which Seller will transfer the Transferred Interests to Buyer;

(d) evidence of the obtaining of, or the filing with respect to, the Buyer Required Approvals;

(e) the certificate to be delivered pursuant to Section 6.02(e); and

(f) secretary’s certificates, evidence of corporate existence and good standing, evidence of corporate approvals and other similar documents, and such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller, as may be required to give effect to this Agreement.

Section 2.07. Deliveries by Seller.

(a) At the Closing, Seller and New SPC, as applicable, shall deliver, or cause to be delivered, to Buyer the following:

(i) a duly executed counterpart of each of the Ancillary Agreements to which Seller and/or New SPC is a party;

(ii) a duly executed counterpart to an assignment and assumption agreement pursuant to which Seller will transfer the Transferred Interests to Buyer;

(iii) evidence of the obtaining of, or the filing with respect to, the Seller Required Approvals and the Company Required Approvals;

(iv) the certificate to be delivered pursuant to Section 6.03(d);

(v) a certificate of nonforeign status from Seller that complies with Section 1445 of the Code;

(vi) secretary’s certificates, evidence of legal existence and good standing, evidence of corporate approvals and other similar documents, and such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement; and

(vii) evidence, reasonably satisfactory to Buyer, of the effectiveness of the merger of SPC with and into Opco and the Contribution each in accordance with the terms of this Agreement.

(b) At the time of the Contribution, Seller shall deliver, or cause to be delivered, to Opco the following:

(i) bills of sale or other appropriate documents of transfer, in form and substance reasonably acceptable to Buyer, transferring the tangible personal property included in the applicable Transferred Assets to Opco;

(ii) assignments, in form and substance reasonably acceptable to Buyer and, if applicable, as required by any Government Entity with which any of Seller’s or any of its Affiliates’ rights to any Transferred Intellectual Property have been filed, assigning to Opco such Transferred Intellectual Property including a trademark assignment agreement;

(iii) assignment and assumption agreements, in form and substance reasonably acceptable to Seller and Buyer, as may be necessary to effect the assignment to Opco of the applicable Transferred Contracts or other applicable Transferred Assets, other than tangible personal property included therein;

(iv) the Transferred Books and Records;

(v) a duly executed counterpart of each of the Ancillary Agreements to which Seller is a party; and

(vi) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller and Buyer, as may be required to give effect to the Contribution.

Section 2.08. Deliveries by Opco and Holdco.

(a) Contemporaneously with the Contribution, Opco shall deliver to Seller or Holdco, as appropriate, the following:

(i) such instruments of assumption and other instruments or documents, in form and substance reasonably acceptable to Seller and Buyer, as may be

necessary to effect Opco’s receipt and assumption of the applicable Transferred Assets and Assumed Liabilities;

(ii) a duly executed counterpart of each of the applicable Ancillary Agreements to which Opco is a party;

(iii) such other customary instruments of transfer, assumptions, filings or documents, in form and substance reasonably satisfactory to Seller and Buyer, as may be required to give effect to the Contribution; and

(iv) evidence, reasonably satisfactory to Seller and Buyer, of the effectiveness of the merger of SPC with and into Opco.

(b) At the Closing, Opco shall deliver the resignations, effective as of the Closing, of each officer of Opco.

(i) the executed Opco LLC Agreement to Buyer and Seller; and

(ii) the resignations, effective as of the Closing, of each officer of Holdco.

Section 2.09. Nonassignability of Assets. Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 5.14, to the extent that the sale, assignment, sublease, transfer, conveyance or delivery or attempted sale, sublease, assignment, transfer, conveyance or delivery to the Companies of any asset that would be a Transferred Asset or any claim or right or any benefit arising thereunder or resulting therefrom is prohibited by any applicable Law or would require any governmental or third-party authorizations, approvals, consents or waivers, and such authorizations, approvals, consents or waivers shall not have been obtained prior to the Closing, the Closing shall proceed without the sale, assignment, sublease, transfer, conveyance or delivery of such asset unless such failure causes a failure of any of the conditions to Closing set forth in Article VI, in which event the Closing shall proceed only if the failed condition is waived by the Party (or Parties, as applicable) entitled to the benefit thereof. Subject to the Service Agreements, in the event that the Closing proceeds without the transfer, sublease or assignment of any such asset that would be a Transferred Asset or any claim or right or any benefit arising thereunder or resulting therefrom, then following the Closing, the Parties hereto shall use their commercially reasonable efforts and cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers; provided, however, that none of the parties hereto or any of their Affiliates shall be required to pay any consideration therefor other than filing, recordation or similar fees, which shall be paid by the Party who is required by Law or course of dealing to make such payment. Pending such authorization, approval, consent or waiver, the Parties hereto shall cooperate with each other in any mutually agreeable, reasonable, contractually permissible and lawful arrangements designed to provide to the Companies the benefits of use of such asset and to Seller or its Affiliates the benefits, including any indemnities, that they would have obtained had the asset been conveyed to the Companies at the Closing, including access to all accounts related to Prepaid and Escrowed Liabilities. Once authorization, approval, consent or waiver for the sale, assignment, sublease, transfer, conveyance or delivery of any such asset not

sold, assigned, subleased, transferred, conveyed or delivered at the Closing is obtained, Seller shall, or shall cause its relevant Affiliates to, assign, transfer, convey and deliver such asset to the Companies at no additional cost. Subject to the Service Agreements, to the extent that, within 180 days of the Closing Date, it is determined by Seller, with the consent of Buyer, such consent not to be unreasonably withheld or delayed, that any such asset cannot be transferred or the full benefits of use of any such asset cannot be provided to the Companies following the Closing pursuant to this Section 2.09, then Seller and the Companies shall enter into such arrangements (including subleasing, sublicensing or subcontracting, and including access to all accounts related to Prepaid and Escrowed Liabilities) to provide to the parties hereto the economic (taking into account Tax costs and benefits) and operational equivalent, to the extent mutually agreeable, reasonable, contractually permissible and lawful, of obtaining such authorization, approval, consent or waiver and the performance by the Companies of the obligations thereunder, and upon the entering into of such arrangement by Seller and the Companies, such asset shall no longer be determined to be a Transferred Asset. Seller shall hold in trust for and pay to the Companies promptly upon receipt thereof all income, proceeds and other moneys received by Seller or any of its Affiliates in connection with its use of any asset (net of any Taxes and any other costs imposed upon Seller or any of its Affiliates) in connection with the arrangements under this Section 2.09.

Section 2.10. Asset Identification Process. During the period between the date hereof and the Closing, Seller and Buyer shall cooperate with each other in good faith and use reasonable best efforts to identify more specifically with respect to all of the assets other than the assets set forth in Section 2.01(a)(iv)(A) — (O) (which reflects assets that definitively will be Transferred Assets) those assets that are required for, primarily related to, or primarily used, held for use, or were acquired or developed for use, in the Business, as currently conducted and proposed to be conducted by Seller and its Affiliates and the manner in which such assets will be transferred to, or rights to use such assets will be obtained for, Opco (the “Asset Identification Process”). Each Party shall, and shall cause its Affiliates to, promptly execute, acknowledge and deliver any assurances or documents or instruments of transfer reasonably requested by another Party in accordance with Asset Identification Process.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth in the disclosure schedules accompanying this Agreement delivered by the Seller, each referencing specifically the applicable definition or representation and warranty, the Seller represents and warrants to Buyer on behalf of itself and New SPC, as applicable, as follows:

Section 3.01. Organization and Qualification; Capitalization. Seller represents and warrants to Buyer as follows:

(a) Seller is a national bank duly organized, validly existing and in good standing under the laws of the United States and has all requisite power and authority to own, lease and operate its assets and to carry on the Business as currently conducted. New SPC is a Delaware corporation, duly formed, validly existing and in good standing the laws of Delaware and has all requisite power and authority to own, lease and operate its assets and carry on its business as currently conducted and proposed to be conducted. As of the date

hereof and the Closing, each of the Companies is and will be a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware. As of the date hereof and the Closing, each of the Companies have and will have all requisite limited liability company power and authority to own, lease and operate its assets and to carry on the Business as currently conducted. As of the Closing, each of the Companies shall be duly qualified to do business and in good standing as a foreign limited liability company in each jurisdiction where the ownership or operation of the Transferred Assets or the conduct of the Business requires such qualification, except for such failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, impair or delay the Companies’ ability to perform their respective obligations hereunder.

(b) Upon the consummation of each of the Contribution and the Closing, the capital structure of Holdco shall be properly reflected in the Holdco LLC Agreement or the Preclosing Holdco LLC Agreement, as applicable. As of the date hereof and immediately prior to the Closing, (i) all of the Holdco LLC Interests have and will have been duly authorized and validly issued and are and will be fully paid and nonassessable, (ii) 100% of the Holdco LLC Interests are and will be owned beneficially and of record by Seller and New SPC, free and clear of all Encumbrances, (iii) there are and will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Seller, New SPC or Holdco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Holdco, and no securities or obligations evidencing such rights have been or will be authorized, issued or outstanding, other than as set forth in the Holdco LLC Agreement, (iv) the Holdco LLC Interests are and will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Holdco LLC Interests other than as set forth in the Holdco LLC Agreement or as created by Buyer or its Affiliates and (v) there is and will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Holdco LLC Interests or other equity interests of Holdco, except as created by Buyer or its Affiliates, other than as set forth in the Holdco LLC Agreement. Holdco is a direct and indirect wholly-owned subsidiary of Seller and has no historical operations other than as described in this Agreement.

(c) Upon the consummation of each of the Contribution and the Closing, the capital structure of Opco shall be properly reflected in the Opco LLC Agreement. As of the date hereof and the Closing, (i) all of the Opco LLC Interests have and will have been duly authorized and validly issued and will be fully paid and nonassessable, (ii) 100% of the Opco LLC Interests are and will be owned beneficially and of record by Holdco, free and clear of all Encumbrances, (iii) there are and will be no preemptive or other outstanding rights, options, warrants, conversion rights, redemption rights, repurchase rights, agreements, arrangements or commitments of any character under which Holdco or Opco is or may become obligated to issue or sell, or giving any Person a right to subscribe for or acquire, or in any way dispose of, any membership interests or other equity interests, or any

securities or obligations exercisable or exchangeable for or convertible into any membership interests or other equity interests of Opco, and no securities or obligations evidencing such rights have been or will be authorized, issued or outstanding, (iv) the Opco LLC Interests are and will not be subject to any voting trust agreement or other contract, agreement or arrangement restricting or otherwise relating to the voting, dividend or similar rights or disposition of the Opco LLC Interests other than as set forth in the Opco LLC Agreement and (v) there is and will be no phantom stock or similar rights providing economic benefits based, directly or indirectly, on the value or price of the Opco LLC Interests or other equity interests of Opco. Opco is a wholly-owned subsidiary of Holdco and has no historical operations other than as described in this Agreement.

(d) As of the date hereof and at all times prior to the SPC Merger, SPC is a corporation duly organized, validly existing and in good standing under the laws of the State of Nebraska and has all requisite corporate power and authority to own, lease and operate its assets and to carry on the Business as currently conducted and is not subject to any insolvency, liquidation, receivership, conservatorship or other similar proceeding. As of the date hereof, SPC is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ownership or operation of its assets or the conduct of its business requires such qualification, except for failures to be so qualified or in good standing, as the case may be, that would not, individually or in the aggregate, be material to the Business or the consummation of the Transactions. Prior to the SPC Merger, SPC shall be a wholly-owned subsidiary of Seller and will have had no historical operations other than the conduct of the Business.

Section 3.02. Authorization. Seller has full power and authority to execute and deliver this Agreement, and Seller, New SPC and each of the Companies will have such power and authority at Closing to execute and deliver each of the Ancillary Agreements and other Closing documents referenced herein to which it is a party and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Seller of this Agreement has been duly and validly authorized and of each of the Ancillary Agreements and other Closing documents referenced herein to which Seller, New SPC and the Companies are a party will be duly and validly authorized at Closing, and no additional corporate, shareholder or limited liability company authorization or consent is required in connection with the execution, delivery and performance by Seller and the Companies of this Agreement or will be required in connection with the execution, delivery and performance by Seller, New SPC and the Companies at Closing of any of the Ancillary Agreements and other Closing documents referenced herein to which they are a party. Each Affiliate of Seller has or prior to the Closing will have full corporate power and authority to execute and deliver each Ancillary Agreement or other Closing document referenced herein to which it is a party and to perform its obligations thereunder. The execution, delivery and performance by each Affiliate of Seller of each Ancillary Agreement or other Closing document referenced herein to which it is a party have been or prior to the Closing will have been duly and validly authorized, and no additional corporate or shareholder authorization or consent is or will be required in connection with the execution, delivery and performance by any Affiliate of Seller of the Ancillary Agreements or other Closing documents referenced herein to which such Affiliate is a party or signatory.

Section 3.03. Consents and Approvals. Except as set forth on Schedule 3.3, no consent, approval, waiver, authorization, notice or filing from or with any Government Entity or any other

Person is required to be made or obtained by Seller, New SPC, SPC or the Companies (a) by virtue of the execution, delivery or performance of this Agreement; (b) to avoid the material breach of any Transferred Contract, the creation of an Encumbrance on any of the assets or properties of the Business, or the creation in any Person the right to terminate, cancel, modify or accelerate any Transferred Contract as a result of the Transactions; or (c) to enable Opco to continue the operations of the Business following the Closing Date as presently conducted; provided, however, that with respect to any Transferred Contracts, the representation and warranty set forth in subparts (a), (b) and (c) above is made only with respect to Material Business Contracts.

Section 3.04. Noncontravention. The execution, delivery and performance by Seller, New SPC, SPC and each of the Companies of this Agreement and the Ancillary Agreements and other Contribution and Closing documents referenced herein to which they are a party, and the consummation of the Transactions, do not, in the case of this Agreement, and will not as of Contribution and the Closing, in the case of this Agreement, the Ancillary Agreements and other Contribution and Closing documents referenced herein, (a) violate any provision of the Articles of Association, Bylaws or other organizational documents of Seller, New SPC, SPC or the Companies or the Preclosing Holdco LLC Agreement, (b) assuming the receipt of all consents, approvals, waivers and authorizations and the making of the notices and filings set forth on Schedule 3.3, conflict with, or result in the breach of, or constitute a default under, or result in the termination, cancellation, modification or acceleration (whether after the filing of notice or the lapse of time or both) of any right or obligation of Seller, any of its Affiliates or the Companies, as the case may be, under, or result in a loss of any benefit to which Seller, any of its Affiliates or the Companies, as the case may be, is entitled under, any Transferred Contract, or result in the creation of any Encumbrance upon any of the Transferred Assets, or (c) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth on Schedule 3.3, or required to be made or obtained by Buyer, violate or result in a breach of or constitute a default under any Law to which any of Seller, any of its Affiliates or the Companies are subject, or under any Governmental Authorization, other than, in the case of clause (b), conflicts, breaches, terminations, defaults, cancellations, accelerations, losses, violations or Encumbrances that would not, individually or in the aggregate, materially and adversely affect the Business or materially impair or delay the ability of any of Seller or the Companies to perform its respective obligations hereunder.

Section 3.05. Binding Effect. This Agreement, when executed and delivered by Buyer, constitutes, and each of the Ancillary Agreements and other Contribution and Closing documents referenced herein to which any of Seller, New SPC, SPC or the Companies are a party, when executed and delivered by Seller and the Companies, Buyer and the other parties thereto, as applicable, will constitute a valid and legally binding obligation of Seller, New SPC, SPC and such Companies, as applicable, enforceable against Seller, New SPC, SPC and such Companies, as applicable, in accordance with its respective terms, subject to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts in granting equitable remedies.

Section 3.06. Financial Statements.

(a) Set forth on Schedule 3.6(a) is (a) a copy of the unaudited balance sheets as of December 31, 2007 and 2008 and unaudited statement of income for the years ended

December 31, 2007 and 2008, of SPC (the “Historical Financial Statements”) and (b) a copy of the unaudited balance sheet and statement of income of SPC as of and for the period ending December 31, 2009 (the “Interim Financial Statements” and, together with the Historical Financial Statements, the “Financial Statements”). The Financial Statements have been prepared based on extracted and internal segment reports from SPC, are true, correct and complete, and fairly present, in all material respects, the financial condition and results of operations of SPC as of the dates thereof or the periods then ended and, solely to the extent specifically identified on Schedule 3.6(a), have been prepared in accordance with GAAP methodologies on a basis consistent with past practices throughout the periods involved, except for any footnotes required thereby and except in the case of the Interim Financial Statements, for normal year-end adjustments.

(b) Set forth on Schedule 3.6(b) is a copy of the unaudited operating results of the Business for the years ended December 31, 2007, 2008 and 2009. The operating results set forth on Schedule 3.6(b) have been prepared based on extracted and internal segment reports from the Seller, are true, correct and complete, and fairly present, in all material respects, the operating results of the Business as of the dates thereof or the periods then ended.

Section 3.07. Litigation and Claims. Except as set forth on Schedule 3.7:

(a) There is no Legal Proceeding pending, or to the Seller’s Knowledge, threatened, against any of Seller or any of its Affiliates in connection with the Transferred Assets, the Business or the Transactions, other than those that, if adversely determined, do not and would not reasonably be expected to (i) involve a claim for damages to the Business in excess of $300,000 (ii) lead to the seeking of injunctive relief, or (iii) materially impair or delay the ability of any of Seller, New SPC, SPC or the Companies to effect the Closing.

(b) None of Seller, its Affiliates, the Business or the Transferred Assets is subject to any Order affecting the Business, the Transferred Assets or the Transaction, other than those that, if adversely determined, do not and would not reasonably be expected to (i) involve a claim for damages to the Business in excess of $300,000, (ii) seek injunctive relief, or (iii) materially impair or delay the ability of any of Seller, New SPC, SPC or the Companies to effect the Closing.

Section 3.08. Employees and Employee Benefits.

(a) Except as set forth in Schedule 3.8(a), Seller has provided to Buyer a complete and accurate list of the following information for each Applicable Employee: current base salary or wages, as applicable, annual cash bonus opportunity plans, as applicable, annual paid time off or other vacation entitlement and any paid time off or other vacation carry-over from prior years and total balance of remaining accrued but unused paid time off and accrued but unused sick leave, or paid time off, as applicable, and years of credited service for purposes of vesting and eligibility to participate under any Benefit Plan. Except as set forth in Schedule 3.8(a), neither Seller nor any of its Affiliates is a party to any

employment agreement of any kind, oral or written, with an Applicable Employee as of the date hereof. Except as set forth in Schedule 3.8(a), to the Knowledge of Seller, no Critical Employee has manifested a current intent to terminate his or her employment with SPC or Seller or any of its Affiliates, as applicable, or an intent to terminate his or her employment with the Companies following the consummation of the Transactions.

(b) Schedule 3.8(b) sets forth a correct and complete list of all Benefit Plans. Seller has made available to Buyer true and complete copies of the most recent plan document (including all amendments thereto and trust agreements and insurance contracts associated with such plan document) and the most recent summary plan description (or a written description of all nonwritten Benefit Plans) and Forms 5500 and 990 (if applicable) for each Benefit Plan.

(c) The Benefit Plans have been maintained and operated in all material respects in accordance with their terms and with the Laws (including, as applicable, ERISA and the Code). There are no pending or, to the Seller’s Knowledge, threatened actions, claims or lawsuits (other than routine claims for benefits (or as disclosed in Schedule 3.8(c)) or audits or investigations by any Governmental Entity arising from or relating to the Benefit Plans. To the Seller’s Knowledge, neither it nor any of its Affiliates have any direct or indirect liability with respect to any misclassification of any person as an independent contractor rather than as an employee or with respect to any employee leased from another employer. Except as set forth on Schedule 3.8(c), no independent contractor has been engaged by Seller or any of its Affiliates to provide services to the Business for a period of at least 12 months.

(d) Except as provided in Schedule 3.8(d), none of the Benefit Plans provides for post employment health or welfare benefit for any person beyond his or her retirement or other termination of employment or service, except (i) as may be required under COBRA Coverage or similar state law, or (ii) disability benefits under a welfare plan that is fully provided for by insurance.

(e) Except as provided in Schedule 3.8(e), neither the execution and delivery of this Agreement nor the consummation of the Transactions will (i) result in any payment becoming due to any Applicable Employee under a Benefit Plan or other compensatory arrangement (including but not limited to any severance benefits), (ii) increase any benefits otherwise payable under any Benefit Plan to any Applicable Employee, or (iii) result in the acceleration of the time of payment or vesting of any such benefits under any Benefit Plan to any Applicable Employee. The consummation of the Transactions contemplated by this Agreement will not cause any payments to be made by the Companies, Seller or any of their respective Affiliates that would be nondeductible (in whole or in part) under Section 280G of the Code.

(f) Each Benefit Plan intended to be qualified under Section 401 of the Code has received a favorable determination letter from the Internal Revenue Service covering all applicable Laws, and no circumstances exist with respect to the operation of such Benefit Plan that could reasonably be expected to result in the imposition of any material liability,

penalty or tax under ERISA or the Code, or to Seller’s Knowledge cause the loss of such qualification or exemption under Section 501(a) of the Code.

(g) Except as provided in Schedule 3.8(g), neither Seller nor any of its Affiliates has any liability, contingent or otherwise, under any Benefit Plan that is subject to Title IV of ERISA or Section 412 of the Code or is described in Section 413 of the Code or Section 3(37) of ERISA or Section 3(40) of ERISA (“Pension Plan”).

(h) Each contribution required to be made to a Pension Plan, whether required to be made to avoid the incurrence of an accumulated funding deficiency, the notice or lien provisions of §302(f) of ERISA, or otherwise, has been timely made. No waiver of an accumulated funding deficiency or extension of amortization periods has been received with respect to any Pension Plan. No liability to the Pension Benefit Guaranty Corporation (“PBGC”) (other than required insurance premiums, all of which have been paid) has been incurred by the Seller or any Affiliate (including any affiliate within the meaning of Code Sections 414 (b), (c), (m), or (o) or Section 4001 (a)(14) of ERISA) with respect to any Pension Plan. There has not been any ERISA Reportable Event, or any other event or condition which presents a material risk of termination of any Pension Plan by the PBGC. No termination of any Pension Plan has occurred or is reasonably expected to occur on or before the Closing Date.

Section 3.09. Compliance With Laws. Except as disclosed on Schedule 3.9, (a) the Business has been for the period beginning January 1, 2007 and currently is being conducted in compliance in all material respects with all applicable Laws, (b) with respect to the Business, neither Seller nor any of its Affiliates have (i) received any written notice alleging any violation under any applicable Law or (ii) received or entered into any Order and (c) the Business has in full force and effect all Governmental Authorizations and Non-Governmental Authorizations necessary for the conduct of the Business as currently conducted other than those the absence of which is immaterial, and such Governmental Authorizations and Non-Governmental Authorizations shall not be adversely effected or lost upon the consummation of the Transactions; it being understood that nothing in this representation is intended to address any compliance issue that is specifically addressed by any other representation or warranty set forth herein. Seller does not maintain or conduct with respect to the Business, and since January 1, 2007 Seller has not maintained or conducted, with respect to the Business, any business, investment, operation or other activity in or with (A) any country or person targeted by any of the economic sanctions of the United States of America administered by the United States Treasury Department’s Office of Foreign Assets Control; (B) any person appearing on the list of Specially Designated Nationals and Blocked Persons issued by the United States Treasury Department’s Office of Foreign Assets Control; or (C) any country or person designated by the United States Secretary of the Treasury pursuant to the USA PATRIOT Act as being of “primary money laundering concern.”

Section 3.10. Intellectual Property.

(a) Schedule 3.10(a) sets forth a complete and accurate list of all (i) applications and registrations for Trademarks owned by Seller or any of its Affiliates and (ii) material unregistered Trademarks owned by Seller or any of its Affiliates, in each of clauses (i) and (ii), that are primarily used, held for use or acquired or developed for use in the Business as

currently conducted and proposed to be conducted by Seller and its Affiliates. Schedule 3.10(a) lists (A) the jurisdictions in which each such item has been issued or registered, or in which any such application for such issuance and registration has been filed, (B) the record owner or applicant and (C) the registration or application date and number, as applicable. All of Seller’s or its Affiliates’ rights to the Intellectual Property set forth on Schedule 3.10(a) that is primarily used, held for use or acquired or developed for use in the Business is included in the Transferred Intellectual Property, except to the extent specifically included in Schedule 1.1(f) as Excluded Assets, or to the extent specifically included as Seller Licensed Intellectual Property subject to the IP/Software License Agreement, the Trademark License Agreement or the Tradename License Agreement, and will be exclusively owned by Opco at the Closing.

(b) All of the Intellectual Property set forth in Schedule 3.10(a) owned by Seller or any of its Affiliates is subsisting and all necessary registration, maintenance, renewal and other relevant filing fees due through the date hereof in connection therewith have been timely paid and all necessary documents and certificates in connection therewith have been timely filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of maintaining such registered Intellectual Property in full force and effect. There are no filings, payments or similar actions that must be taken by Opco within 30 days following the Closing Date for the purposes of obtaining, maintaining, perfecting or renewing any such registrations and applications.

(c) Except as set forth in Schedule 3.10(c), Seller and its Affiliates own exclusively or have the right to use (pursuant to valid and enforceable agreements) all Transferred Intellectual Property, Transferred Technology, and Seller Licensed Intellectual Property currently used or proposed to be used in the Business by Seller and its Affiliates and all Intellectual Property and Technology used in connection with the Service Agreements, except where the lack of such right would not, individually or in the aggregate, have a Material Adverse Effect on the operation of the Business. The Transferred Intellectual Property, the Transferred Technology and the Seller Licensed Intellectual Property, together with the Intellectual Property and Technology used in connection with the Service Agreements, includes all of the Intellectual Property and Technology necessary and sufficient for the conduct of the Business in all material respects as currently conducted and proposed to be conducted by Seller and its Affiliates and, immediately after the Closing, necessary for Opco to continue to operate and conduct the Business in all material respects as currently conducted and proposed to be conducted by Seller and its Affiliates. No employee, former employee, consultant or independent contractor of Seller or any of its Affiliates has any right, title or interest, directly or indirectly, in whole or in part, in any material Transferred Intellectual Property or Transferred Technology owned by Seller or any of its Affiliates. To the Seller’s Knowledge, no employee, former employee, consultant or independent contractor of Seller or any of its Affiliates engaged in the Business is, as a result of or in the course of such employee’s, former employee’s, consultant’s or independent contractor’s engagement, in default or breach of any material term of any employment agreement, nondisclosure agreement, assignment of invention agreement or similar agreement with a third party.

(d) All of the Transferred Intellectual Property and Seller Licensed Intellectual Property owned by Seller or any of its Affiliates are valid and enforceable. Except as set forth in Schedule 3.7, neither the conduct of the Business nor any of the Transferred Intellectual Property, Transferred Technology or Seller Licensed Intellectual Property owned by Seller or any of its Affiliates, the Intellectual Property and Technology used in connection with the Service Agreements and owned by Seller or any of its Affiliates or the products sold or services provided by Seller or any of its Affiliates in connection with the Business infringes upon, constitutes or results from a misappropriation of or otherwise violates the Intellectual Property rights of any other Person. To the Seller’s Knowledge, none of the Transferred Intellectual Property, Transferred Technology or Seller Licensed Intellectual Property owned by Seller or any of its Affiliates is being infringed upon, misappropriated or violated by any other Person.

(e) Seller and its Affiliates have all rights necessary to (1) grant the licenses and other rights granted under the IP/Software License Agreement, the Trademark License Agreement and the Tradename License Agreement and (2) provide the services and other rights defined by the Service Agreements.

(f) Neither the execution of this Agreement, the consummation of the transactions contemplated by this Agreement, nor the conduct of the business and operations of Seller or any of its Affiliates as currently conducted and proposed to be conducted will result in Opco, Seller or any of its Affiliates granting to any third party any right to any Technology or Intellectual Property owned by, or licensed to, Seller and its Affiliates.

(g) Except as set forth in Schedule 3.7, there is no litigation, opposition, cancellation, Legal Proceeding, objection or claim pending, asserted in writing or, to the Seller’s Knowledge, threatened by any third party against Seller or any of its Affiliates, before any court or tribunal (including the United States Patent and Trademark Office or equivalent authority anywhere in the world) concerning the exclusive ownership, validity, registerability, enforceability, infringement, misappropriation or use of any Transferred Intellectual Property, Transferred Technology or Seller Licensed Intellectual Property owned by Seller or any of its Affiliates or any of the Intellectual Property and Technology used in connection with the Service Agreements and owned by Seller or any of its Affiliates, nor has any claim or demand been made in writing against Seller or any of its Affiliates by any third party that (i) challenges the validity, enforceability, use or exclusive ownership of any Transferred Intellectual Property, Transferred Technology, Seller Licensed Intellectual Property or any of the Intellectual Property and Technology used in connection with the Service Agreements or (ii) alleges any infringement, misappropriation or violation of any Intellectual Property of any third party, or unfair competition or trade practices, by Seller or any of its Affiliates, and Seller is not aware of any basis for any such claim or demand.

(h) Seller and its Affiliates (i) have taken commercially reasonable measures to protect, maintain and preserve the (A) operation and security of their Software, firmware, middleware, servers, systems, networks, workstations, data communication lines and all other information technology equipment used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates, (B) the secrecy and confidentiality of all Trade Secrets and confidential and

proprietary information used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted by Seller and its Affiliates and (C) Intellectual Property material to the Business (ii) abide by all internal policies and applicable Laws regarding the collection, use and disclosure of personally identifiable and other confidential information, including customer and client information, and (iii) are not subject to any pending or, to the Seller’s Knowledge, threatened claim that alleges a breach of any of the foregoing with respect to the Business.

(i) The Transferred Software and the Software that is included in the Seller Licensed Intellectual Property, unless modified other than by or for Seller or any of its Affiliates, conform in all material respects to all written specifications for their use in the conduct of the Business as currently conducted and are free in all material respects to bugs, errors, viruses, malware and other contaminants.

(j) Schedule 3.10(j) sets forth a complete and accurate list of (i) all Transferred Software owned exclusively by Seller and its Affiliates and that is material to the Business, (ii) all other material Software primarily used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted in the Business that is not exclusively owned by Seller and its Affiliates, (iii) all other material Software used, held for use or acquired or developed for use in the Business as currently conducted and proposed to be conducted in the Business that is not subject to the foregoing (i) or (ii), but in each case excluding “shrink wrap,” “click through,” “browse wrap,” commercial-off-the-shelf or other similar software available on reasonable terms for a license fee of no more than $150,000, and (iv) all Transferred Data.

(k) Except to the extent contained in Software licensed to Seller or any of its Affiliates by a third party, no open source Software, freeware or other Software distributed under similar licensing or distribution models (including Software licensed or distributed under GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL), the Artistic License, the Mozilla Public License, the Netscape Public License, the Sun Community License (SCSL), the Sun Industry Standards License (SISL), the BSD License or the Apache License) has been incorporated into any Transferred Software owned by Seller or any of its Affiliates that would in any way obligate Seller or any of Affiliates to disclose to any third party the source code for any such Transferred Software. Neither the Seller nor any of its Affiliates has provided, or is obligated to provide, to any third party, the source code for any Software owned by the Seller or any of its Affiliates that is included in the Transferred Software.

Section 3.11. Labor.

(a) Neither Seller nor its Affiliates are or have ever been a party to or bound by any labor agreement, union contract or collective-bargaining agreement with respect to the Business or any Applicable Employee.

(b) For the past three years there have been no and there are no pending, or to the Seller’s Knowledge, threatened, strike, walkout or other work stoppage or any union-organizing effort by or on behalf of any of the Applicable Employees.

(c) For the past three years there have been no and there are no unfair labor practice charges or complaints against any of Seller or any of its Affiliates in connection with the Business or any Applicable Employee pending, or to Seller’s Knowledge, threatened, before the National Labor Relations Board or other Government Entity, and to Seller’s Knowledge, there is no legal basis for such charge or complaint.

(d) Except as set forth on Schedule 3.11(d), Seller and its Affiliates operate, and for the past three years have operated, the Business in compliance in all material respects with all Laws relating to the employment of labor, including all such laws, regulations and orders relating to wages, hours, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act and any similar state or local “mass layoff” or “plant closing” Law (“WARN”), collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security Taxes and any similar Tax, and there has been no “mass layoff” or “plant closing” as defined by WARN with respect to the Business within the six months prior to Closing.

(e) As of the date hereof, there are no labor or employment claims, grievances, arbitration demands, actions, suits or disputes pending or, to the Seller’s knowledge, threatened involving the Seller and its Affiliates or any of its subsidiaries and any of their employees or former employees, except for routine benefit claims.

Section 3.12. Certain Transferred Contracts.

Schedule 3.12 sets forth the following Transferred Contracts (the “Material Business Contracts”), provided, that a Material Business Contract referenced by more than one description need only be listed once on Schedule 3.12:

(a) each Merchant Contract with a Top Merchant Customer;

(b) each Prepaid Contract with a Top Prepaid Customer;

(d) each Independent Sales Organization Contract and/or Agent Bank Contract with a Top ISO;

(e) any agreement for the lease of personal property related to the Business to or from any Person pursuant to which Seller or its Affiliates made lease payments in excess of $100,000 during the twelve-month period ended December 31, 2009 or for which the Business has an obligation to make payments during the 2010 calendar year in excess of $100,000;

(f) any agreement for the purchase of materials, supplies, products, or other personal property or any capital expenditures, or for the receipt of services, related to the Business pursuant to which Seller or its Affiliates made payments in excess of $100,000 during the twelve-month period ended December 31, 2009 or for which the Business has an obligation to make payments during the 2010 calendar year in excess of $100,000;

(g) any agreement for the distribution or sale of supplies, products, or other personal property, or for the furnishing of services which accounted for revenues of the Business in excess of $100,000 during the twelve-month period ended December 31, 2009 or for which the Business is expected to receive revenue during the 2010 calendar year in excess of $100,000;

(h) any contract, lease or sublease concerning the use, occupancy, management or operation of any real property related to the Business;

(i) any agreement concerning a partnership or joint venture or other agreements involving the sharing of profits and losses of the Business with any partnership, joint venture, or other jointly formed entity;

(j) any agreement which creates or causes the incurrence, assumption or guarantee of any indebtedness or which provides for the indemnification of another Person, or which has created any Lien on any Transferred Assets, except for any such agreement entered into in the Ordinary Course;

(k) any agreement concerning confidentiality, except for such agreements entered into in connection with transactions or communications with third parties in the Ordinary Course or any settlement agreement related to the Business;

(l) any settlement agreements related to the Business in which Seller or its Affiliates settled or agreed to settle for an amount in excess of $100,000 since January 1, 2007;

(m) any agreement material to the operations of the Business to which Seller, or any Affiliate of Seller is a party other than those set forth on Schedules 3.12 (e), (f) or (g);

(n) each Independent Sales Organization Contract and/or Agent Bank Contract with a Top ISO which contains, and any other agreements containing, covenants restricting the business activity or limiting the freedom of the Seller to engage in the Business or SPC to engage in any business or, in either case, to compete with any Person or restricting the use of information received pursuant to any such agreements (other than agreements entered into in the Ordinary Course with covenants regarding the non-solicitation of employees or customers of the parties thereto);

(o) any independent contractors (other than vendors), distributors, dealers, sales agencies or franchisee agreements related to the Business;

(p) any written warranty or guaranty with respect to contractual performance extended by the Business other than in the Ordinary Course;

(q) all agreements relating to the future disposition or acquisition of any Transferred Asset, other than dispositions or acquisitions in the Ordinary Course;

(r) all agreements granting to any Person an option for a first refusal, first-offer or similar preferential right to purchase or acquire any material assets of the Business;

(s) all contracts and agreements with any agent, representative, Independent Sales Organization that is a Top ISO or Top Referral Provider that is not terminable without penalty on 30 days’ or less notice;

(t) all outstanding powers of attorney empowering any Person to act on behalf of Seller or any of the Companies with respect to the Business other than in the Ordinary Course;

(u) standby letters of credit, bank guarantees and surety bonds issued by any bank, financial institution or surety company with respect to obligations of the Business;

(v) all agreements limiting or that would limit the ability of Seller or any of its Affiliates to exploit fully any of the Transferred Intellectual Property in any manner that would be material to the Business as of the date hereof;

(w) all (1) material agreements licensing a third party’s Intellectual Property to the Seller or any of its Affiliates for use in connection with the Business as currently conducted and proposed to be conducted or (2) agreements licensing from the Seller or any of its Affiliates to a third party any item of the Transferred Intellectual Property

(x) all contracts not entered into in the Ordinary Course of the Business under which Seller and its Affiliates collectively were obligated to make payments since January 1, 2009 through December 31, 2009 relating to the Business in excess of $100,000 or for which the Business has an obligation to make payments during the 2010 calendar year in excess of $100,000; and

(y) any amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing except for such amendments, supplements and modifications that are entered into in the Ordinary Course and would not be reasonably expected to have a Material Adverse Effect.

Except as set forth in Schedule 3.12, all Material Business Contracts are in full force and effect and to Seller’s Knowledge, are enforceable against each party thereto in accordance with the express terms thereof, except insofar as enforcement may be limited by bankruptcy, insolvency, or other Laws affecting generally the enforceability of creditors’ rights and by limitations on the availability of equitable remedies. Except as set forth in Schedule 3.12, there does not exist under any Material Business Contract any material violation, breach or event of default, or alleged material violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a material violation, breach or event of default thereunder on the part of any of Seller or its Affiliates or, to the Seller’s Knowledge, any other party thereto, Except as set forth in Schedule 3.12, there are no material disputes pending or, to Seller’s Knowledge, threatened under any Material Business Contract. Except as set forth on Schedule 3.12, as of the date hereof, neither Seller nor SPC have received any written notice from any party to such Material Business Contract that such party intends to terminate, cancel, not to renew or to otherwise modify or amend, or to request an amendment or modification of, in any material respect (including any material increase or change to the pricing terms), such Material Business Contract to which it is a party.

True, correct and complete copies of the Transferred Contracts (or true, correct and complete summaries of any Transferred Contracts that are not in writing) have been made available to Buyer.

Section 3.13. Absence of Changes. Except as set forth in Schedule 3.13, since the date of the Interim Financial Statements, (a) Seller and each of its Affiliates (i) have conducted the Business in the Ordinary Course, and (ii) the Business has not experienced any event or condition, and to Seller’s Knowledge, no event or condition is threatened, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) none of the actions or events prohibited or circumscribed by Section 5.02 have been taken or have occurred, except as permitted by this Agreement, (c) Seller has not transferred, leased or otherwise disposed of any of the assets or properties of the Business or acquired any assets or properties for the Business, other than in each case in the Ordinary Course or as permitted by this Agreement, (d) there has not been any change by any of Seller or its Affiliates in accounting or Tax reporting principles, methods or policies that would have the effect of increasing the Tax liability of the Companies or Buyer for any period ending after the Closing Date or decreasing any Tax attribute existing on the Closing Date, and (e) Seller has not made or rescinded any election relating to Taxes or settled or to Seller’s Knowledge compromised any claim, action, suit, litigation, Legal Proceeding, arbitration, investigation, audit or controversy relating to Taxes that would have the effect of increasing the Tax liability of the Companies or Buyer for any period ending after the Closing Date or decreasing any Tax attribute existing on the Closing Date.

Section 3.14. Assets.

(a) Title to Property. Seller and SPC have good and valid title to the personal tangible property included in their respective Transferred Assets, and at the time of the Contribution and/or the Closing (which, for the avoidance of doubt, includes all of the Transferred Assets), each will transfer to the Companies, as applicable, good and valid title to the personal tangible property included in such Transferred Assets, in each case free and clear of all Encumbrances, except Permitted Encumbrances.

(b) Sufficiency of Assets. Except for the Excluded Assets and the Excluded Services, the Transferred Assets, when taken together with the Seller Licensed Intellectual Property, the Seller Services (including any Intellectual Property and Technology used in connection with the Services Agreements and the provision of such Seller Services) and the Seller Leased Property, constitute all the assets, properties, contracts, Governmental Authorizations, Non-Governmental Authorizations and rights, tangible and intangible (including Intellectual Property, Technology and Software), of Seller and its Affiliates necessary to conduct the Business in all material respects as currently conducted and, immediately after the Closing, necessary for Opco to continue to operate and conduct the Business in all material respect as currently conducted and proposed to be conducted by the Seller and its Affiliates. The Transferred Assets (i) are free of material defects, (ii) are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, and (iii) conform with, and can be operated in accordance with, all applicable Law. To Seller’s Knowledge, there is no defect or problem with any of the Transferred Assets. To Seller’s Knowledge, except as set forth on Schedule 3.14(b), all Terminals deployed by Seller or its Affiliates used in the Business, whether sold, leased or licensed to Merchant Customers, complied at the time of deployment with applicable Law and

applicable the rules and regulations of the Bank Card Associations and the PCI-Security Standards Council. To Seller’s Knowledge, except as set forth on Schedule 3.14(b), all Terminals leased by Seller or its Affiliates used in the Business to Merchant Customers, comply with applicable Law and applicable rules and regulations of the Bank Card Associations and the PCI-Security Standards Council.

Section 3.15. Absence of Liabilities. Except as (i) specifically reflected, reserved against or otherwise disclosed in the Financial Statements, (ii) Liabilities in the Ordinary Course incurred since the date of the Interim Financial Statements, and (iii) set forth on Schedule 3.15 or such Liabilities that are otherwise Excluded Liabilities, (A) there are no Liabilities of the Business or related to the Transferred Assets and (B) the Liabilities set forth on Schedule 3.15 are not individually or in the aggregate material to the Business.

Section 3.16. Finders’ Fees. Except for Sandler O’Neill & Partners, L.P. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, whose fees will be paid by Seller, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of any of Seller or its Affiliates who might be entitled to any fee or commission from any of Seller or its Affiliates in connection with the Transactions.

Section 3.17. Taxes.

(a) There is no lien for Taxes upon any of the Transferred Assets, SPC or upon any of the equity interests in the Companies to be issued nor, to the Seller’s Knowledge, is any taxing authority in the process of imposing any lien for Taxes on any of the Transferred Assets, SPC or upon any of the equity interests in the Companies to be issued, other than liens for Taxes that (i) are not yet due and payable or (ii) for Taxes the validity or amount of which is being contested by any of Seller or its Affiliates in good faith by appropriate action and which have been sufficiently reflected or reserved against on the face of the balance sheets contained in the Financial Statements and are set forth in Schedule 3.17(a).

(b) Since the date of the most recent balance sheet contained in the Interim Financial Statements, Seller and SPC have not incurred any material Taxes with respect to the Business, other than Taxes incurred in the Ordinary Course consistent in type and amount with the past practices of Seller or SPC, as applicable.

(c) All material Tax Returns with respect to, in connection with, associated with or related to the Business required to be filed by or on behalf of Seller or SPC have been timely filed and, when filed, were true, correct and complete in all material respects. All material Taxes owed and/or due and payable by Seller or SPC (whether or not shown on any Tax Return) with respect to the Business have been or will be timely paid by Seller or SPC, as the case may be, other than Taxes that (i) the validity or amount of which is being contested by Seller or one of its Affiliates in good faith by appropriate action, (ii) have been sufficiently reflected or reserved against on the face of the balance sheets contained in the Financial Statements and (iii) are set forth on Schedule 3.17(a). Seller and SPC have withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder

or other third party, and all information returns related to such amounts have been properly completed and timely filed.

(d) At all times from the date of this Agreement until the purchase by Buyer of the Class A Units, Seller and New SPC shall operate Holdco and Opco in such a manner that, for U.S. federal income tax purposes, Holdco will continue to be treated as a partnership and Opco will continue to be treated as a disregarded entity under Treasury Regulations Section 301.7701-3.

(e) Any deficiencies asserted or assessments made as a result of any examinations by any Government Entity of the Tax Returns relating to the Transferred Assets, the Business or SPC have been fully paid, and there are no other audits or investigations by any Government Entity in progress, nor has any of Seller or its Affiliates received any written notice from any Government Entity that it intends to conduct such an audit or investigation relating to the Transferred Assets or the Business.

(f) Since January 1, 2006, no written claim has been made by a Government Entity in a jurisdiction in which any of Seller or its Affiliates does not currently file a Tax Return such that any of Seller or its Affiliates is or may be subject to taxation by that jurisdiction in respect of the Transferred Assets or the Business.

(g) Except as set forth on Schedule 3.17(g), no agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including, but not limited to, any applicable statute of limitation) or the period for filing any Tax Return, in each case with respect to SPC has been executed or filed with any Government Entity by or on behalf of Seller or the Companies. Neither Seller nor SPC have requested any extension of time within which to file any Tax Return with respect to SPC, the Business or the Transferred Assets, which Tax Return has since not been filed.

(h) Seller is not a “foreign person” within the meaning of Section 1445 of the Code.

(i) None of the Transferred Assets are an interest in an entity taxable as a corporation, partnership, trust or real estate mortgage investment conduit for federal income tax purposes.

(j) No power of attorney with respect to any Tax matter is currently in force with respect to the Transferred Assets, the Business or SPC that would, in any manner, bind, obligate or restrict the Companies.

(k) Neither Seller nor any of its Affiliates has executed or entered into any agreement with, or obtained any consents or clearances from, any Government Entity, or has been subject to any ruling guidance specific to any Seller or its Affiliates with respect to Taxes or any Tax Return, that would be binding on the Companies for any taxable period (or portion thereof) ending after the Closing Date.

(l) Except as set forth on Schedule 3.17(l), SPC (i) is not a party to and is not bound by any Tax sharing, indemnification or allocation agreement or arrangement, (ii) has not been a member of an affiliated group filing a consolidated, combined or unitary Tax Return and (iii) has no liability for the Taxes of any other person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract or otherwise.

Section 3.18. Environmental Matters.

(a) With respect to the Business, to the Seller’s Knowledge, Seller and SPC are in material compliance with all Laws relating to environmental contamination, pollution or the protection of the environment, natural resources or human health and safety as it relates to exposure to any harmful substance (“Environmental Laws”).

(b) With respect to the Business, to the Seller’s Knowledge, neither Seller nor SPC has received any written notice of any claim, demand, action, suit, Legal Proceeding or other communication by any person alleging any violation of, or any actual or potential Liability under any Environmental Law (“Environmental Claim”), and to the Seller’s Knowledge, there is no Environmental Claim currently threatened with respect to the Business or the Transferred Assets.

(c) Notwithstanding any other representation or warranty in Article III, the representations and warranties in this Section 3.18 constitute the sole representations and warranties of Seller with respect to any Environmental Law or Environmental Claim.

Section 3.19. Top Merchant Customers.

(a) Schedule 3.19(a) lists (i) each Merchant Customer that individually or with its Affiliates was one of the top twenty (20) largest Merchant Customers of the Business based on net revenue of the Business for the nine-month period ending September 30, 2009 (the “Top Merchant Customers”); (ii) the total dollar amount of net revenue attributable to each such Top Merchant Customer for the calendar year 2008 and the nine-month period ending September 30, 2009, (iii) the applicable volume (Bank Card Association dollar and transaction volume) for each such Top Merchant Customer for the calendar year 2008 and the nine-month period ending September 30, 2009; and (iv) the aggregate volume (Bank Card Association dollar volume) for the remaining Merchant Customers for the calendar year 2008 and the nine-month period ending September 30, 2009.

(b) Except as set forth on Schedule 3.19(b), Seller has not received any oral or written notice from any Top Merchant Customer that such Top Merchant Customer intends to terminate, cancel, not to renew, or to otherwise modify or amend, or to request a modification or amendment of, in any material respect (including any material reduction or change to pricing terms) any such Transferred Contract to which it is a party. Seller has delivered a true, accurate and complete copy of each Merchant Contract with a Top Merchant Customer to Buyer.

(c) Seller has delivered to Buyer a true, accurate and complete copy of the current version of the standard form Merchant Contract presently used by Seller and a true,

accurate and complete copy of each other materially different version of the standard form Merchant Contract used by Seller or the Business during the last five (5) years. All Merchant Contracts were created by Seller and/or SPC in accordance with its then current customary credit review and acceptance criteria for the Business, which in all cases were in material compliance with any applicable rules and regulations of the Card Associations. Except as set forth on Schedule 3.19(c), all Merchant Customers are in material compliance with the current credit review and acceptance criteria the Business.

(d) Except as set forth in Schedule 3.19(d), which contains the estimated aggregate annual loss for calendar year 2009 with respect to the Merchant Contracts, all Merchant Contracts provide for a Top Merchant Customer service charge for credit card transactions and/or debit card transactions which meets or exceeds Interchange Fees charged by the applicable Card Association.

(e) Except as set forth in Schedule 3.19(e), Seller has valid and binding Merchant Contracts in full force and effect with each Merchant Customer.

(f) Except as set forth in Schedule 3.19(f), none of the Merchant Customers have prepaid their Merchant Contracts.

Section 3.20. Top Prepaid Customers.

(a) Schedule 3.20(a) lists (i) each Prepaid Customer that individually or with its Affiliates was one of the top twenty (20) largest Prepaid Customers of the Business based on value load of the Business for the nine-month period ending September 30, 2009 (the “Top Prepaid Customers”) and (ii) the total dollar amount of value load to each such Top Prepaid Customer for the calendar year 2008 and the nine-month period ending September 30, 2009.

(b) Except as set forth on Schedule 3.20(b), Seller has not received any oral or written notice from any Top Prepaid Customer that such Top Prepaid Customer intends to terminate, cancel, not to renew, or to otherwise modify or amend, or to request a modification or amendment of, in any material respect (including any material reduction or change to pricing terms) any such Transferred Contract to which it is a party. Seller has delivered a true, accurate and complete copy of each Prepaid Contract with a Top Prepaid Customer to Buyer.

(c) Seller has delivered to Buyer a true, accurate and complete copy of the current version of the standard form Prepaid Contract presently used by Seller or the Business and a true, accurate and complete copy of each other materially different version of the standard form Prepaid Contract used by Seller and/or SPC during the last two (2) years. All Prepaid Contracts were created by Seller in accordance with its then current customary credit review and acceptance criteria for the Business, which in all cases were in material compliance with any applicable rules and regulations of the Card Associations. Except as set forth on Schedule 3.20(c), all Prepaid Customers are in material compliance with the current credit review and acceptance criteria of the Business.

Section 3.21. Top Referral Providers.

(a) Schedule 3.21(a) lists (i) each Third Party Referral Provider that individually or with its Affiliates was one of the top twenty (20) largest Third Party Referral Providers of the Business based on net revenue of the Business for the nine-month period ending September 30, 2009 (the “Top Referral Providers”) and (ii) the total dollar amount of net revenue attributable to each such Top Referral Provider for the calendar year 2008 and the nine-month period ending September 30, 2009.

(b) Except as set forth on Schedule 3.21(b), Seller has not received any oral or written notice from any Top Referral Provider that such Top Referral Provider intends to terminate, cancel, not to renew, or to otherwise modify or amend, or to request a modification or amendment of, in any material respect (including any material reduction or change to pricing terms) any such Transferred Contract to which it is a party. Seller has delivered a true and complete copy of each Third Party Referral Contract with a Top Referral Provider to Buyer.

(c) Seller has delivered to Buyer a true, accurate and complete copy of the current version of the standard forms Third Party Referral Contract presently used by Seller or the Business and a true, accurate and complete copy of each other materially different version of the standard form Third Party Referral Contract used by Seller and/or SPC during the last five (5) years. All Third Party Referral Contracts were created by Seller in accordance with its then current customary credit review and acceptance criteria for the Business, which in all cases were in material compliance with any applicable rules and regulations of the Card Associations. Except as set forth on Schedule 3.21(c), all Third Party Referral Providers are in material compliance with the current credit review and acceptance criteria of the Business.

Section 3.22. Top Independent Sales Organizations and Agent Banks.

(a) Schedule 3.22(a) lists (i) each Independent Sales Organization and/or Agent Bank that individually or with its Affiliates was one of the top twenty largest Independent Sales Organizations and/or Agent Banks based on net revenue for the nine-month period ending September 30, 2009 (the “Top ISOs”) and (ii) the total dollar amount of net revenue attributable to each such Top ISO for the calendar year 2008 and the nine-month period ending September 30, 2009.

(b) Except as set forth on Schedule 3.22(b), (i) Seller has not received any oral or written notice from any Top ISO that such Top ISO intends to terminate, cancel, not to renew, or to otherwise modify or amend, or to request a modification or amendment of, in any material respect (including any material reduction or change to pricing terms) any such Transferred Contract to which it is a party and (ii) all Independent Sales Organizations and Agent Banks are subject to valid and binding Independent Sales Organization Contracts or Agent Bank Contracts, as applicable. Seller has delivered a true and complete copy of each Independent Sales Organization Contract or Agent Bank Contract, as applicable, with a Top ISO to Buyer.

(c) Seller has delivered to Buyer a true, accurate and complete copy of the current version of the standard form Independent Sales Organization Contract and Agent

Bank Contract presently used by Seller or the Business and a true, accurate and complete copy of each other materially different version of the standard form Independent Sales Organization Contract or Agent Bank Contract used by Seller and/or SPC during the last five (5) years. All Independent Sales Organization Contracts and Agent Bank Contracts were created by Seller in accordance with its then current customary credit review and acceptance criteria for the Business, which in all cases were in material compliance with any applicable rules and regulations of the Card Associations. Except as set forth on Schedule 3.22(c), all Independent Sales Organizations and Agent Banks are in material compliance with the current credit review and acceptance criteria of the Business.

Section 3.23. Related Party Transactions. Except as set forth on Schedule 3.23, there are no Transferred Contracts or other arrangements related to the Business to which any of Sellers or its Affiliates or any of their respective directors or officers (“Related Persons”) is a counterparty.

Section 3.24. Regulatory Matters; Security Breaches; Outages.

(a) There has been no failure by the Business to comply with the applicable bylaws, operating rules and identification standards manual of, and any other rules, regulations, manuals, policies and procedures promulgated by, Visa, Inc. and its subsidiaries and Affiliates, MasterCard Incorporated and its subsidiaries and Affiliates or any other applicable bankcard associations or networks, gateway services or other networks or the payment card industry (including Payment Card Industry Data Security Standards, Visa’s Cardholder Information Security program, MasterCard’s Site Data Protection program and Discover Network’s Debit and Prepaid Operating Regulations), in each case as may be in effect from time to time (collectively, “Network Rules”) that would materially and adversely affect Opco’s participation in the applicable network. Since January 1, 2009, Seller and its Affiliates have properly responded in all respects to all written notice alleging any failure to comply with the rules and regulations of the Bank Card Associations.

(b) The Business has implemented, and is in material compliance with, commercially reasonable technical measures to assure the integrity and security of transactions executed through its computer systems and of all confidential or proprietary data. Except as set forth in Schedule 3.24(b), (i) since January 1, 2007, to the Seller’s Knowledge, there has been no actual material breach of security or unauthorized access to or acquisition, use, loss, destruction, compromise or disclosure of any personal information, confidential or proprietary data or any other such information maintained or stored by the Business in systems directly under its control involving (a) data of any customers or other similarly situated individuals impacting more than 25 such individuals in connection with any such particular breach and (b) with Losses that have exceeded, or would be reasonably expected to exceed, $1,500,000 (a “Material Security Breach”) and (ii) neither Seller nor any of its Affiliates has received written notice alleging the occurrence of a Material Security Breach.

(c) Except as set forth in Schedule 3.24(c), since January 1, 2007, to the Seller’s Knowledge, there have been no facts or circumstances that would require the Business to give notice to any customers or other similarly situated individuals of any actual or

perceived data security breaches pursuant to an applicable Law requiring notice of such a breach.

(d) Schedule 3.24(d) sets forth a complete and accurate list of all current privacy and data security policies that are used by the Business with regard to the collection and use of personally identifiable information and the dates that each such policy was in place, together with a list of all Network Rules applicable to the Business. Seller and SPC are in material compliance with all such policies and all Laws relating to data, the collection and use of data, personally identifiable information and bulk commercial faxes and e-mail (e.g., spam) related to the Business. Seller has provided to Buyer true, correct and complete copies of each such policy.

Section 3.25. Insurance. Seller has insurance policies in full force and effect (a) for such amounts as are sufficient for all requirements of Law and all Transferred Contracts and (b) which are in such amounts, with such deductibles and against such risks and losses, as are reasonable for the Business and the Transferred Assets, and Schedule 3.25 sets forth with respect to the Business a loss run for claims in excess of $250,000 made with respect to the Business and/or the Transferred Assets under such policies within the last three years. Excluding insurance policies that have expired and been replaced in the Ordinary Course, no insurance policy with respect to the Business has been cancelled within the last two years, and to the Seller’s Knowledge, no threat has been made to cancel any insurance policy of Seller during such period. No event has occurred including the failure by Seller to give any notice or information, or Seller giving any inaccurate or erroneous notice or information, which limits or impairs the rights of Seller under any such insurance provisions.

Section 3.26. Solvency. Immediately after giving effect to the Closing and the Transactions, Seller and its Subsidiaries (a) will be able to pay their respective debts as they become due and (b) shall have adequate capital to carry on their respective businesses. No transfer of property is being made, and no obligation is being incurred, in connection with the Transactions with the intent to hinder, delay or defraud either present or future creditors of Seller or any of its Subsidiaries. Seller acknowledges that it is selling the Transferred Assets to the Companies in exchange for reasonably “equivalent value,” as such term or similar terms are used in any potentially applicable fraudulent conveyance Laws.

Section 3.27. Sponsorship Agreements. The terms and conditions of the Acquiring Sponsorship Agreement and Prepaid Card Sponsorship Agreement (the “Sponsorship Agreements”), the arrangement between Opco and Seller contemplated thereby, Opco’s membership, sponsorship into, or participation in, the Card Associations contemplated thereby and the clearing, settlement and sponsorship services to be performed by Seller and its Affiliates to Opco as contemplated thereby are permitted under all Network Rules of the Card Associations, and, to Seller’s Knowledge, none of the Card Associations has disclosed any intent to, or has prohibited or otherwise limited or imposed additional restrictions applicable to such arrangement. The Card Associations into which Opco will be sponsored, or in which Opco will participate pursuant to the Sponsorship Agreements represent all of the payment card networks of which the Business is a member, into which the Business is sponsored, or in which the Business participates, as of the date hereof and as of immediately before the Closing.

Section 3.28. Representations under the Ancillary Agreements. At the Closing each of the representations and warranties made by the Companies under any of the Ancillary Agreements shall be true and correct in all respects, and immediately following the Closing the Companies will not be in breach of any of their covenants or obligations under any of the Ancillary Agreements.

Section 3.29. Chargebacks and Credit Losses. The unreimbursed Chargebacks and Credit Losses relating to Merchant Customers of the Business (including any unreimbursed Chargebacks and Credit Losses that are being subsidized or paid for by any division or Affiliate of the Seller outside of the Business) have been appropriately estimated and accounted for and reflected in the Historical Financial Statements.

Section 3.30. Credit and Customer Files. Seller has provided true, accurate and complete credit memorandums to the Buyer with respect to each Top Merchant and each Top ISO and each Merchant Customer with delayed delivery exposure of $200,000 or more and each Person set forth on Schedule 3.30 at subparts (i), (ii) and (iii). Schedule 3.30 sets forth by name the following: (i) each Merchant Customer identified by the chargeback monitoring programs of the Bank Card Associations during the nine-month period ending September 30, 2009; (ii) Merchant Customers with delayed delivery exposure of $200,000 or more; (iii) Merchant Customers with escrow/reserve amounts in excess of $50,000; (iv) Merchant Customers in a bankruptcy-related Legal Proceeding with a Loss greater than $5,000; (v) non-PCI-compliant level 1, 2 and 3 Merchant Customers; (vi) Merchant Customers that experienced account data compromise in 2009 and/or 2010; and (vii) Merchant Customers in litigation with Seller.

Section 3.31. No Other Representations or Warranties.

(a) Except for the representations and warranties contained in this Agreement, the Ancillary Agreements and the certificate delivered pursuant to Section 6.02(e), neither Seller nor any other Person makes any other express or implied representation or warranty on behalf of Seller.

(b) In particular, without limiting the foregoing disclaimer, except as stated in this Agreement, no Person makes or has made any representation or warranty to Buyer with respect to (i) any financial projection or forecast relating to Seller, SPC, the Companies or the Business or (ii) any oral or written information presented to Buyer during any management presentation, including any question and answer session thereto or any oral or written information provided to Buyer in the course of its due diligence investigation of the Seller, SPC, the Companies and the Business, the negotiation of this Agreement or in the course of the Transactions contemplated hereby. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (A) there are uncertainties inherent in attempting to make such projection and forecasts, (B) it is familiar with such uncertainties, (C) it is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such projections and forecasts so furnished to it and (D) it shall have no claim against any Person with respect thereto other than a claim for fraud, bad faith or intentional misrepresentation.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as follows:

Section 4.01. Organization and Qualification. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Georgia. Buyer has all requisite power and authority to own and operate its respective properties and assets and to carry on its respective business as currently conducted. Buyer is duly qualified to do business and is in good standing in each jurisdiction where the ownership or operation of its respective properties and assets or the conduct of its respective business requires such qualification, except for failures to be so qualified or in good standing that would not, individually or in the aggregate, impair or delay Buyer’s ability to perform its obligations hereunder.

Section 4.02. Authorization. Buyer has full power and authority to execute and deliver this Agreement and will have full power and authority at Closing to execute and deliver each of the Ancillary Agreements and other Closing documents referenced herein to which it is a party and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Buyer of this Agreement have been duly and validly authorized and each of the Ancillary Agreements and other Closing documents referenced herein to which it is a party will have been duly and validly authorized at Closing, and no additional corporate or shareholder authorization or consent is required in connection with the execution, delivery and performance by Buyer of this Agreement or will be required in connection with the execution, delivery and performance by Buyer of any of the Ancillary Agreements and other Closing documents referenced herein to which it is a party.

Section 4.03. Consents and Approvals. Except as set forth on Schedule 4.3, no consent, approval, waiver, authorization, notice or filing is required to be obtained by Buyer from, or to be given by Buyer to, or made by Buyer with, any Government Entity or Self-Regulatory Organization or other Person in connection with the execution, delivery and performance by Buyer of this Agreement and the Ancillary Agreements or the other Closing documents referenced herein to which it is a party, other than those the failure of which to obtain, give or make would not, individually or in the aggregate, materially impair or delay the ability of Buyer to effect the Closing or to perform its obligations under this Agreement and the Ancillary Agreements and the other Closing documents referenced herein to which it is a party.

Section 4.04. Noncontravention. The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements and the other Closing documents referenced herein to which it is a party, and the consummation of the Transactions, do not, in the case of this Agreement, and will not as of the Closing, in the case of this Agreement, the Ancillary Agreements and other Closing documents referenced herein, (a) violate any provision of the Articles of Incorporation, Bylaws or other organizational documents of Buyer and (b) assuming the receipt of all consents, approvals, waivers and authorizations and the making of notices and filings set forth on Schedule 4.3 or required to be made or obtained by Seller, to the actual knowledge of Buyer, violate or result in a breach of or constitute a default under any Law to which Buyer is subject, other than,

in the case of clause (b), breaches, defaults or violations that would not, individually or in the aggregate, materially impair or delay Buyer’s ability to perform its obligations hereunder.

Section 4.05. Binding Effect. This Agreement, when executed and delivered by Seller, constitutes, and each of the Ancillary Agreements and other Closing documents referenced herein to which Buyer is a party, when executed and delivered by Buyer, Seller and the other parties thereto, will constitute, a valid and legally binding obligation of Buyer, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and other similar laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts in granting equitable remedies.

Section 4.06. Finders’ Fees. Except for fees payable to Credit Suisse Securities (USA) LLC , which will be paid by Buyer, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Buyer or any Affiliate of Buyer who might be entitled to any fee or commission from Buyer in connection with the Transactions.

Section 4.07. Litigation and Claims. Except as set forth on Schedule 4.7, there is no Legal Proceeding pending or, to the actual knowledge of Buyer (after due inquiry of the employees primarily responsible for the subject matter in question), threatened against Buyer or any of its Affiliates that, individually or in the aggregate, would materially impair or delay the ability of Buyer to effect the Closing or affect the Business. Buyer is not subject to any Order that, individually or in the aggregate, would materially impair or delay the ability of Buyer to effect the Closing or materially affect the Business.

Section 4.08. No Other Representations or Warranties. Except for the representations and warranties contained in this Agreement, the Ancillary Agreements and the certificate delivered pursuant to Section 6.03(d), neither Buyer nor any other Person makes any other express or implied representation or warranty on behalf of Buyer.

Section 4.09. Ability to Make Payment. On the date hereof, Buyer has and, as of the Closing Date, Buyer will have, sufficient funds with which to pay the Cash Purchase Price.

Section 4.10. Investment. Buyer has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its purchase of the membership interests in Holdco and the Business. Buyer confirms that Seller has provided Buyer the opportunity to ask questions of the officers and management employees of Seller, SPC and the Business, and to acquire additional information about the business and financial condition of Seller, SPC and the Business. Buyer is acquiring the membership interests in Holdco for investment and not with a view toward or for sale in connection with any distribution thereof, or with any present intention of distributing or selling such membership interests. Buyer is an institutional accredited investor within the meaning of Rule 501(a)(3) promulgated under the Securities Act of 1933, as amended.

Section 4.11. Inspections. Buyer (directly or through its Affiliates and advisors) is an informed and sophisticated purchaser, and has engaged expert advisors, experienced in the evaluation and purchase of companies such as Holdco and the Business as contemplated hereunder.

Buyer (directly or through its Affiliates) has undertaken such investigation as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement and the consummation of the Transactions.

ARTICLE V

COVENANTS

Section 5.01. Access and Information.

(a) From the date hereof until the Closing, subject to any applicable Laws, Seller shall (i) afford Buyer and its representatives access, during regular business hours and upon reasonable advance notice, to the Applicable Employees and the assets, books and records of the Business (including payroll information and employee data), (ii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the Business as Buyer from time to time reasonably requests in writing and (iii) instruct the Applicable Employees, and their counsel and financial advisors to cooperate with Buyer in its investigation of the Business, including instructing its accountants to give Buyer access to their work papers; provided, however, that in no event shall Buyer have access to any information that (A) based on advice of Seller’s counsel, could create any potential Liability under applicable Laws, including U.S. Antitrust Laws, or could destroy any legal privilege or (B) in the reasonable judgment of Seller, could (1) result in the disclosure of any trade secrets of third parties or (2) violate any obligation of Seller with respect to confidentiality so long as, with respect to confidentiality, Seller has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. All requests for information made pursuant to this Section 5.01(a) shall be directed to an executive officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.01(a) shall be governed by the terms of Section 5.11.

(b) Following the Closing, upon the request of another Party, each of Seller, Buyer and the Companies shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing, grant to a requesting Party and its representatives, during regular business hours, the right, at the expense of such requesting Party, to inspect and copy the books, records and other documents in the granting Party’s possession pertaining to the operation of the Business prior to the Closing (including books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records) with respect to Seller, for purposes of preparing the requesting Party’s Tax Returns and with respect to the Companies, for any purpose reasonably related to the Transaction; provided, however, that the requesting Party agrees such access will give due regard to minimizing interference with the operations, activities and Employees of the granting Party. In no event shall Seller or Buyer have access to the consolidated federal, state or local Tax Returns of the other Parties.

Section 5.02. Conduct of Business.

(a) During the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as Buyer otherwise agrees in advance, Seller shall conduct, and shall cause SPC and its other Affiliates to conduct, the Business in the Ordinary Course and use their commercially reasonable efforts, as applicable, to preserve intact the Business, the Transferred Assets and their relationships with the counterparties to the Transferred Contracts and the Applicable Employees. Without limiting the foregoing, during the period from the date hereof to the Closing, except as otherwise contemplated by this Agreement or the Ancillary Agreements or as required by Law or as Buyer otherwise agrees in advance, Seller and its Affiliates shall:

(i) maintain insurance upon the Transferred Assets in such amounts and of such kinds comparable to that in effect on the date hereof;

(ii) continue to collect accounts receivable and pay accounts payable utilizing normal procedures and without discounting or accelerating payment of such accounts;

(iii) pay all maintenance and similar fees and take all other appropriate actions as necessary to prevent the abandonment, loss or impairment of any Transferred Intellectual Property owned by Seller or its Affiliates and subject to a pending application or registration;

(iv) perform in all material respects all of its obligations under each Transferred Contract and Material Business Contract;

(v) conduct the Business in accordance with the Network Rules in all material respects, including the payment of fees, costs, assessments and other expenses when due; and

(vi) make capital expenditures in accordance with Seller’s 2010 calendar year budget and forecast for capital expenditures.

(b) Without limiting the generality of the foregoing, during the period from the date hereof to the Closing and except as otherwise expressly provided by this Agreement or as required by Law or with the prior written consent of Buyer (such consent not to be unreasonably withheld), Seller shall not, and shall not permit its Affiliates to, with respect to the Companies, the Business, the Transferred Assets or the Assumed Liabilities:

(i) incur, create or assume any Encumbrance on any Transferred Asset other than a Permitted Encumbrance;

(ii) acquire any material properties or assets that would be Transferred Assets or sell, assign, license, transfer, convey, lease or otherwise dispose of any assets that would be Transferred Assets;

(iii) except in connection with the Contribution, transfer, issue, sell, pledge, encumber or dispose of any shares of membership interests or other securities of, or other ownership interests in, the Companies or SPC;

(iv) terminate or materially extend or materially modify any Transferred Contract, except in the Ordinary Course and except for such amendments as may be reasonably necessary or advisable in order to obtain any required consent to assignment;

(v) default or suffer to exist any event or condition which with the lapse of notice or lapse of time or both would constitute a material default under any Transferred Contract;

(vi) settle any claims, actions, arbitrations, disputes or other Legal Proceedings (A) that would result in Seller or any of its Affiliates being enjoined in any respect material to the Transactions or the Business or (B) for an amount, in the aggregate, exceeding $250,000;

(vii) change any accounting method or practice of Seller that has a material impact on the Business, except in the Ordinary Course or except as required by Law or any Government Entity or Self-Regulatory Organization;

(viii) amend the organizational documents of any of the Companies, except as provided in this Agreement, the Holdco LLC Agreement and the related applicable agreements or cause any of the Companies to enter into or agree to enter into any merger or consolidation with any corporation or other entity;

(ix) except for transfers of cash pursuant to normal cash management practices and advances for business expenses in the Ordinary Course, make any investments in or loans to, or pay any fees or expenses to, or enter into or modify any agreement with any Related Persons;

(x) enter into any contract, understanding or commitment that restrains, restricts, limits or impedes the ability of any of the Companies or the Business to compete with or conduct any business or line of business in any material way in any geographic area or solicit the employment of any persons (other than contracts entered into in the Ordinary Course with covenants regarding the non-solicitation of employees or customers of the parties thereto);

(xi) except as required by Law (A) hire any senior executive officers of the Business, (B) increase the salary or other compensation of any director or employee of the Business except for normal increases in the Ordinary Course, (C) except in the Ordinary Course, grant any bonus, benefit or other direct or indirect compensation to any employee, independent contractor, officer, agent or representative or director of the Business, (D) increase the coverage or benefits available under any (or create any new) severance pay, termination pay, change in control, equity compensation, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for or with any of the directors, officers, employees, independent contractors, agents or representatives of the Business or otherwise modify or amend or terminate any such

plan or arrangement except for increases in the Ordinary Course; (E) hire any rank and file employees (except senior executive officers covered under Section 5.02(b)(xi)) other than in the Ordinary Course, and in any event, not in excess of 15% of the aggregate number of employees currently on the payroll of the Business as of the date hereof or (F) enter into any employment, deferred compensation, severance, special pay, consulting, noncompetition or similar agreement or arrangement with any employees, independent contractors, directors or officers of the Business (or amend any such agreement);

(xii) except in the Ordinary Course (A) issue, create, incur, assume, guarantee, endorse or otherwise become liable or responsible with respect to (whether directly, contingently or otherwise) any indebtedness or enter into any guarantees, interest rate swaps, collars or agreements or any other contract or agreement relating to derivatives; (B) pay, repay, discharge, purchase, repurchase or satisfy any indebtedness; or (C) modify the terms of any indebtedness;

(xiii) except as otherwise required by applicable Law, make, change or revoke any material Tax election, settle or compromise any material Tax claim or liability, change (or make a request to any Government Entity to change) any method of accounting or accounting period for Tax purposes, surrender any material claim for a refund of Taxes, enter into any closing agreement relating to any Tax, consent to any waiver or extension of any period for the assessment or collection of any Tax, file any material amended Tax Return or take any similar action relating to the filing of any Tax Return or the payment of any Tax if such other action would have the effect of increasing the Tax liability of the Companies or Buyer for any period ending after the Closing Date or decreasing any Tax attribute existing on the Closing Date;

(xiv) terminate, amend or waive any material rights under any Transferred Intellectual Property or Seller Licensed Intellectual Property, other than in the Ordinary Course;

(xv) intentionally do any other act which would cause any representation or warranty of Seller in this Agreement to be or become untrue or intentionally omit to take any action necessary to prevent any such representation or warranty from being untrue at such time;

(xvi) authorize or enter into any agreement or commitment prohibited by this Section 5.02 or that would be reasonably expected to have a Material Adverse Effect; or

(xvii) authorize or enter into any agreement or commitment relating to services that Buyer and/or its Affiliates provide with respect to the Business;

(xviii) authorize or enter into any agreement with a Merchant Customer or an Independent Sales Organization that is required (pursuant to the Underwriting Guidelines in place at the time) to be approved by the FNMS “MARC” Committee

without the approval of Buyer, such response to be given within two (2) Business Days of submission; or

(xix) enter into any agreement with a vendor for the provision of services to the Business pursuant to which the Business either (a) will have an obligation to make payments during the 2010 calendar year in excess of $100,000 or (b) will pre-pay for such services.

Section 5.03. Reasonable Best Efforts; HSR.

(a) Each of Seller and Buyer shall cooperate and use their respective reasonable best efforts to fulfill or cause to be fulfilled as promptly as practicable the conditions precedent to the other’s obligations hereunder, including securing all consents, approvals, waivers and authorizations required in connection with the Transactions. Without limiting the generality of the foregoing, Buyer and Seller shall make all appropriate filings and submissions required by the U.S. Antitrust Laws and any other Laws and promptly file any additional information requested as soon as practicable after receipt of such request therefor.

(b) Seller and Buyer shall cooperate with each of the other parties hereto and shall furnish to the other parties hereto all information necessary for such other party to make any filing under the HSR Act and for any application or other filing to be made pursuant to any Antitrust Law and in connection with resolving any investigation or other inquiry by any Government Entity under any U.S. Antitrust Laws with respect to the Transactions. Except as otherwise required or restricted by Law, Seller and Buyer shall promptly inform the other parties hereto of any communication with, and any proposed understanding, undertaking or agreement with, any Government Entity regarding any HSR Act or U.S. Antitrust Law related filings or any such Transactions. Except as otherwise required or restricted by Law, none of the Parties hereto shall participate in any meeting with any Government Entity in respect of any such filings, investigation or other inquiry without giving the other Parties hereto prior notice of the meeting. Except as otherwise required or restricted by Law, the Parties shall consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted to any Government Entity or court by or on behalf of any Party in connection with all meetings, actions and Legal Proceedings under or relating to the HSR Act or other U.S. Antitrust Laws. The cooperation among the Parties shall include, with respect to making such a submission, providing copies of all such documents (not including attachments or other information contained in such documents that the submitting Party believes contain competitive or Confidential Information that would not otherwise be disclosed to the other Parties) to the other Parties and their advisors prior to making such a submission (subject to applicable Law and provided that the Parties hereto shall not be required to provide to each other any documents or other materials related to a Party’s valuation of the Transactions) and, if requested, giving due consideration to all reasonable additions, deletions or changes suggested in connection therewith.

Section 5.04. Tax Matters.

(a) Seller’s Liability for Taxes. Seller shall be liable for (i) any Taxes, including any Transfer Taxes, imposed with respect to the Transferred Assets or the Business, or any income or gain attributable to or derived with respect thereto, for the taxable periods, or portions thereof, ended on or before the Closing Date, (ii) Losses directly or indirectly relating to or arising out of any liability for Taxes, including Transfer Taxes, imposed with respect to the Transferred Assets or the Business, or any income or gain attributable to or derived with respect thereto, for the taxable periods, or portions thereof, ended on or before the Closing Date and (iii) any Liability, the Companies for unpaid Taxes of Seller, New SPC, SPC or any other Person under Treas. Reg. 1.1502-6 (or similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise, which Liability relates to membership in a consolidated, combined or unitary Tax group prior to the Closing or to an event or transaction occurring or contract entered into before the Closing.

(b) Holdco Liability for Taxes. Holdco shall be liable for (i) any Taxes imposed with respect to the Transferred Assets or the Business, or any income or gains attributable to or derived with respect thereto, for any taxable period, or portion thereof, beginning after the Closing Date (but excluding any income Taxes imposed on any member of Holdco with respect to its distributive share of the income of Holdco including any Section 704(c) adjustments attributable to the built in gains in the Transferred Assets as of the Closing) and (ii) Losses directly or indirectly relating to or arising out of any liability for Taxes imposed with respect to the Transferred Assets or the Business, or any income or gains attributable to or derived with respect thereto, for any taxable period, or portion thereof, beginning after the Closing Date (but excluding any income Taxes imposed on any member of Holdco with respect to its distributive share of the income of Holdco including any Section 704(c) adjustments attributable to the built in gains in the Transferred Assets as of the Closing).

(c) Proration of Property Taxes. Property and similar ad valorem taxes and related exemptions, allowances or deductions that are calculated on an annual basis shall be prorated on a time basis as of the Closing Date between Seller and New SPC, on the one hand, and Holdco on the other.

(d) Transfer Taxes. All federal, state, local or foreign or other excise, sales, use, value added, transfer (including real property transfer or gains), stamp, documentary, filing, recordation and other similar taxes and fees that may be imposed or assessed as a result of transfers of Transferred Assets together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties (“Transfer Taxes”), shall be borne by Seller. Buyer and the Companies shall cooperate to qualify for each occasional sale or other exemption that is available under the Laws of each applicable jurisdiction. Any similar taxes imposed on the sale of the Class A Units to Buyer shall be borne by Holdco.

(e) The Companies Claiming, Receiving or Using of Refunds and Overpayments. If, after the Closing, any of the Companies or their respective Affiliates (i) receive any refund or (ii) utilize the benefit of any overpayment or prepayment of Taxes, which, in either case, (A) relates to a Tax paid by Seller or any of its Affiliates that is not the subject of indemnification by the Companies hereunder, or (B) relates to a Tax that is the subject of indemnification by Seller hereunder, but in each case other than a refund (or other benefits of any overpayment) that is attributable to a carryback of losses or other Tax

attributes from any taxable period, or portion thereof, beginning after the Closing Date, the Buyer agrees to cause the Companies to, as promptly as reasonably practicable, transfer, or cause to be transferred, to Seller the entire amount of the refund or overpayment received or utilized by the Companies or their Affiliates (net of any reasonable costs incurred by the Companies in connection therewith). The Buyer agrees to notify, or to cause the Companies to notify, Seller as promptly as reasonably practicable of both the discovery of a right to claim any such refund or overpayment and the receipt of any such refund or utilization of any such overpayment. The Buyer agrees to furnish or to cause the Companies to furnish, as promptly as reasonably practicable, to Seller all information, records and assistance reasonably necessary to verify the amount of the refund or overpayment in a commercially reasonable manner.

(f) Treatment of Purchase of Transferred Interests for Tax Purposes; Section 754 Election. For federal tax purposes, the parties hereto agree to treat the purchase by Buyer of the Class A Units from Seller as contemplated herein as the purchase of a partnership interest in an existing partnership for U.S. federal income tax purposes. The Parties further agree to file all Tax Returns consistent with such principles. The Parties further acknowledge and agree that, as a result of Buyer’s purchase of the Class A Units pursuant to this Agreement, the taxable year of Holdco shall terminate under Section 708(b)(1)(B) of the Code, as of the close of business on the Closing Date. Each of Seller and New SPC agrees that, notwithstanding anything herein to the contrary, it shall include in its taxable income for federal and applicable state and local income Tax purposes its allocable share of all items of income, gain, loss, expense and deduction of Holdco (as determined for federal and applicable state and local income Tax purposes) for the Tax Period ending on the Closing Date. On Holdco’s federal income tax return for the short taxable year ending on the Closing Date, Seller shall cause Holdco to make an election under Section 754 of the Code such that Buyer is entitled to an adjustment under Section 743(b) of the Code as a result of its purchase of Class A Units pursuant to this Agreement.

(g) Maintenance of Opco’s Transferred Books and Records. Until the applicable statute of limitations (including periods of waiver) has run for any Tax Returns filed or required to be filed covering the periods up to and including the Closing Date, Opco shall retain all Transferred Books and Records with respect to the Business in existence on the Closing Date and after the Closing Date will provide Seller access to such Transferred Books and Records for inspection and copying by Seller or its agents upon reasonable request and upon reasonable notice.

(h) Covenants Regarding New SPC. For a period of not less than two (2) years following the Closing Date, Seller shall not cause or permit any of the following transactions to occur with respect to New SPC unless, following the completion of such transaction, Holdco has at least two members (other than Buyer or any Affiliate of Buyer) that are recognized as separate entities for U.S. federal income tax purposes and that each hold an interest of at least two percent (2%) of the capital and profits interests in Holdco: (i) the liquidation, dissolution or other termination of the separate legal existence of New SPC, (ii) the merger or consolidation of New SPC with another legal entity, (iii) the conversion of New SPC into a limited liability company or other type of legal entity not classified as a corporation for U.S. federal income tax purposes, or (iv) the sale, assignment, transfer or

other disposition by New SPC of any portion of its membership interest in Holdco to Seller or any Affiliate of Seller; provided, however, that this Section 5.04(h) shall not apply in the event that all of the Holdco LLC Interests held by Seller, New SPC or any of their Affiliates are acquired by Buyer or its Affiliates or any other third party acquirer pursuant to the terms of the Holdco LLC Agreement.

(i) Termination of Tax Sharing Agreements. SPC’s obligations under all tax sharing agreements or similar agreements (including that certain Intercompany Tax Allocation Agreement with First National of Nebraska, Inc.) shall be terminated as of the Closing Date and, after the Closing Date, Opco (as the successor to SPC pursuant to the SPC Merger) shall not be bound thereby or have any liability thereunder.

(j) Tax Treatment of SPC Merger. For federal income tax purposes, the parties hereto agree to treat the SPC Merger as (i) a contribution of all of the assets and liabilities held by SPC immediately before the SPC Merger to a partnership, in exchange for a partnership interest, in a transaction governed by Section 721 of the Code, followed immediately thereafter by (ii) a deemed distribution of such interest in such partnership to Seller in complete liquidation of SPC.

Section 5.05. Employee and Benefits Matters.

(a) Offers of Employment. Prior to the Closing Date, Seller and/or Holdco shall cause Opco to make an offer of employment to each Applicable Employee effective on the later of the Closing Date or the first Business Day on which the Applicable Employee is actively at work (“Employment Effective Date”), which offer shall (i) be at salary or hourly wage rates (as the case may be) not less than the salary or wage rates received by the Applicable Employees immediately prior to the Closing Date, (ii) provide an annual incentive compensation opportunity that is comparable to the Applicable Employee’s annual incentive compensation opportunity immediately prior to the Closing Date, provided that the performance metrics applicable to any such annual incentive compensation opportunity provided after the Closing Date may be adjusted by Opco in its sole discretion, (iii) be for employment at the same work location and in the same or substantially similar positions and with similar duties to the positions held by, and the duties performed by, the Applicable Employees immediately prior to the Closing Date, and (iv) be conditioned on the Applicable Employee’s agreement to the Buyer’s Employee Confidentiality and Non-Disclosure Agreement and Team Member Guide. For purposes of this Agreement, each of the Applicable Employees who affirmatively accepts Opco’s offer of employment and commences working for Opco on or after the Closing Date shall become a “Transferred Employee” on his or her Employment Effective Date. Except with respect to any Critical Employee, all such offers of employment pursuant to this Section 5.05(a) will be for employment at will, and Opco may terminate any Transferred Employee at any time and for any reason following the Closing Date. All Applicable Employees who are not actively at work on the Closing Date shall be identified on Schedule 5.5(a).

(b) Employee Benefits; Crediting of Service. On and after the Closing Date, Buyer and/or Holdco shall cause Opco to make available to Transferred Employees (and their eligible spouses, dependents and beneficiaries) employee pension benefits and

employee welfare benefits that are substantially comparable, in the aggregate, to the pension and welfare benefits provided to similarly situated Buyer employees (and, as applicable, their eligible spouses, dependents and beneficiaries) without limitations based upon preexisting conditions (and the amount of year-to-date deductibles incurred by Transferred Employees prior to the Closing Date under Seller’s or its Affiliates’ Benefit Plans shall be credited toward satisfaction of deductibles and out-of-pocket expenses under the employee benefits and compensation plans, programs and arrangements sponsored or maintained by Opco (the “Company Plans”) for the year in which the Closing Date occurs). Notwithstanding the foregoing, Transferred Employees shall not participate in Buyer’s employee stock purchase plan or any retiree medical coverage provided under Buyer’s self insured medical plans. Buyer and Seller agree to ensure that the Company Plans grant full credit for all service or employment with, or recognized by, Seller and its Affiliates for purposes of eligibility, participation, contribution and vesting with respect to any Company Plan (but not benefit accrual) that is an “employee pension benefit plan,” as defined in Section 3(2) of ERISA, and for purposes of eligibility, participation and determining the amount of any benefit with respect to any Company Plan that is a vacation or paid days off or other program that is affected by seniority and any Company Plan that is an “employee welfare benefit plan,” as defined in Section 3(1) of ERISA, including any severance plan or sick plan. The Transferred Employees shall be credited under Opco’s Section 125 plan with the amounts available for reimbursement equal to such positive or negative amounts as were credited under Seller’s Section 125 plan in which health care and dependent care flexible spending accounts are established under Section 125 of the Code with respect to such person immediately prior to the Closing Date. Opco shall honor and give effect under its Section 125 plan to any elections made by the Transferred Employees under Seller’s Section 125 plan for the year in which the Closing occurs, and new elections shall be permitted under Opco’s Section 125 Plan consistent with Section 125 of the Code. Seller shall provide a list of each Transferred Employee who as of the Closing Date is a participant in the Seller’s Section 125 plan, which list shall include an accounting with respect to each listed participant as follows: the total annual amount elected, the amount contributed as of the Closing Date, and the amount reimbursed as of the Closing Date. Seller shall pay Opco the net balance of the total Transferred Employee participants’ contributions minus the total Transferred Employee participants’ reimbursements if the balance is a positive number, and Opco shall pay Seller such amount if the balance is a negative number. In addition, Opco shall honor any transit and parking elections and account balances made by the Transferred Employees prior to the Closing Date.

(c) Welfare Benefits Generally. (i) Seller shall be solely responsible for (A) claims and fixed fees for the type of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) (“Welfare Benefits”) and for workers’ compensation, in each case that are incurred by or with respect to any Transferred Employee or his or her spouse, dependent or beneficiary before the Closing Date, regardless of whether such claims are made and/or identified prior to or after the Closing Date; (B) claims and fixed fees for Welfare Benefits and for workers’ compensation, in each case that are incurred by or with respect to any Applicable Employee (or his or her spouse, dependent or beneficiary) who does not become a Transferred Employee, whether incurred before, on or after the Closing Date, and (C) claims and fixed fees relating to COBRA Coverage attributable to “qualifying events” occurring before or on the Closing Date, and all claims relating to COBRA

Coverage attributable to “qualifying events” with respect to any Applicable Employee who does not become a Transferred Employee and his or her eligible beneficiaries and dependents occurring before, on or after the Closing Date; and (ii) the Companies shall be solely responsible for (A) claims and fixed fees for Welfare Benefits and for workers’ compensation, in each case that are incurred by or with respect to any Transferred Employee on or after the Closing Date (except to the extent the Transferred Employee or any beneficiary or dependent thereof has elected COBRA Coverage under Seller’s Welfare Benefits plans) and (B) claims and fixed fees relating to COBRA Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her eligible beneficiaries and dependents that occur after the Closing Date; it being understood by both parties that any such liability incurred by Seller after the Closing Date with respect to a Transferred Employee shall be reimbursed by Opco to Seller to the extent provided in the Service Agreements. For purposes of the foregoing, a medical/dental claim shall be considered incurred when the services are rendered, the supplies are provided or medication is prescribed, and not when the condition arose. A disability or workers’ compensation claim shall be considered incurred on or before the Closing Date if the injury or condition giving rise to the claim occurs on or before such date.

(d) Paid Time Off. For 2010, Buyer and Seller agree that a Transferred Employee will receive an amount of vacation and paid days off under Opco’s vacation and paid days off policy based on the Transferred Employee’s service with Seller, as described in Section 5.05(b), but the amount of vacation under Opco’s vacation policy for 2010 shall be prorated based on the number of days remaining in 2010 after the Closing Date. Seller shall pay each Transferred Employee for any paid time off accrued in 2010 but unused as of the Closing Date. Buyer and Seller agree that Opco shall not assume the liability for accrued paid time off with respect to any Transferred Employee as of the Closing Date and shall not allow any such Transferred Employee to use such accrued paid time off (or the vacation or sick leave equivalent thereof under Opco’s vacation policy) following the Closing Date. Seller shall retain all liability with respect to any accrued paid time off or vacation benefit to which any Applicable Employee is entitled immediately prior to the Closing Date.

(e) 401(k) Plan. Seller shall fully vest the account balances of Transferred Employees under any plan that is intended to be a tax-qualified defined contribution retirement plan (collectively, the “Seller 401(k) Plan”). Opco shall establish or maintain for the benefit of the Transferred Employees a tax-qualified defined contribution retirement plan (the “Opco 401(k) Plan”) as soon as practical after the Closing Date. Upon the election by a Transferred Employee, Opco shall cause the Opco 401(k) Plan to accept a rollover of all amounts, including loans, from the Transferred Employee’s account in the Seller 401(k) Plan.

(f) Employee Withholding and Reporting Matters. With respect to Transferred Employees, from the time such transfer occurs, Opco shall, in accordance with and to the extent permitted pursuant to the “standard procedure” set forth in Revenue Procedure 2004-53, I.R.B. 2004-34, Section 4, unless otherwise provided in the Ancillary Agreements, be responsible for preparing and filing Form W-2, Wage and Tax Statement, Form W-3, Transmittal of Income and Tax Statements, Form 941, Employer’s Quarterly Federal Tax

Return, Form W-4, Employee’s Withholding Allowance Certificate, and Form W-5, Earned Income Credit Advance Payment Certificate for the portion of the calendar year beginning on the day after the Closing Date. Seller shall be responsible for such filings with respect to wages paid and taxes withheld by Seller for the portion of the calendar year beginning in January of the year in which the Closing occurs and ending on the Closing Date. The parties hereto agree to comply with the procedures described in Section 4 of the Revenue Procedure 2004-53, I.R.B. 2004-34.

(g) No Third-party Beneficiaries; Information. Nothing in this Section 5.05, express or implied, (i) is intended to confer on any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or Liabilities under or by reason of this Agreement or (ii) shall limit the right of Opco to terminate any Transferred Employee after the Closing Date or to modify the terms or conditions of any Transferred Employee’s employment or benefits. Seller shall provide Opco with such information and records ordinarily maintained by Seller that are necessary for Opco to comply with its obligations under this Section 5.05.

(h) Employee Transition. The Parties hereto shall use their commercially reasonable efforts to (i) establish and have Opco adopt the Company Plans on or prior to the Closing Date, and (ii) establish all human resource functions necessary to support the day-to-day operations of Opco and its employees prior to the termination of any Seller Services provided to Opco by Seller under any Ancillary Agreement.

(i) Terminated Employees. If at any time prior to the first anniversary of the Closing Date any Transferred Employee’s employment with Opco is terminated by Opco for reasons other than theft, gross negligence, job abandonment or violation of laws, regulations or Opco policies (a “Terminated Employee”), Buyer shall or shall cause Opco to provide Seller with the name of such Terminated Employee as soon as practical after the termination takes effect.

(j) Opco Service. Except as required by applicable law or Section 5.05(e), service with Opco on or after the Closing Date shall not be considered for any purposes under the Seller’s Benefit Plans.

Section 5.06. Ancillary Agreements. At the Closing, Seller shall execute and deliver each Ancillary Agreement to which it is a party, each of the Companies shall execute and deliver each Ancillary Agreement to which it is a party, and Buyer shall execute and deliver each of the Ancillary Agreements to which it is a party. Buyer and Seller hereby acknowledge and agree that each of the Ancillary Agreements reflects the good-faith, arm’s-length negotiations of the Parties and sets forth such terms and conditions which are fair and commercially reasonable. Seller and Buyer shall use commercially reasonable and good faith efforts to agree to the form and substance of the Ancillary Agreements which are not Exhibits to this Agreement.

Section 5.07. [Intentionally Deleted.]

Section 5.08. Nonsolicitation.

(a) Seller agrees that during the period commencing on the date hereof and ending on the earlier of the second anniversary of the Closing Date and the first date on which Seller (together with its Affiliates) holds Holdco LLC Interests representing less than 10% of the outstanding Holdco LLC Interests or common stock or other equity securities into which the Holdco LLC Interests may be converted in anticipation of an initial public offering of Holdco or otherwise, neither it nor any of its Affiliates will directly or indirectly, without obtaining the prior written permission of Buyer, except as contemplated by the Ancillary Agreements, (i) induce or encourage any Applicable Employee to reject Opco’s offer of employment or to accept any other position or employment, (ii) induce or encourage any employee of Opco to terminate his or her employment with Opco, (iii) solicit for employment or any similar arrangement any employee of Opco or (iv) hire or assist any other Person in hiring any employee of Opco; provided, however, that for purposes of this Section 5.08(a) “solicit for employment” and hiring shall not include (A) responses to any general advertisement not targeted at employees of Opco appearing in a newspaper, magazine, Internet sites or trade publication, and any hiring resulting therefrom, or (B) the solicitation or hiring of any Terminated Employee.

(b) Buyer and each of the Companies agree that for the period commencing on the Closing and ending on the second anniversary of the Closing Date, neither Buyer (including any of its Affiliates acting at the direction of Buyer or to whom information concerning the Companies or an Applicable Employee has been provided) nor any of the Companies (including any of their respective controlled Affiliates or any of their other respective Affiliates acting at the direction of the Companies or to whom information concerning the Companies or an Applicable Employee has been provided) will directly or indirectly, without obtaining the prior written permission of Seller, (i) solicit for employment or any similar arrangement any employee (other than, in the case of Opco, an Applicable Employee in a manner consistent with Section 5.05) of Seller or any of its Affiliates with whom Buyer or any of its Affiliates came into contact during the discussions relating to, negotiation of and execution of this Agreement or any Ancillary Agreement or who is then currently involved in providing services to Opco under any Ancillary Agreement or (ii) hire or assist any other Person in hiring any employee of Sellers or any of its Affiliates with whom Buyer or any of its Affiliates came into contact during the discussions relating to, negotiation of and execution of this Agreement or any Ancillary Agreement or who is then currently involved in providing services to Opco under any Ancillary Agreement; provided, however, that for purposes of this Section 5.08(b) “solicit for employment” and hiring shall not include (A) referrals for employment made by a placement agency or employment service and any hiring resulting therefrom, so long as such placement agency or employment service has not targeted employees of Seller or any of its Affiliates or (B) responses to any general advertisement not targeted at employees of Seller or any of its Affiliates appearing in a newspaper, magazine, Internet sites or trade publication, and any hiring resulting therefrom.

Section 5.09. Further Assurances. From time to time after the Closing Date, each Party shall, and shall cause its respective Affiliates to, promptly execute, acknowledge and deliver any other assurances or documents or instruments of transfer reasonably requested by another Party and necessary for the requesting Party to satisfy its obligations hereunder or to obtain the benefits of the Transactions. Seller shall use commercially reasonable efforts to obtain third-party releases for the

benefit of the Companies and their controlled Affiliates with respect to any Excluded Liabilities and to cause Opco to be substituted in place of Seller or an Affiliate of Seller, as the case may be, for all purposes under the Transferred Contracts.

Section 5.10. Licensed Intellectual Property. Notwithstanding anything to the contrary contained herein or in any Ancillary Agreement, Seller has the sole and exclusive right to prosecute, defend, settle or otherwise control any Legal Proceeding, claim or action relating to the Seller Licensed Intellectual Property, except to the extent such claim is exclusively one between the parties hereto and their Affiliates.

Section 5.11. Confidentiality.

(a) Each Party will maintain in strict confidence, and will cause each of its respective directors, officers, employees, agents, and advisors, if applicable, to maintain in strict confidence and to prevent the unauthorized use, disclosure, publication or dissemination of, the Confidential Information furnished to such Party by any other Party; except (i) to the extent this Agreement and such negotiations need to be disclosed to obtain approval from any Governmental Entity, including pursuant to the HSR Act, or Self-Regulatory Organization, (ii) for disclosures made in accordance with the terms of this Agreement, and (iii) to the extent required by applicable Law, regulations, or rules of any applicable national securities exchange or Card Association; provided, however, that a Party may disclose Confidential Information of another party if required by Law or any judicial or governmental request, requirement or order from a Governmental Entity; provided, that, if and to the extent permitted by Law, such disclosing Party will promptly notify such other Party of such request and cooperate with such other Party in its efforts to contest such request, requirement or order or to obtain confidential treatment of such Confidential Information. The Confidential Information may be disclosed only to employees, lawyers, accountants, bankers and other consultants (“Agents”), who have a need to review the Confidential Information for the purpose of consummating the Transactions. Should any Party provide any Confidential Information of another Party to any of its Agents, such Party will inform such Agents of the confidential nature of the Confidential Information, direct them not to disclose the Confidential Information or use the Confidential Information other than in accordance with this Agreement and shall be responsible for any breach of this Section 5.11 by such Agents. If this Agreement or its terms need to be disclosed to a Governmental Entity to obtain any regulatory approval therefrom, the Parties and their Affiliates shall submit this Agreement and its terms to such Governmental Entity under its rules and procedures governing requests for confidential treatment of documents and shall use reasonable efforts to cause this Agreement and its terms to be granted confidential treatment.

(b) Notwithstanding any other express or implied agreement, arrangement, or understanding to the contrary, Buyer and Seller may disclose to any third party, without limitation of any kind, the tax treatment and tax structure of the Transactions and all materials of any kind (including opinions or other tax analyses) that are provided to Buyer or Seller relating to such tax treatment and tax structure; provided, however, that none of Buyer or Seller (nor any employee, representative, or other agent of such person) may disclose any information that is not necessary to understanding the tax treatment and tax structure of the

Transactions or that does not directly relate to the tax treatment and tax structure of the Transactions, or any information to the extent such disclosure could result in a violation of any law, rule, regulation, judgment, order, governmental permit, or license.

(c) The Parties and their Affiliates shall use all information that each obtains from the other pursuant to this Agreement solely for the effectuation of the Transactions or for other purposes consistent with the intent of this Agreement. Neither Party nor any of its Affiliates shall use any of such information for any other purpose, including the competitive detriment of the other Party.

(d) This Section 5.11 shall survive any termination of this Agreement; provided, however, that effective upon the Closing, the provisions of this Section 5.11 shall terminate with respect to the Companies’ use of Confidential Information related solely to the Transferred Assets and the Assumed Liabilities insofar as such Confidential Information is used solely in connection with the operation of the Business.

(e) The Parties agree that the terms, conditions and restrictions of this Section 5.11 shall replace and supersede the terms, conditions and restrictions of the Confidentiality Agreement with respect to the Buyer. In the event of a conflict between the provisions of this Section 5.11 and the Confidentiality Agreement, the provisions of this Section 5.11 shall control.

Section 5.12. Notification. Prior to the Closing, Seller shall, as soon as reasonably practicable, notify Buyer (after Seller has notice thereof), and Buyer shall promptly notify Seller (after Buyer has notice thereof), and keep such other Party advised, as to any litigation pending or, to Seller’s Knowledge or the actual knowledge of Buyer, as applicable, threatened against such Party, Holdco or Opco that challenges a Party’s ability to effect the Transactions.

Section 5.13. Disclosure Schedules. Seller shall be entitled to supplement or amend any schedule only if required to update such schedule to reflect events or occurrences after the date hereof, and any such updates shall be promptly provided to Buyer after such event or occurrence (but in no event later than three Business Days prior to the Closing Date, unless further updates are necessitated by events occurring after such date). Seller represents and warrants to Buyer that any supplement or amendment to the schedules shall be accurate, true, correct and complete as of the date of delivery to Buyer and as of the Closing Date. It is expressly understood that information contained in any supplement or amendment to a disclosure schedule delivered pursuant to this Section 5.13 shall not be taken into account for purposes of determining the fulfillment or satisfaction of the conditions set forth in Section 6.02 or with respect to claims for indemnification pursuant to Article VII relating to any breaches or inaccuracy of a representation or warranty.

Section 5.14. Consents and Approvals.

(a) Other than any Seller Required Approvals from or with a Governmental Entity, on or prior to the one-year anniversary of the Closing Date, Seller and its Affiliates shall deliver to Buyer copies of all Seller Required Approvals.

(b) Buyer and Seller shall, and shall cause their respective Affiliates and the Companies, to use their commercially reasonable efforts to obtain or deliver all such Seller

Required Approvals from or with any Person contemplated by this Section 5.14 as soon as practicable. Buyer and Seller shall not, and shall not cause their respective Affiliates or the Companies, to take any action that would delay, impair or impede the receipt or delivery of such Seller Required Approvals.

Section 5.15. Collection of Receivables. The Parties acknowledge and agree that accounts receivable of the Business do not constitute any part of the Transferred Assets, however, subject to the restrictions and provisions of the Fair Debt Collection Practices Act and all statutes and regulations which concern customer privacy, Buyer agrees to use, and shall cause the Companies to use, its commercially reasonable efforts to collect accounts receivable of the Business which were accrued prior to the Closing Date for a period of one hundred twenty (120) days following the Closing Date. Notwithstanding the foregoing, neither Buyer nor any of the Companies shall be obligated to take any action in connection with the collection of such accounts receivable, including but not limited to retaining the services of a collection agency or initiating legal action, if in Buyer’s reasonable judgment, such action would jeopardize Buyer’s or the Companies’ business, including but not limited to any relationship with a customer of the Business. Buyer does not have any power or authority to, and will not negotiate any such receivables of the Business, including, but not limited to, offering discounts, rebates or other like structures. If any such payments are sent to Buyer, the Companies or Seller regarding invoices and/or services performed, Buyer and Seller shall reconcile such payment to a particular invoice and shall retain or, on a bi-weekly basis, forward any and all such payments to the other, as appropriate. Subject to the limitations set forth in this Section, effective upon the Closing Date, Seller hereby constitutes and appoints Buyer, the Companies and their respective successors and assigns the true and lawful attorney in fact of Seller with full power of substitution, in the name of Buyer or the Companies, as appropriate, or the name of Seller, to collect all of the accounts receivable of the Business, and to endorse, without recourse, checks, notes and other instruments constituting or relating to such receivables in the name of Seller. The foregoing power is coupled with an interest and shall be irrevocable by Seller. Seller shall promptly reimburse Buyer for all reasonable costs and expenses incurred by Buyer or the Companies (as applicable) in connection with the agreements set forth in this Section 5.15.

Section 5.16. Opco Credit Facility. As soon as practicable following the Closing Date, but in no case later than 10 Business Days thereafter, Buyer agrees to provide Opco with a intercompany credit facility, subject to customary terms and conditions, providing for loans and other extensions of credit in an aggregate principal amount of up to $10,000,000 for a term of up to 120 days.

ARTICLE VI

CONDITIONS TO CLOSING

Section 6.01. Conditions to the Obligations of the Parties. The obligations of Seller and the Companies, on the one hand, and Buyer, on the other hand, to effect the Closing are subject to the satisfaction (or waiver) prior to the Closing of the following conditions:

(a) U.S. Antitrust Laws. The waiting periods applicable to the consummation of the Transactions under any U.S. Antitrust Laws, including the HSR Act, shall have expired or been terminated.

(b) No Prohibition; Other Matters. No Government Entity shall have commenced any legal action or proceeding against Seller or Buyer or their respective Affiliates to enjoin or otherwise prohibit the consummation of the Transactions, which legal action or proceeding has a reasonable probability of succeeding on the merits. No Law shall be in effect enjoining or otherwise prohibiting the consummation of the Transactions.

(c) Consents and Approvals. All Seller Required Approvals, all Company Required Approvals and all Buyer Required Approvals from a Governmental Entity shall have been obtained.

Section 6.02. Conditions to the Obligations of Buyer. The obligation of Buyer to effect the Closing is subject to the satisfaction (or waiver) prior to the Closing of the following conditions:

(a) Representations and Warranties. The representations and warranties of Seller and New SPC set forth in Article III shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date, other than representations and warranties that are made as of a specific date, in which case such representations and warranties shall be true and correct in all respects as of such specific date; provided, however, that no failures of such representations and warranties to be true and correct shall constitute a failure to satisfy the condition set forth in this Section 6.02(a) unless such failures to be true and correct, individually or in the aggregate, have resulted or would reasonably be expected to result in Losses to the Business in excess of $15,045,000.

(b) Covenants. Each of the covenants and agreements of Seller, New SPC or the Companies to be performed on or prior to the Closing shall have been duly performed in all material respects.

(c) Ancillary Agreements. Seller, New SPC and each of the Companies shall have executed and delivered the Ancillary Agreements and the other documents required by Section 2.06 or 2.07 to which it is a party or signatory.

(d) [Intentionally Deleted.]

(e) Certificate. Buyer shall have received a certificate, signed by a duly authorized officer of Seller and dated the Closing Date, to the effect that the conditions set forth in Sections 6.02(a), 6.02(b) and 6.02(f) have been satisfied.

(f) Completion of Contribution. The Contribution (including the SPC Merger) and the assumption of the Assumed Liabilities shall have been completed and shall be effective at least one Business Day before the date of the proposed Closing.

(g) Cash Contribution. Opco shall have the $2,000,000 in cash contributed by Holdco, and $1,000,000 of such cash shall be allocated for the Reserve Account (as

contemplated by and defined in the Acquiring Sponsorship Agreement), as of the Closing Date.

Section 6.03. Conditions to the Obligations of Seller and the Companies. The obligation of Seller, New SPC and the Companies to effect the Closing is subject to the satisfaction (or waiver) prior to the Closing of the following conditions:

(a) Representations and Warranties. The representations and warranties of Buyer set forth in Article IV (i) that are not qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all material respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date, and (ii) that are qualified as to “materiality” and/or “Material Adverse Effect” shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date, in each case other than representations and warranties that are made as of a specific date, in which case such representations and warranties shall be true and correct in all material respects or true and correct in all respects, as the case may be, as of such specific date.

(b) Covenants. Each of the covenants and agreements of Buyer to be performed on or prior to the Closing shall have been duly performed in all material respects.

(c) Ancillary Agreements. Buyer shall have executed and delivered the Ancillary Agreements and the other documents required by Section 2.07 to which it is a party or signatory.

(d) Certificate. Seller shall have each received a certificate, signed by a duly authorized officer of Buyer and dated the Closing Date, to the effect that the conditions set forth in Sections 6.03(a) and 6.03(b) have been satisfied.

ARTICLE VII

SURVIVAL; INDEMNIFICATION; CERTAIN REMEDIES

Section 7.01. Survival. The representations and warranties of Seller and Buyer contained in this Agreement shall survive the Closing for the period set forth in this Section 7.01. All representations and warranties set forth in this Agreement and all claims with respect thereto shall terminate upon the expiration of 18 months after the Closing Date, except that (a) the representations and warranties contained in Sections 3.01, 3.02, 3.04(a), 3.05, 4.01, 4.02, 4.04(a) and 4.05 shall survive forever (the “Fundamental Representations”), (b) the representations and warranties contained in Section 3.17 shall survive until 60 days after the expiration of the relevant statute of limitations and (c) any representation or warranty, and any Liability with respect thereto, that would otherwise terminate in accordance with this Section 7.01, shall continue to survive if a notice of a claim for a breach or inaccuracy of such representation or warranty shall have been timely given under this Article VII on or prior to such termination until such claim has been satisfied or otherwise resolved as provided in this Article VII, but only with respect to such claim. All covenants or other agreements herein which by their terms are to be performed in whole or in part, or which prohibit actions, subsequent to the Closing Date, shall survive the Closing in accordance with their terms.

Section 7.02. Indemnification by Seller.

(a) Seller hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Buyer and its Affiliates (including, for the avoidance of doubt, the Companies) and their respective directors, officers, shareholders, partners, members (other than Seller or any of its Affiliates in the case of the Companies on and after the Closing) and employees (other than the Transferred Employees) and their heirs, successors and permitted assigns, each in their capacity as such (the “Buyer Indemnified Parties” and, collectively with the Seller Indemnified Parties, the “Indemnified Parties”) from, against and in respect of any damages, losses, charges, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, Taxes, interest, penalties and costs and expenses, including fines and penalties (including expenses of investigation and reasonable attorneys’ fees and expenses) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Buyer Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto or otherwise, directly or indirectly relating to or arising out of (i) subject to Section 7.02(b), any breach or inaccuracy of any representation or warranty made by Seller contained in this Agreement for the period such representation or warranty survives, (ii) subject to Section 7.02(b), the termination of a Transferred Contract, except for those Transferred Contracts specifically set forth on Schedule 7.2(c), prior to the first anniversary of the Closing Date as a result of the failure to obtain or deliver any Seller Required Approval contemplated by Section 5.14(a), (iii) any breach of any covenant or agreement of Seller contained in this Agreement, other than Section 5.14(a); (iv) solely with respect to the Companies and their respective directors and officers, any of the Excluded Liabilities, including (A) any and all Liabilities relating to the Applicable Employees to the extent not expressly assumed by the Companies in this Agreement or not an obligation of the Companies pursuant to any Ancillary Agreement, (B) any Taxes for which Seller is responsible in accordance with Section 5.04 and (C) any and all Liabilities arising out of the matters set forth on Schedule 3.7 (including, for the sake of clarity, all indemnification, contribution or other Liabilities in respect of, arising from or otherwise relating to such matters or the facts and circumstances pursuant to which such matters relate), except, in the case of this clause (A) or (C), to the extent any such Liability is expressly set forth on Schedule 1.1(c) as an Assumed Liability and (v) fraud, willful misconduct or bad faith of the Seller or any Affiliate thereof in connection with the Transactions. Notwithstanding anything else to the contrary in this Article VII, any indemnification by Seller of the Buyer Indemnified Parties shall be without duplication as between Buyer and the Companies (and their respective directors, shareholders, partners, members (other than Seller or any of its Affiliates in the case of any of the Companies on and after the Closing) and employees), including, for illustrative purposes, that Seller shall not be required to also indemnify Buyer with respect to Losses incurred with respect to a diminution in value of its Holdco LLC Interests on or after the Closing in the event that the Companies have been indemnified by Seller with respect to the facts giving rise to a claim of indemnification hereunder and vice versa.

(b) Seller shall not be liable to the Buyer Indemnified Parties for any Losses with respect to the matters contained in Section 7.02(a)(i) or Section 7.02(a)(ii) until the aggregate amount of such Losses is in excess of $1,500,000 (the “Deductible”) and then only for Losses in excess of the Deductible, and up to an aggregate amount equal to

$30,090,000 (the “Cap”). No such item or related items involving Losses equal to or less than $25,000 (the “Threshold”) shall be applied or consolidated for purposes of calculating the Deductible or the Cap. For the purpose of this Section 7.02(b), multiple claims that are individually less than or equal to the Threshold and that are reasonably related to a single breach or other event forming the basis or claim for Losses under this Article VII shall be treated as one individual claim for purposes of testing the Threshold. Notwithstanding the foregoing, claims for indemnification pursuant to Section 7.02(a)(i) with respect to a Seller’s Fundamental Representations shall not be subject to the Deductible or the Cap; provided, however, that in no event shall Seller’s liability for any such claims be in excess of the Purchase Consideration.

(c) Schedule 7.2(c) sets forth the agreement among the Parties regarding any indemnification obligations with respect to the matters set forth thereon.

Section 7.03. Indemnification by Buyer.

(a) Buyer hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Seller, its Affiliates and their respective directors, officers, shareholders, partners, members and employees and their heirs, successors and permitted assigns, each in their capacity as such (the “Seller Indemnified Parties”) from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Seller Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (i) subject to Section 7.03(b), any breach or inaccuracy of any representation or warranty made by Buyer contained in this Agreement for the period such representation or warranty survives, (ii) any breach of a covenant or agreement of Buyer contained in this Agreement, and (iii) fraud, willful misconduct or bad faith of the Buyer in connection with the Transactions.

(b) Buyer shall not be liable to the Seller Indemnified Parties for any Losses with respect to the matters contained in Section 7.03(a)(i) until the aggregate amount of such Losses is in excess of the Deductible and then only for Losses in excess of the Deductible, and up to an aggregate amount equal to the Cap. No item or related items involving Losses equal to or less than the Threshold shall be applied or consolidated for purposes of calculating the Deductible or the Cap. For the purpose of this Section 7.03(b), multiple claims that are individually less than or equal to the Threshold and that are reasonably related to a single breach or other event forming the basis or claim for Losses under this Article VII shall be treated as one individual claim for purposes of testing the Threshold. Notwithstanding the foregoing, claims for indemnification pursuant to Section 7.03(a)(i) with respect to Buyer’s Fundamental Representations shall not be subject to the Deductible or the Cap; provided, however, that in no event shall Buyer’s liability for any such claims be in excess of the Purchase Consideration.

Section 7.04. Indemnification by the Companies. Buyer and Seller agree to cause the Companies from and after the Closing to, jointly and severally, indemnify, defend and hold harmless the Seller Indemnified Parties from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Seller Indemnified Parties,

whether in respect of Third-Party Claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, arising out of or resulting from (a) any breach of any covenant of the Companies set forth in Sections 5.01, 5.04, 5.05, 5.06, 5.08 and 5.11 occurring after the Closing, (b) the Assumed Liabilities and (c) the Transferred Assets, the Business or the Transferred Employees to the extent attributable to the operation or ownership of the Transferred Assets or the Business or the employment of the Transferred Employees, in each case, following the Closing (other than with respect to Losses of the Seller Indemnified Parties arising as a result of the action or inaction of Seller of New SPC as an equity owner of Holdco or other agreements entered into with the Companies).

Section 7.05. Third-Party Claim Indemnification Procedures.

(a) In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than 30 days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure to give a timely Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have 30 days (or such less number of days set forth in the Claim Notice as may be required by Legal Proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to defend the Indemnified Party against such Third-Party Claim.

(b) In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate Legal Proceedings and shall have the sole power to direct and control such defense at its expense. Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnifying Party shall defend such Third-Party Claim and the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing. The Indemnified Party may participate in any such defense at its expense; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the reasonable expense of the Indemnifying Party if (i) the Indemnified Party shall have reasonably concluded that representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (ii) the Indemnified Party assumes the defense of a Third-Party Claim after the Indemnifying Party has failed to diligently pursue a Third-Party Claim it has assumed, as provided in the first sentence of Section 7.05(c). The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld or delayed), settle, compromise or offer to

settle or compromise any Third-Party Claim on a basis that would result in (A) the imposition of a consent Order, injunction or decree that would materially restrict the future activity or conduct of the Indemnified Party or any of its Affiliates, (B) a finding or admission of a violation of Law or violation of the rights of any Person by the Indemnified Party or any of its Affiliates, (C) a finding or admission that would have an adverse effect on other claims made or threatened against the Indemnified Party or any of its Affiliates or (D) any monetary liability of the Indemnified Party that will not be promptly paid or reimbursed by the Indemnifying Party, and in connection with any of the foregoing, the Indemnified Party alone shall be entitled to contest, defend, compromise and settle such Third-Party Claim in the first instance.

(c) If the Indemnifying Party (i) elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, (ii) is not entitled to defend the Third-Party Claim as a result of the Indemnified Party’s election to defend the Third-Party Claim as provided in Section 7.05(b) or (iii) after assuming the defense of a Third-Party Claim, fails to take reasonable steps necessary to defend diligently such Third-Party Claim within 10 days after receiving written notice from the Indemnified Party to the effect that the Indemnifying Party has so failed, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.

(d) The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents and employees; it being understood that the costs and expenses of the Indemnified Party relating thereto shall be Losses. The party that assumes the defense and investigation of the Third Party Claim in accordance with this Agreement shall keep the other party reasonably informed of the progress of any such defense, compromise or settlement.

(e) The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of Confidential Information (consistent with applicable Law) and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.

Section 7.06. Direct Claims. If an Indemnified Party wishes to make a claim for indemnification hereunder for a Loss that does not result from a Third-Party Claim (a “Direct Claim”), the Indemnified Party shall notify the Indemnifying Party in writing of such Direct Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Direct Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto. The Indemnifying Party shall have a period of 30 days within which to respond to such Direct Claim. If the Indemnifying Party rejects all or any part of

the Direct Claim, the Indemnified Person shall be free to seek enforcement of its rights to indemnification under this Agreement with respect to such Direct Claim.

Section 7.07. Consequential Damages. Notwithstanding anything to the contrary contained in this Agreement, no Person shall be liable under this Article VII for (a) any Losses that are not direct, actual damages or (b) any consequential, exemplary, punitive, special or speculative damages.

Section 7.08. Adjustments to Losses.

(a) Insurance. In calculating the amount of any Loss, the proceeds actually received by the Indemnified Party or any of its Affiliates under any insurance policy or pursuant to any claim, recovery, settlement or payment by or against any other Person in each case relating to the Third-Party Claim or the Direct Claim, net of any actual costs, expenses or premiums (including any increase in premiums exclusively and demonstrably attributable to insurance claims relating to such Loss) incurred in connection with securing or obtaining such proceeds, shall be deducted. Each Indemnified Party shall use commercially reasonable efforts to collect any amounts available under insurance coverage, or from any other Person alleged to be responsible, for any Losses to the same extent that such Indemnified Party would if such Loss were not subject to indemnification hereunder.

(b) Taxes. In calculating the amount of any Loss, there shall be deducted an amount equal to any net Tax benefit actually realized through a reduction in cash Taxes otherwise due (including the utilization of a Tax loss or Tax credit carried forward) as a result of such Loss by the party claiming such Loss, and there shall be added an amount equal to any Tax imposed on the receipt of any indemnity payment with respect thereto.

(c) Reimbursement. If an Indemnified Party recovers an amount from a third party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this Article VII, the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of Loss.

(d) Qualifiers. For purposes of determining the failure of any representations and warranties (other than representations and warranties in Sections 3.12 and 3.14) to be true and correct, the breach of any covenants or agreements and calculating Losses hereunder, any materiality or Material Adverse Effect qualifications in the representations, warranties, covenants and agreements shall be disregarded.

Section 7.09. Payments. The Indemnifying Party shall pay all amounts payable pursuant to this Article VII (the “Indemnity Amount”) by wire transfer of immediately available funds, within a reasonable period of time following receipt from an Indemnified Party of a bill, together with reasonably detailed backup documentation, for a Loss that is the subject of indemnification hereunder, unless the Indemnifying Party in good faith disputes the Loss, in which event it shall so notify the Indemnified Party. In any event, the Indemnifying Party shall pay to the Indemnified Party an amount in cash equal to the Indemnity Amount by wire transfer of immediately available

funds no later than ten Business Days following any final determination of the Indemnity Amount and the Indemnifying Party’s liability therefor. A “final determination” shall exist when (a) the parties to the dispute have reached an agreement in writing, (b) a court of competent jurisdiction shall have entered a final and nonappealable Order or judgment or (c) an arbitration or like panel shall have rendered a final nonappealable determination with respect to disputes the parties have agreed to submit thereto. Notwithstanding anything to the contrary contained herein, if an indemnity payment is to be made to Buyer hereunder for a Loss incurred by the Companies, then the amount to be paid to Buyer for such Loss will be reduced to take into account Seller’s ownership of Holdco.

Section 7.10. Characterization of Indemnification Payments. All payments made by an Indemnifying Party to an Indemnified Party in respect of any claim pursuant to Section 7.02 or 7.03 shall be treated as adjustments to the Purchase Consideration or, if applicable, as a direct or indirect member contribution of such amount by Seller to the Companies, for Tax purposes.

Section 7.11. Mitigation. Each Indemnified Party shall use its commercially reasonable efforts to mitigate any indemnifiable Loss.

Section 7.12. Remedies. Following the Closing, except (a) with respect to a claim to enforce this Article VII or (b) as may be otherwise contemplated by Sections 2.04, 9.01 or 9.11 or by the Confidentiality Agreement, the rights and remedies of Seller, the Companies and Buyer under this Article VII are exclusive and in lieu of any and all other rights and remedies which Seller, the Companies and Buyer may have under this Agreement or otherwise against each other with respect to the Transactions; provided, however, that for the avoidance of doubt, nothing in this Section 7.12 is intended to limit any rights the parties have under the Ancillary Agreements. No waiver by any Party hereto of any default, misrepresentation or breach of warranty or covenant hereunder, whether or not intentional, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent occurrence.

ARTICLE VIII

TERMINATION

Section 8.01. Termination. This Agreement may be terminated at any time prior to the Closing:

(a) by written agreement of Buyer and Seller;

(b) by either Buyer or Seller, by giving written notice of such termination to the other parties hereto, if the Closing shall not have occurred on or before April 30, 2010 (the “Termination Date”) so long as the terminating party is not in material breach of its obligations under this Agreement; provided, that in the event that the Closing has not occurred on or prior to the Termination Date solely as a result of a second request for information under the HSR Act, then the Termination Date shall be extended during the pendency of such second request to a date not later than June 30, 2010 and may thereafter be further extended by the mutual consent of the Parties;

(c) by Buyer or Seller if any state or federal court of competent jurisdiction or other state or federal Government Entity of competent jurisdiction shall have issued an Order or taken any other action permanently enjoining or otherwise prohibiting the consummation of the Transactions and such Order or other action shall have become final and nonappealable;

(d) by Seller, by giving written notice of such termination to Buyer, if there has been a material breach of the representations, warranties, covenants or agreements of Buyer contained in this Agreement which (i) would result in the failure of the condition set forth in Section 6.03(a) or Section 6.03(b) and (ii) cannot be cured prior to the Termination Date;

(e) by Seller, if events have occurred which have made it impossible to satisfy a condition precedent to Seller’s obligations to consummate the Transactions contemplated in this Agreement, unless Seller’s breach of this Agreement has prevented the condition from being satisfied;

(f) by Buyer, by giving written notice of such termination to Seller, in the event of a Seller Change of Control Event;

(g) by Buyer, by giving written notice of such termination to Seller, if there has been a material breach of the representations, warranties, covenants or agreements of Seller contained in this Agreement which (i) would result in the failure of the condition set forth in Section 6.02(a) or Section 6.02(b) and (ii) cannot be cured prior to the Termination Date; or

(h) by Buyer, if events have occurred which have made it impossible to satisfy a condition precedent to Buyer’s obligations to consummate the transactions contemplated in this Agreement, unless Buyer’s breach of this Agreement has prevented the condition from being satisfied.

Section 8.02. Effect of Termination. In the event of the termination of this Agreement in accordance with Section 8.01, this Agreement shall thereafter become void and have no effect, and no Party shall have any liability to any other Party or their respective Affiliates, or their respective directors, officers or employees, except for the obligations of the Parties hereto contained in Sections 5.11, 7.02(b), 7.03(b), this Section 8.02 and Article IX (and any related definitional provisions set forth in Article I), as applicable, and except that nothing in this Section 8.02 shall relieve any Party from liability for any breach of this Agreement that arose prior to such termination, for which liability the provisions of Article VII shall remain in effect in accordance with the provisions and limitations of such Article.

ARTICLE IX

MISCELLANEOUS

Section 9.01. Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the covenants or agreements (including Buyer’s obligation to effect the Closing) contained in this Agreement are not performed in accordance with their specific terms or are otherwise breached. Notwithstanding Section 9.11, it is accordingly agreed that the Parties shall be entitled to an injunction or injunctions without posting bond or proving damages to prevent

breaches of any covenants or agreements contained in this Agreement and to enforce specifically any terms and provisions of this Agreement, this being in addition to any other remedy to which such Party is entitled at law or in equity.

Section 9.02. Notices. All notices and communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended or delivered by registered or certified mail or nationally recognized overnight delivery service (return receipt requested), or if sent by facsimile or e-mail, provided that the facsimile or e-mail is promptly confirmed by telephone confirmation thereof, to the Person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such Person:


		If to Buyer:		Total System Services, Inc.
				One TSYS Way
				Post Office Box 1755
				Columbus, Georgia 31902
				Attention: G. Sanders Griffith, III
				Phone: (706) 649-2310

		With a copy to:		King & Spalding LLP
				1180 Peachtree Street
				Atlanta, Georgia 30309
				Attention: John J. Kelley, III
				Mark E. Thompson
				Phone: (404) 572-4600
				Facsimile: (404) 572-5100

		If to Seller:		First National Bank of Omaha
				First National Bank Tower, Stop 3400
				1620 Dodge Street
				Omaha, NE 68197
				Attention: Michael A. Summers
				Phone: (402) 633-3801
				Facsimile: (402) 342-4332

		and

				First National Bank of Omaha
				First National Bank Tower, Stop 3290
				1620 Dodge Street
				Omaha, NE 68197
				Attention: Legal Department
				Phone: (402) 602-3105
				Facsimile: (402) 342-4332

		With a copy to:		Mark A. Ellis
				Kutak Rock LLP


				1650 Farnam Street
				Omaha, NE 68102
				Phone: (402) 346-6000
				Facsimile: (402) 346-1148

		To any of the Companies:		Total System Services, Inc.
				One TSYS Way
				Post Office Box 1755
				Columbus, Georgia 31902
				Attention: G. Sanders Griffith, III
				Phone: (706) 649-2310

		With copies to:		King & Spalding LLP
				1180 Peachtree Street
				Atlanta, Georgia 30309
				Attention: John J. Kelley, III
				Mark E. Thompson
				Phone: (404) 572-4600
				Facsimile: (404) 572-5100
				First National Bank of Omaha

				First National Bank Tower, Stop 3400
				1620 Dodge Street
				Omaha, NE 68197
				Attention: Michael A. Summers
				Phone: (402) 633-3801
				Facsimile: (402) 342-4332

				First National Bank of Omaha
				First National Bank Tower, Stop 3290
				1620 Dodge Street
				Omaha, NE 68197
				Attention: Legal Department
				Phone: (402) 602-3105
				Facsimile: (402) 342-4332

				Mark A. Ellis
				Kutak Rock LLP
				1650 Farnam Street
				Omaha, NE 68102
				Phone: (402) 346-6000
				Facsimile: (402) 346-1148

Section 9.03. Amendment; Waiver. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by Buyer and Seller or, in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law except as otherwise specifically provided in Article VII.

Section 9.04. No Assignment or Benefit to Third Parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns. Subject to the provisions of Section 2.09, no Party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of each other Party (including, with respect to Seller, through merger, operation of Law or otherwise), except as provided in Section 9.06 and except that Buyer may assign any and all of its rights and delegate any of its obligations under this Agreement or any Ancillary Agreement to any Person that acquires Units from Buyer in accordance with the terms and conditions of the LLC Agreement (but no such assignment or delegation shall relieve Buyer of any of its obligations hereunder). Notwithstanding anything to the contrary contained herein, Buyer may assign its rights under this Agreement to a direct or indirect wholly-owned subsidiary (but no such assignment shall relieve Buyer of any of its obligations hereunder). Nothing in this Agreement, express or implied, is intended to confer upon any Person (including, without limitation, any employee of Seller, the Business, SPC or the Companies) other than Buyer, Seller, the Companies, the Indemnified Parties and their respective successors, legal representatives and permitted assigns any rights or remedies under or by reason of this Agreement.

Section 9.05. Entire Agreement. This Agreement (including all Schedules and Exhibits hereto), the Ancillary Agreements and the Confidentiality Agreement contain the entire understanding between the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. Except as may be specifically provided herein, there are no preconditions to the effectiveness of this Agreement.

Section 9.06. Fulfillment of Obligations. Any obligation of any Party to any other Party under this Agreement, or any of the Ancillary Agreements, which obligation is performed, satisfied or fulfilled completely by an Affiliate of such Party, shall be deemed to have been performed, satisfied or fulfilled by such Party.

Section 9.07. Public Disclosure. Notwithstanding anything to the contrary contained herein, from and after the date hereof, no press release or similar public announcement or communication shall be made or caused to be made relating to this Agreement or the Transactions unless specifically approved in advance by Seller and Buyer, except as may be required to comply with the requirements of any applicable Law and the rules and regulations of any stock exchange upon which the securities of one of the parties is listed (in which case a copy of such press release, announcement or communication shall be provided to the other parties hereto in advance, to the extent reasonably practicable).

Section 9.08. Expenses. Except as otherwise expressly provided in this Agreement or any Ancillary Agreement, whether or not the Transactions are consummated, all costs and expenses incurred in connection with this Agreement and the Transactions shall be borne by the Party incurring such costs and expenses; provided, however, that Buyer, on the one hand, and Seller, on the other hand, shall each be responsible for 50% of the filing fees payable in connection with any filings required by any Party under the HSR Act or other U.S. Antitrust Laws; provided, further, that Seller shall be responsible for all such costs and expenses incurred by the Companies on or prior to the Closing Date.

Section 9.09. Personal Liability. This Agreement shall not create or be deemed to create or permit any personal liability or obligation on the part of any stockholder, director, officer, employee, authorized representative or agent of Buyer.

Section 9.10. Schedules. The disclosure of any matter in any Schedule to Article III or Article IV, as applicable, shall be deemed to be a disclosure on all other Schedules to Article III or Article IV, respectively, to which such matter may reasonably apply so long as such disclosure is in sufficient detail to enable a reasonable person to identify the other Sections thereof to which such information is responsive.

Section 9.11. Dispute Resolution. Except for the resolution of matters addressed in Sections 2.04, 7.02 and 9.01 (which shall be resolved in accordance with the respective procedures set forth therein), any Arbitration Disputes shall be resolved as provided in this Section 9.11.

(a) Negotiation of Disputes.

(i) Any Party shall give the other Party written notice of any Arbitration Dispute setting forth a statement of such Party’s position and summary of the arguments supporting such position. The Parties shall attempt to resolve such Arbitration Dispute promptly by negotiation between the executive officers of the Parties who have authority to settle the Arbitration Dispute and their respective advisors.

(ii) Within thirty (30) days after delivery of the notice, the Party receiving the notice shall submit to the other a written response. The notice and response shall include a statement of each Party’s position and a summary of arguments supporting that position. Within thirty (30) days after delivery of the disputing Party’s notice, the executive officers of both Parties shall meet at a mutually acceptable time and place, and thereafter as often as they deem reasonably necessary, to attempt to resolve the Arbitration Dispute.

(b) Arbitration. If any such Arbitration Dispute has not been resolved by the Parties in accordance with Section 9.11(a) within forty-five (45) days of the disputing Party’s request notice, or if the Parties fail to meet within thirty (30) days of such request notice, then each of the Parties agrees that such Arbitration Dispute shall be finally and exclusively settled without appeal by arbitration in New York City, New York, administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect as of the date of the request for arbitration, which rules are deemed to be incorporated into this Section 9.11(b); provided, however,

that in the event of any conflict between such rules and the other provisions of this Agreement, such other provisions of this Agreement shall control. The arbitration shall be conducted before a panel of three (3) arbitrators. Each Party shall appoint one (1) arbitrator within thirty (30) days of receiving notice of the request for arbitration in accordance with the Commercial Arbitration Rules of the AAA. The two party-appointed arbitrators shall then attempt to appoint a third arbitrator who shall act as the chairman of the panel (the “Chairman”) within twenty (20) days of the appointment of the second arbitrator. If the Party-appointed arbitrators fail to agree on the Chairman within such period, the Chairman shall be appointed by the AAA upon the written request of either Party. The decision of the arbitrators shall be by majority vote, shall be in writing, shall set forth the facts found by the arbitrators to exist, their decision and the basis for that decision and shall be final and binding upon the parties and not subject to appeal. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof, including any court having jurisdiction over any of the Parties or their assets. Each Party shall bear its own costs and expenses in connection with the arbitration, including reasonable attorneys’ fees, disbursements, arbitration expense, arbitrators’ fees and the administrative fee of the AAA.

Section 9.12. Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury. This Agreement, and all claims or causes of action that may be based upon, or arise out of or relate to this Agreement or the negotiation, execution or performance hereof or thereof, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Subject to Section 9.11, each of the parties hereto irrevocably consents to the exclusive jurisdiction of and venue in any court located within the State of Delaware, in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING FROM OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.

Section 9.13. Counterparts. This Agreement may be executed by facsimile or other electronic delivery and in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.

Section 9.14. Headings. The heading references herein and the table of contents hereof are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof.

Section 9.15. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such

invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 9.16. Construction. The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any Party hereto by virtue of the authorship of any of the provisions of this Agreement.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties have executed or caused this Agreement to be executed as of the date first written above.


	FIRST NATIONAL BANK OF OMAHA
	By	/s/Michael Summers
		Michael A. Summers
		Chief Financial Officer

	TOTAL SYSTEM SERVICES, INC.
	By	/s/Troy Woods
		M. Troy Woods
		President and Chief Operating Officer

[Signature page to the Investment Agreement]

EX-10.2 3 g23272exv10w2.htm EX-10.2 exv10w2

Exhibit 10.2

ASSIGNMENT OF INVESTMENT AGREEMENT

Total System Services, Inc., a corporation organized under the laws of Georgia (“Assignor”), hereby transfers, conveys, and assigns all of its right, title and interest in and to that certain Investment Agreement, dated as of March 1, 2010, between Assignor and First National Bank of Omaha (as it may be amended or supplemented from time to time, the “Investment Agreement”), pursuant to Section 9.04 of the Investment Agreement, to Assignor’s wholly-owned subsidiary, Columbus Depot Equipment Company, a corporation organized under the laws of Georgia (“Assignee”). By its execution hereof, and as consideration for such assignment, Assignee agrees to assume all of the obligations and duties of Assignor set forth in the Investment Agreement pursuant to the terms thereof.

[Signature Page Follows]

WITNESS OUR HANDS AND SEAL this 1^st day of April, 2010.


ASSIGNOR:		ASSIGNEE:

TOTAL SYSTEM SERVICES, INC.		COLUMBUS DEPOT EQUIPMENT COMPANY

By: Name:	/s/ Troy Woods M. Troy Woods	By: Name:	/s/ Jim Lipham James B. Lipham
Title:	President and Chief Operating Officer	Title:	Chief Financial Officer

Signature Page to Assignment of Investment Agreement

EX-10.3 4 g23272exv10w3.htm EX-10.3 exv10w3

Exhibit 10.3

FNMS HOLDING, LLC,
a Delaware limited liability company

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

DATED AS OF APRIL 1, 2010

THE UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH UNITS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION THEREFROM.

THE UNITS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED HEREIN, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH UNITS UNTIL SUCH TRANSFER IS IN COMPLIANCE HEREWITH.

TABLE OF CONTENTS


ARTICLE I
DEFINITIONS

Section 1.01. Definitions			2
Section 1.02. Terms Generally			17
ARTICLE II
GENERAL PROVISIONS

Section 2.01. Formation			18
Section 2.02. Name			19
Section 2.03. Term			19
Section 2.04. Purpose; Powers			19
Section 2.05. Foreign Qualification			21
Section 2.06. Registered Office; Registered Agent; Principal Office; Other Offices			21
Section 2.07. No State-law Partnership			21

ARTICLE III
UNITS

Section 3.01. Authorized Units			21
Section 3.02. General			22
Section 3.03. Voting			22
Section 3.04. Preemptive Rights			22
Section 3.05. Units Held by New SPC			23
Section 3.06. Large Acquisition — Limitation on Rights, Powers and Privileges			23

ARTICLE IV
MANAGEMENT

Section 4.01. Board of Directors			23
Section 4.02. Meetings of the Members			33
Section 4.03. Chairperson			35
Section 4.04. Officers			35
Section 4.05. Management Matters			37
Section 4.06. Liability of Members			37
Section 4.07. Exculpation; Indemnification by the Company			38
Section 4.08. Participation by FNBO in Debt Financings			40
Section 4.09. Non-Competition; Acquisitions			40


Section 4.10. Preferred Providers			45

ARTICLE V
CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS

Section 5.01. Capital Account Creation			45
Section 5.02. Capital Account Negative Balance			46
Section 5.03. Allocations of Net Income and Net Loss			46
Section 5.04. Distributions			51
Section 5.05. Capital Contributions			52

ARTICLE VI
WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS

Section 6.01. Member Withdrawal			52
Section 6.02. Dissolution			53
Section 6.03. Transfer by Members			54
Section 6.04. Transfers and Other Actions in Connection With Public Offering			65
Section 6.05. Admission or Substitution of New Members			66
Section 6.06. TSYS as Public Company			66

ARTICLE VII
REPORTS TO MEMBERS; TAX MATTERS

Section 7.01. Books of Account			67
Section 7.02. Reports			67
Section 7.03. Fiscal Year			68
Section 7.04. Independent Auditor			68
Section 7.05. Certain Tax Matters			68

ARTICLE VIII
MISCELLANEOUS

Section 8.01. Exhibits			71
Section 8.02. Governing Law; Severability; Selection of Forum; Waiver of Trial by Jury			71
Section 8.03. Dispute Resolution			73
Section 8.04. Successors and Assigns; No Third-person Beneficiaries			73
Section 8.05. Confidentiality			73
Section 8.06. Amendments			74
Section 8.07. Notices			74


Section 8.08. Counterparts			74
Section 8.09. Power of Attorney			75
Section 8.10. Entire Agreement			75
Section 8.11. Guarantee			75

Schedule I Members
Schedule II Restricted Transferees of Units
Exhibit A Business Plan
Exhibit B Directors, Chairperson, Officers

iii

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time to time in accordance with its terms, this “Agreement”) of FNMS HOLDING, LLC, a Delaware limited liability company (the “Company”), is made effective as of the date first written above (the “Effective Date”) by and between Columbus Depot Equipment Company, a corporation organized under the laws of the State of Georgia (“CDEC”), First National Bank of Omaha, a national banking association chartered under the laws of the United States (“FNBO”), FN Merchant Partners, Inc., a Delaware corporation (“New SPC”), the Company and each other Person who at any time after the Effective Date becomes a Member in accordance with the terms of this Agreement and the Act.

Any reference in this Agreement to CDEC, FNBO, New SPC or any other Member shall be deemed to include such Member’s Successors in Interest to the extent such Successors in Interest have become Substitute Members in accordance with the provisions of this Agreement.

All capitalized terms used in this Agreement are defined in Article I.

RECITALS

WHEREAS, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act, Title 6, Sections 18-101 et seq. (as amended from time to time, the “Act”), by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware on February 24, 2010 (the “Filing Date”);

WHEREAS, FNBO and New SPC, as the then-Members of the Company, set forth certain agreements governing the relations among the members in a Limited Liability Company Agreement dated as of February 24, 2010 (as amended to date, the “Original Agreement”);

WHEREAS, in connection with CDEC’s purchase of 51 Class A Units, representing 51% of the Units, from FNBO pursuant to the terms, and subject to the conditions of, that certain Investment Agreement, dated as of March 1, 2010 by and among FNBO and Total System Services, Inc., a corporation organized under the laws of the State of Georgia and direct parent of CDEC (“TSYS”) (as it may be amended or supplemented from time to time, the “Investment Agreement”), concurrently with the Closing (as defined in the Investment Agreement), the Members wish to amend and restate the Original Agreement by entering into this Agreement; and

WHEREAS, as of the Effective Date, the Company is operating the Business indirectly through First National Merchants Solutions, LLC, a Delaware limited liability company and wholly-owned subsidiary of the Company (“Opco”), in accordance with its Limited Liability Company Agreement (the “Opco LLC Agreement”) pursuant to which the Company is the sole member of Opco and governs Opco as a member pursuant to the provisions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, the sufficiency of which is hereby acknowledged, the parties agree that the Original Agreement is hereby amended and restated in its entirety as follows:

ARTICLE I

DEFINITIONS

Section 1.01. Definitions. The following terms shall have the following meanings for purposes of this Agreement:

“AAA” has the meaning set forth in Section 8.03(b).

“Act” has the meaning set forth in the recitals above.

“Additional Member” means any Person that has been admitted to the Company as a Member pursuant to Section 6.05 by virtue of having received its Membership Interest from the Company and not from any other Member or Assignee.

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments:

(a) Credit to such Capital Account any amounts which such Member is obligated to restore pursuant to any provision of this Agreement or is deemed obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

(b) Debit to such Capital Account the items described in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6).

The foregoing definition of “Adjusted Capital Account Deficit” is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted and applied by the Board of Directors consistently therewith.

“Affiliate” means, with respect to any Person, any other Person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such Person.

“Agent Banks” has the meaning set forth in the Investment Agreement.

“Agreement” has the meaning set forth in the preamble above.

“Ancillary Agreement” has the meaning set forth in the Investment Agreement.

“Arbitration Dispute” means all disputes arising out of or relating to this Agreement or the breach, termination, or validity thereof, or the Parties’ performance, involving amounts less than One Million Dollars ($1,000,000.00) and excluding any claims for fraud, intentional misrepresentation or an intentional and knowing breach of a covenant set forth in this Agreement.

“Assignee” means any transferee to which a Member or another Assignee has transferred its Economic Interest in the Company in accordance with the terms of this Agreement but who is not a Member.

“Bankruptcy” means, with respect to any Person, the occurrence of any of the following events: (a) the filing of an application by such Person for, or a consent to, the appointment of a trustee or custodian of its assets; (b) the filing by such Person of a voluntary petition in bankruptcy or the seeking of relief under Title 11 of the United States Code, as now constituted or hereafter amended, or the filing of a pleading in any court of record admitting in writing its inability to pay its debts as they become due; (c) the making by such Person of a general assignment for the benefit of creditors; (d) the filing by such Person of an answer admitting the material allegations of, or its consenting to, or defaulting in answering, a bankruptcy petition filed against it in any bankruptcy proceeding or petition seeking relief under Title 11 of the United States Code, as now constituted or as hereafter amended; or (e) the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating such Person a bankrupt or insolvent or for relief in respect of such Person or appointing a trustee or custodian of its assets and the continuance of such order, judgment or decree unstayed and in effect for a period of 90 consecutive days.

“Board of Directors” has the meaning set forth in Section 4.01(a).

“Board Supermajority” has the meaning set forth in Section 4.01(h).

“Book Item” has the meaning set forth in Section 5.03(d)(i)(A).

“Business” has the meaning set forth in the Investment Agreement.

“Business Day” means any day of the year other than a Saturday, a Sunday or any other day on which national or state banking institutions in Omaha, Nebraska or Columbus, Georgia are required or authorized by Law to close.

“Business Plan” means initially the initial business plan attached as Exhibit A and, thereafter, each business plan as is approved by the Board of Directors in accordance with Section 4.01(i) and Section 4.01(h)(vi), by which the business affairs of the Company and the Subsidiaries shall be conducted and which, for any year, shall include, among other things, (a) the Company’s and the Subsidiaries’ business strategy and organizational structure, (b) basic goals, (c) parameters of the Company’s and the Subsidiaries’ business purpose, (d) projected revenues, expenses (including compensation packages for any executive officers), financing plans and limitations on the incurrence of indebtedness, cash flows, the number and aggregate amount of grants for that year to executive officers under an equity based compensation plans of the Company, if any, (e) appointment of agents or advisers, (f) strategic alliances of the Company and the Subsidiaries, (g) potential acquisitions and dispositions, (h) an annual operating budget (including operating projections of the Company and the Subsidiaries covering not less than the next three succeeding fiscal years) and (i) an annual capital budget (including the projected capital expenditures of the Company covering not less than the next fiscal year).

“Buy/Sell Closing Date” has the meaning set forth in Section 6.03(g)(ii)(H).

“Buy/Sell Price” has the meaning set forth in Section 6.03(g)(ii)(A).

“Buy/Sell Provisions” has the meaning set forth in Section 6.03(g)(ii).

“Capital Account” means, with respect to any Member, the Capital Account maintained for such Member in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited such Member’s Capital Contribution, such Member’s distributive share of Net Income and any item in the nature of income or gain which is specially allocated to such Member pursuant to Section 5.03(c), and the amount of any Company liabilities assumed by such Member or which are secured by any property distributed to such Member;

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, such Member’s distributive share of Net Loss and any item in the nature of expense or loss which is specially allocated to such Member pursuant to Section 5.03(c), and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company;

(c) In the event all or a portion of an interest in the Company is Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent that it relates to the transferred interest; and

(d) In determining the amount of any liability for purposes of subparagraphs (a) and (b) in this definition and Section 5.03(b), there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and Regulations.

The foregoing definition and other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Code Section 704(b) and the Regulations promulgated thereunder and shall be interpreted and applied by the Board of Directors and the Company in a manner consistent with such Regulations.

“Capital Call” has the meaning set forth in Section 5.05.

“Capital Contribution” means, with respect to any Person, the amount of cash and the initial Gross Asset Value of any property (other than money) contributed to the Company or any Subsidiary by such Person (or its predecessors in interest) in respect of a Membership Interest. If any Member pays any amount which gives rise to a tax deduction of the Company, such payment shall be treated as a Capital Contribution by the Member.

“Card Association” has the meaning given thereto in the Investment Agreement.

“CDEC” has the meaning set forth in the preamble above.

“CDEC Call Right” has the meaning set forth in Section 4.09(d).

“CDEC Call Notice” has the meaning set forth in Section 4.09(d).

“CDEC Large Acquisition Notice” has the meaning set forth in Section 4.09(c).

“Certificate” has the meaning set forth in Section 2.01.

“Chairman” has the meaning set forth in Section 8.03(b).

“Chairperson” has the meaning set forth in Section 4.03.

“Change of Control” means any (a) merger, consolidation or other business combination of the Company (or any Subsidiary or Subsidiaries that alone or together represent all or substantially all of the Company’s consolidated business at that time) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries that results in the Members (or their Affiliates) immediately before the consummation of such transaction, or a series of related transactions, holding, directly or indirectly, less than 50% of the voting power of the Company (or such Subsidiary or Subsidiaries) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries or the surviving entity thereof, as applicable, immediately following the consummation of such transaction or series of related transactions, (b) Transfer, in one or a series of related transactions, of Units representing 50% or more of the voting power of the Company (or such Subsidiary or Subsidiaries) or any successor or other entity owning or holding substantially all the assets of the Company and its Subsidiaries to a Person or group of related Persons (other than CDEC and FNBO and their respective Affiliates), (c) transaction in which a majority of the Board of Directors following such transaction is comprised of Persons who are not designees of CDEC, FNBO or their respective Affiliates or (d) sale or other disposition in one or a series of related transactions of all or substantially all of the assets of the Company and the Subsidiaries.

“Chief Financial Officer” has the meaning set forth in Section 4.04(e).

“Chosen Courts” has the meaning set forth in Section 8.02.

“Class A Director” has the meaning set forth in Section 4.01(d)(i)(A).

“Class A Units” has the meaning set forth in Section 3.01.

“Class B Director” has the meaning set forth in Section 4.01(d)(i)(B).

“Class B Units” has the meaning set forth in Section 3.01.

“Class C Units” has the meaning set forth in Section 3.01.

“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.

“Commission” means the Securities and Exchange Commission and any successor thereto.

“Company” has the meaning set forth in the preamble above.

“Company Minimum Gain” has the same meaning as “partnership minimum gain” set forth in Regulations Sections 1.704-2(b)(2) and 1.704-2(d).

“Company Price” has the meaning set forth in Section 6.03(g)(ii)(A).

“Control” means, with respect to any Person, the beneficial ownership of more than 50% of the voting equity of such entity or the right, directly or indirectly, by contract or otherwise, to appoint at least a majority of the board of directors (or comparable governing body) of such Person.

“Covered Claim” has the meaning set forth in Section 4.07(a).

“Covered Person” has the meaning set forth in Section 4.07(a).

“Covered Proceeding” has the meaning set forth in Section 4.07(b).

“Deadlock” has the meaning set forth in Section 6.03(g)(i).

“Depreciation” means, for each fiscal year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such fiscal year or other period, except that (a) if the Gross Asset Value of an asset acquired from any Person other than FNBO or New SPC differs from its adjusted basis for federal income tax purposes at the beginning of such fiscal year or other period, and which difference is being eliminated by use of the “remedial allocation method” defined by Regulations Section 1.704-3(d), Depreciation for such fiscal year or other period shall be the amount of book basis recovered for such fiscal year or other period under the rules prescribed by Regulations Section 1.704-3(d)(2), and (b) with respect to any other asset whose Gross Asset Value differs from its adjusted basis for federal income tax purposes at the beginning of such fiscal year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that, in the case of clause (b) above, if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be calculated with reference to such beginning Gross Asset Value using any reasonable method selected by the Board of Directors.

“Depreciation Recapture” has the meaning set forth in Section 5.03(d)(i)(B)(2).

“Director” has the meaning set forth in Section 4.01(a).

“Distributions” has the meaning set forth in Section 5.04(c).

“Drag Along Member” has the meaning set forth in Section 6.03(e)(i).

“Drag Along Notice” has the meaning set forth in Section 6.03(e)(i).

“Drag Along Rights” has the meaning set forth in Section 6.03(e)(i).

“Drag Along Sale” has the meaning set forth in Section 6.03(e)(i).

“EBITDA” means, for purposes of Section 4.01(h)(xii) only, the sum of net income (or loss) for such period of the Company plus all amounts deducted in the computation thereof on account of (in each case, without duplication) (a) interest expense (net of any interest income), (b) federal, state and local income and franchise tax expenses, (c) depreciation and amortization expenses and (d) loss from extraordinary items minus any income items deemed to be non-recurring.

“Economic Interest” means a Member’s or Assignee’s share of the Company’s Net Income, Net Loss and distributions pursuant to this Agreement, but shall not include any right to participate in the management or affairs of the Company, including the right to vote in the election of Directors, vote on, consent to, or otherwise participate in, any decision of the Members or Directors, or any right to receive information concerning the business and affairs of the Company, in each case except as expressly otherwise provided in this Agreement.

“Effective Date” has the meaning set forth in the preamble above.

“Enterprise Value” means (i)(a) in the case of a transaction involving the capital stock of a Person, the total fair market value of all consideration paid or payable, or otherwise to be distributed, directly or indirectly, in respect of such capital stock in connection with the transaction multiplied by the total number of shares outstanding on a fully diluted basis and (b) in the case of a transaction involving assets, the total fair market value of all consideration paid or payable, or otherwise to be distributed, directly or indirectly, to the Person or its equity holders in connection with the transaction plus the value of any current assets not sold, plus (ii) the amount of all indebtedness, preferred securities, capital leases and minority interest (if applicable) immediately prior to the closing or directly or indirectly assumed, retired, repaid, redeemed or defeased in connection with the transaction, less (iii) cash and cash equivalents, which Enterprise Value is used by CDEC or its Affiliates or Company (as applicable) in calculating the purchase price for the relevant transaction. For purposes of this definition, consideration includes cash, securities, property, rights (contractual or otherwise), any distributions payable after the date thereof (other than normal, ordinary course, recurring distributions) and any other form of consideration.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

“Exempt Securities” means (a) New Securities issued as a pro rata Distribution to Members; (b) New Securities issued in connection with a Qualifying Acquisition or a Large Acquisition, but only to the extent that such New Securities are issued at a price at least equal to or greater than Fair Market Value; (c) New Securities issued for reasons other than those described in clauses (a) and (b), but only to the extent that (i) such New Securities are issued at an amount equal to or greater than Fair Market Value, (ii) the number of all New Securities issued under this clause (c) does not exceed 10% of the total number of Units held by all Members as of the date of issuance of such New Securities, (iii) the Preemptive Rights of all Members with respect to such issuance are waived by the Board of Directors (which, prior to a

Trigger Event, shall include approval by at least one of the Class B Directors) and (iv) no Members participate in such issuances; and (d) New Securities incident to the exercise, conversion or exchange of any Exempt Securities or any New Securities for which Preemptive Rights have been provided pursuant to Section 3.04.

“Expenses” has the meaning set forth in Section 4.07(a).

“Fair Market Value” means, with respect to any asset or security, the fair market value of such asset or security as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arm’s-length transaction occurring on the date of the valuation, taking into account all relevant factors, as reasonably determined in good faith by the Board of Directors as of the time of issuance or the entry into the transaction, it being understood that, (a) with respect to a security that is listed on a national securities exchange or quoted on NASDAQ, “Fair Market Value” shall mean the average of the closing prices of such security over the 30-day period ending one Business Day prior to the date of measurement and (b) with respect to a security that is traded over-the-counter, “Fair Market Value” shall mean the average of the closing bid prices over the 30-day period ending one Business Day prior to the date of measurement.

“Filing Date” has the meaning set forth in the recitals above.

“FNBO” has the meaning set forth in the preamble above.

“FNBO Bankruptcy Event” has the meaning set forth in the definition of Trigger Event.

“FNBO Capital Contribution Notice” has the meaning set forth in Section 4.09(b)(ii).

“FNBO Change of Control” has the meaning set forth in the definition of Trigger Event.

“FNBO Put Notice” has the meaning set forth in Section 4.09(e).

“FNBO Put Right” has the meaning set forth in Section 4.09(e).

“GAAP” has the meaning set forth in Section 7.01.

“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset on the date of the contribution, as reasonably determined by the Board of Directors.

(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as reasonably determined by the Board of Directors, as of the following times:

(i) the acquisition of an additional Membership Interest in the Company after the date of this Agreement by an existing Member or Additional Member in exchange for more than a de minimis Capital Contribution if the Board of Directors reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(ii) the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for a Membership Interest in the Company if the Board of Directors reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);

(iv) the grant of an interest in the Company (other than a de minimis interest) as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a Member capacity, or by an Additional Member acting in a Member capacity or in anticipation of being a Member if the Board of Directors reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company; and

(v) such other times as the Board of Directors shall reasonably determine necessary or advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2.

(c) The Gross Asset Value of any Company asset distributed to a Member shall be the gross fair market value of such asset on the date of distribution, as reasonably determined by the Board of Directors.

(d) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent that the Board of Directors reasonably determines that an adjustment pursuant to subparagraph (b) of this definition of Gross Asset Value is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d).

(e) The Gross Asset Value of a Company asset shall be adjusted by the Depreciation, if any, taken into account by the Company with respect to computing Net Income or Net Loss.

“Independent Sales Organizations” has the meaning set forth in the Investment Agreement.

“Initiating Member” has the meaning set forth in Section 6.03(e)(i).

“Investment Agreement” has the meaning set forth in the recitals above.

“IPO” means the first registered, public offering of (a) Units, (b) the common stock or other equity securities for which the Units have been converted or exchanged of a successor corporation or other entity into which the Company is converted or merged, (c) the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the holders of Units for the purpose of offering securities to the public that are issued or issuable for the Units, or the rights to receive, or the securities that are convertible into, or exchangeable or exercisable for, the common stock or other equity securities of a corporation or other entity otherwise formed by the Company or the holders of Units for the purpose of offering securities to the public that are issued or issuable for the Units, (d) the common stock or other equity securities of a Parent, a Subsidiary or other entity to which the assets of the Company and/or the Subsidiaries have been transferred, in each case whose securities the Company has determined to offer to the public and that are issued or issuable for the Units (which for the avoidance of doubt excludes the common stock of TSYS and CDEC), or (e) the Units for which such Units are exchangeable, in each case of clauses (a) through (d), for cash pursuant to an effective registration statement under the Securities Act, registered on Form S-1 (or any successor form), in which such Units or securities are sold to one or more underwriters on a firm-commitment basis for reoffering to the public.

“IRS” means the United States Internal Revenue Service.

“Issuance Threshold” has the meaning set forth in Section 4.01(h)(xii).

“Large Acquisition” has the meaning set forth in Section 4.09(c).

“Lauritzen Group” means Lauritzen Corporation and its Affiliates and Bruce R. Lauritzen, including his mother, siblings and children.

“Liquidator” has the meaning set forth in Section 6.02(b).

“MasterCard” means MasterCard International, Inc.

“Member” means CDEC, FNBO and New SPC and each other Person who is hereafter admitted as a Member in accordance with the terms of this Agreement, including an Additional Member and a Substitute Member, but only to the extent such Person has not ceased to be a Member pursuant to Section 6.01. The Members shall comprise the “members” (as that term is defined and used in the Act) of the Company.

“Member Nonrecourse Debt” has the same meaning as the term “partner nonrecourse debt” set forth in Regulations Section 1.704-2(b)(4).

“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Regulations Section 1.704-2(i)(3).

“Member Nonrecourse Deductions” has the same meaning as the term “partner nonrecourse deductions” set forth in Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).

“Membership Interest” means a Member’s entire ownership interest in the Company at the relevant time, including its Economic Interest, Units and rights as a Member.

“Merchant Customer” has the meaning set forth in the Investment Agreement.

“Net Income” and “Net Loss” means, for each fiscal year or other period, an amount equal to the Company’s taxable income or loss for such fiscal year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss) with the following adjustments:

(a) any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be added to such income or loss;

(b) any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be subtracted from such taxable income or loss;

(c) in the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (b) or (c) of the definition of Gross Asset Value in this Agreement, the amount of such adjustment shall be taken into account as gain (if the adjustment increases the Gross Asset Value of the asset) or loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset for purposes of computing Net Income or Net Loss;

(d) gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;

(e) in lieu of depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such fiscal year;

(f) to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss; and

(g) any items which are specially allocated pursuant to the provisions of Section 5.03(c) shall not be taken into account in computing Net Income or Net Loss.

“New Activity” has the meaning set forth in Section 2.04(b)(i).

“New Activity Notice” has the meaning set forth in Section 2.04(b)(i).

“New Securities” means (a) any Units, whether or not currently authorized, or (b) any rights, options or warrants to purchase Units (or nonequity securities that are convertible into or exchangeable for Units), and nonequity securities of any type whatsoever that are, or may become convertible into, or exchangeable for, Units, in any case, whether issued on or after the Effective Date, it being understood that the only equity interest in the Company shall be in the form of Units.

“New SPC” has the meaning set forth in the preamble above.

“Non-Qualified IPO” means an IPO generating pretax aggregate proceeds (including, for purposes of calculating the amount of such proceeds, the aggregate amount of any Distributions made to the holders of Units to and until the date of the IPO), before deducting underwriting commissions, equal to or less than $50,000,000.

“Nonrecourse Deductions” has the meaning set forth in Regulations Section 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning set forth in Regulations Section 1.752-1(a)(2).

“Offered Units” has the meaning set forth in Section 6.03(c)(i).

“Officer” means each Person designated as an officer of the Company or of any Subsidiary pursuant to and in accordance with the provisions of Section 4.04, subject to the terms of any resolution of the Board of Directors appointing such Person as an officer or relating to such appointment.

“Opco” has the meaning set forth in the recitals above.

“Opco LLC Agreement” has the meaning set forth in the recitals above.

“Order” means any order, injunction, judgment, decree, writ or other enforcement action of a Government Entity.

“Original Agreement” has the meaning set forth in the recitals above.

“Original Holder” means any of CDEC, FNBO and New SPC.

“Parent” means, with respect to any Person, a Person that has control of such Person.

“Participating Tag-Along Offeree” has the meaning set forth in Section 6.03(d)(iii).

“Party” means any of CDEC, FNBO and the Company, and “Parties” means, collectively, each of CDEC, FNBO and the Company.

“Permitted Affiliate” has the meaning set forth in Section 6.03(a)(vii).

“Permitted Business Activities” has the meaning set forth in Section 4.09(a).

“Permitted Transfer” has the meaning set forth in 6.03(a)(vii).

“Permitted ROFR Transfer” has the meaning set forth in Section 6.03(c)(iv).

“Person” means an individual, a corporation, a partnership, an association, a limited liability company, a joint venture, a Government Entity, a trust or other entity or organization.

“Preemptive Rights” has the meaning set forth in Section 3.04(a).

“Preemptive Rights Notice” has the meaning set forth in Section 3.04(b).

“Preferred Option” has the meaning set forth in Section 6.03(g)(ii)(D).

“President” has the meaning set forth in Section 4.04(d).

“Pro Rata Portion” (a) of a Member for purposes of determining such Member’s relative Preemptive Rights shall mean a fraction the numerator of which is the number of Units held by such Member and the denominator of which is the total number of Units held by all Members; (b) of a ROFR Offeree for purposes of determining such ROFR Offeree’s relative ROFR Rights shall mean a fraction the numerator of which is the number of Units owned by such ROFR Offeree and the denominator of which is the total number of Units then held by all Members (other than the Offered Units and Units held by the Transferring Member); (c) of a Tag-Along

Offeree for purposes of determining such Tag-Along Offeree’s relative Tag-Along Rights shall mean a fraction the numerator of which is the total number of Tag-Along Units and the denominator of which is the total number of Units owned by the Transferring Member, provided that, in the event that the Tag-Along Purchaser is unwilling or unable, pursuant to Section 6.03(d)(iii) or (vi), to acquire all Units proposed to be included in a Tag-Along Sale, then the “Pro Rata Portion” of the Transferring Member or any Participating Tag-Along Offeree for purposes of determining the Transferring Member’s or such Participating Tag-Along Offeree’s relative Tag-Along Rights shall mean a fraction the numerator of which is the total number of Units held by the Transferring Member or such Participating Tag-Along Offeree, as applicable, and the denominator of which is the aggregate number of Units owned by the Transferring Member and all Participating Tag-Along Offerees; and (d) of a Drag Along Member for purposes of determining such Drag Along Member’s relative obligations upon any exercise of the Drag Along Rights shall mean a fraction the numerator of which is the number of Units being Transferred by the Initiating Member in the proposed Drag Along Sale and the denominator of which is the total number of Units owned by the Initiating Member, it being understood that, in the case of each of clauses (a) through (d), the time of determination of Units held shall be as of immediately before the proposed issuance or Transfer to which such rights or obligations relate. For purposes of this definition, the number of Units held by each Member and their respective Affiliates shall be aggregated as a single member.

“Proceeding” has the meaning set forth in Section 4.07(b).

“Projected Closing Date” has the meaning set forth in Section 4.09(c).

“Proposed Offer” has the meaning set forth in Section 6.03(c)(ii).

“Proposed Transferee” has the meaning set forth in Section 6.03(c)(iv).

“Purchasing Party” has the meaning set forth in Section 6.03(g)(ii)(A).

“Qualifying Acquisition” has the meaning set forth in Section 4.09(b)(i).

“Quarterly Distributions” has the meaning set forth in Section 5.04.

“Quarterly Estimated Tax Liability with respect to the Company’s Income” has the meaning set forth in Section 5.04(a).

“Registration Rights Agreement” means the Registration Rights Agreement by and among the Company, CDEC, New SPC and FNBO, dated as of the Effective Date, as amended from time to time in accordance with its terms.

“Regulations” means the Income Tax Regulations, including temporary Regulations, promulgated under the Code, as such Regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“Regulatory Allocations” has the meaning set forth in Section 5.03(c)(i)(F).

“Regulatory Approval” has the meaning set forth in Section 2.04(b)(i).

“Release Requirements” has the meaning set forth in Section 6.03(g)(ii)(C).

“Requesting Party” has the meaning set forth in Section 6.03(g)(ii).

“Rescheduled Board of Directors Meeting” has the meaning set forth in Section 4.01(f)(vi)(B).

“Rescheduled Committee Meeting” has the meaning set forth in Section 4.01(k)(ii)(C).

“Rescheduled Member Meeting” has the meaning set forth in Section 4.02(b)(iii).

“Responding Party” has the meaning set forth in Section 6.03(g)(ii).

“Responding Party Notice” has the meaning set forth in Section 6.03(g)(ii)(D).

“Rights of First Refusal” has the meaning set forth in Section 6.03(c)(ii).

“Right of First Purchase” has the meaning set forth in Section 6.03(b)(i).

“ROFR Notice” has the meaning set forth in Section 6.03(c)(i).

“ROFR Offeree” has the meaning set forth in Section 6.03(c)(i).

“ROFR Offer Period” has the meaning set forth in Section 6.03(c)(ii).

“ROFR Rights” has the meaning set forth in the definition of Pro Rata Portion.

“ROFP CDEC Notice” has the meaning set forth in Section 6.03(b)(i).

“ROFP FNBO Notice” has the meaning set forth in Section 6.03(b)(i).

“Sale of the Company” has the meaning set forth in Section 6.03(b).

“Secretary” has the meaning set forth in Section 4.04(g)(i).

“Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time.

“Self-Regulatory Organization” means the Financial Industry Regulatory Authority, the American Stock Exchange, the National Futures Association, the Chicago Board of Directors of Trade, the New York Stock Exchange, any national securities exchange (as defined in the Exchange Act), any other securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization.

“Selling Party” has the meaning set forth in Section 6.03(g)(ii)(A).

“Sponsorship Agreements” has the meaning set forth in the Investment Agreement.

“Subsidiary” means any Person of which (a) a majority of the outstanding share capital, voting securities or other equity interests are owned, directly or indirectly, by the Company and/or any other Subsidiary or (b) the Company and/or any other Subsidiary is entitled, directly or indirectly, to appoint a majority of the board of directors or comparable body of such Person.

“Substitute Member” means any Person that has been admitted to the Company as a Member pursuant to Section 6.05 by virtue of such Person receiving all or a portion of a Membership Interest from a Member or an Assignee and not from the Company.

“Successor in Interest” means any (a) trustee, custodian, receiver or other Person acting in any Bankruptcy or reorganization proceeding with respect to, (b) assignee for the benefit of the creditors of, (c) trustee or receiver, or current or former officer, director, manager or partner, or other fiduciary acting for, or with respect to, the dissolution, liquidation or termination of or (d) other executor, administrator, committee, legal representative or other successor or assign of, any Member, whether by operation of Law or otherwise.

“Tag-Along Notice” has the meaning set forth in Section 6.03(d)(i).

“Tag-Along Notice Deadline” has the meaning set forth in Section 6.03(d)(ii).

“Tag-Along Offeree” has the meaning set forth in Section 6.03(d)(i).

“Tag-Along Purchaser” has the meaning set forth in Section 6.03(d)(i).

“Tag-Along Rights” has the meaning set forth in Section 6.03(d)(ii).

“Tag-Along Sale” has the meaning set forth in the definition of Pro Rata Portion.

“Tag-Along Units” has the meaning set forth in Section 6.03(d)(i).

“Tax-Free Basis” has the meaning set forth in Section 6.04(b).

“Tax Matters Member” has the meaning set forth in Section 7.05(c).

“Third Party Referral Providers” has the meaning set forth in the Investment Agreement.

“Transfer” means, with respect to any Units, (a) when used as a verb, to sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise transfer such Units or any participation or interest therein, whether directly or indirectly, or to agree or commit to do any of the foregoing and (b) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, encumbrance, hypothecation or other transfer of such Units or any participation or interest therein, or any agreement or commitment to do any of the foregoing, including in each case through the Transfer of any Person holding such Units or any interest in such Person, it being understood that a Transfer of a controlling interest in any Person holding such Units shall be deemed to be a Transfer of all of the Units held by such Person. Notwithstanding anything to the contrary in this Agreement, no Transfer of an interest in any Person which is a public company shall be deemed to constitute a Transfer of any Units held by such Original Holder.

“Transferring Member” has the meaning set forth in Section 6.03(c)(i).

“Trigger Event” means the earliest to occur of any of the following: (a) FNBO (together with its Affiliates) shall have Transferred (other than pursuant to obligations upon the exercise by another Member of any Drag Along Rights) Units constituting at least 50% of the Units that FNBO (together with its Affiliates) owns as of the Effective Date; (b) the date as of which CDEC (together with its Affiliates) holds Units representing 70% or more of the outstanding Units; (c) any person acquires Control of FNBO or its direct Parent (an “FNBO Change of Control”; (d) FNBO or its direct Parent goes into Bankruptcy, receivership or conservatorship or any similar event (each, a “FNBO Bankruptcy Event”); or (e) a material default by FNBO or any of its Affiliates under any Ancillary Agreement where the default is not cured pursuant to the cure provisions of the relevant Ancillary Agreement; provided, however, if there are no cure provisions in the Ancillary Agreement relevant to such default, the default will not constitute a Trigger Event (i) if such default is not capable of being cured with the payment of money to CDEC, and FNBO or its Affiliates, as applicable, are diligently taking action to cure such default and such default is cured within sixty (60) days of written notice of the default or (ii) if such default is capable of being cured with the payment of money, and the payment is made within thirty (30) days following written notice of the default. Notwithstanding any other provision of this Agreement, the acquisition of Control of FNBO or its direct Parent by a member of the Lauritzen Group shall not constitute a Trigger Event.

“Triggering Notice” has the meaning set forth in Section 6.03(g)(ii)(A).

“TSYS” has the meaning set forth in the recitals above.

“TSYS Change of Control Event” has the meaning set forth in Section 6.06.

“Unit Value” has the meanings set forth in Section 4.09(f)(i), Section 6.03(b)(ii) and Section 6.03(f)(ii), as applicable.

“Units” has the meaning set forth in Section 3.01.

“U.S.” or “United States” means the fifty (50) States of the United States and the District of Columbia.

“Visa” means VISA Inc.

Section 1.02. Terms Generally.

(a) Numbers. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined.

(b) Gender. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.

(c) Including. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”

(d) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day.

(e) Dollars. Any reference in this Agreement to “dollars” or “$” shall mean the lawful currency of the United States of America.

(f) Holdings. For purposes of calculating ownership percentages and determining whether certain ownership thresholds are met under Sections 6.03(c)(i), 6.03(d)(i) and 6.03(e)(i), the total number of Units owned by any Member shall be aggregated with the number of Units owned by such Member’s Affiliates, without duplication.

(g) Headings. The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references to “Sections” and “Articles” shall refer to Sections and Articles of this Agreement unless otherwise specified.

(h) Exhibits. The exhibits to this Agreement are hereby incorporated and made a part of this Agreement and are an integral part of this Agreement. All exhibits annexed hereto or referred to in this Agreement are hereby incorporated in and made a part of this Agreement as if set forth in full in this Agreement. Any capitalized terms used in any exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

(i) Negotiation. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

ARTICLE II

GENERAL PROVISIONS

Section 2.01. Formation. The Company was organized as a Delaware limited liability company by the execution and filing of a Certificate of Formation on the Filing Date with the Secretary of State of the State of Delaware (as amended from time to time, the “Certificate”) under and pursuant to the Act. The rights, powers, duties, obligations and liabilities of the Members shall be determined pursuant to the Act and this Agreement. To the extent that the rights, powers, duties, obligations and liabilities of any Member are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Act, control.

Section 2.02. Name. The name of the Company is “FNMS Holding, LLC” and all Company business shall be conducted in that name or in such other names that comply with applicable Law as the Board of Directors may select from time to time.

Section 2.03. Term. The term of the Company commenced on the Filing Date and shall continue in existence perpetually until termination or dissolution in accordance with the provisions of Section 6.02.

Section 2.04. Purpose; Powers.

(a) General Powers. The nature of the business or purposes to be conducted or promoted by the Company is to operate the Business and, subject to the terms of this Agreement and the Business Plan, to engage in any act or activity which may be lawfully conducted by a limited liability company under the Act and the Laws of any other jurisdictions in which the Company engages in such activities. The Company may engage in any and all activities necessary, desirable or incidental to the accomplishment of the foregoing. Notwithstanding anything in this Agreement to the contrary, nothing set forth in this Agreement shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by Law to a limited liability company organized under the Laws of the State of Delaware.

(b) Certain Regulatory Restrictions.

(i) Notwithstanding anything to the contrary in this Agreement, the Company and the Members acknowledge that FNBO and its Affiliates are subject to regulatory oversight by bank regulatory authorities on an ongoing basis and that FNBO or its Affiliates may be required to obtain regulatory approvals from, or provide notice to, such authorities, prior to, or provide notice to such authorities following, the Company’s engagement in certain activities or consummation of certain investments or as a result of such regulatory oversight, review, audit and/or examination by bank regulatory authorities (“Regulatory Approval”). Notwithstanding anything to the contrary in this Agreement, to the extent required by the applicable Law or regulatory agency neither the Company nor any Subsidiary shall engage in any new activity not set forth in 12 CFR § 5.34(e)(5)(V) (a “New Activity”), whether by acquisition, investment or organic growth, without first sending written notice to FNBO (the “New Activity Notice”). Activities engaged in by the Business as of the date hereof shall not be considered a New Activity. Within thirty (30) days after receipt of the New Activity Notice, FNBO must notify the Board of Directors in writing (A) whether such New Activity by the Company or its Subsidiaries would be permissible for FNBO and/or its Affiliates to make or engage in directly under all applicable banking Laws and (B) that either (1) no Regulatory Approval with respect to FNBO and/or its Affiliates is required for such New Activity by the Company or its Subsidiaries or (2) any required Regulatory Approval with respect to such New Activity by the Company or its Subsidiaries has been requested by FNBO. Neither the Company nor any Subsidiary shall engage in such New Activity if FNBO notifies it that such activity by the Company or its Subsidiaries

is impermissible under applicable Law or until required Regulatory Approvals are obtained, it being understood that a Regulatory Approval shall not be deemed obtained until the expiration of any applicable waiting periods or the receipt of any necessary approval, as applicable.

(ii) To the extent required by the applicable Law or regulatory agency the Company agrees and agrees to cause its Subsidiaries to be subject to supervision and examination by the Office of the Comptroller of the Currency, subject to the limitations and requirements of Section 45 of the Federal Deposit Insurance Act (12 U.S.C. 1831v) and Section 115 of the Gramm-Leach-Bliley Act (12 U.S.C. 1820a).

(iii) The Company shall, at FNBO’s expense, use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable, as promptly as possible, to assist FNBO or its Affiliates in obtaining any Regulatory Approval necessary for FNBO or its Affiliates to qualify or continue its ownership interest in the Company as a permissible investment, including by (A) making appropriate filings and submissions to any Government Entity required by Law applicable to the Company or the Subsidiaries or FNBO or its Affiliates, (B) providing any information to FNBO as may be reasonably requested by FNBO or its Affiliates in connection therewith and (C) executing and delivering additional documents necessary to consummate the transactions contemplated by this Agreement in connection therewith. FNBO shall use its commercially reasonable efforts to obtain any Regulatory Approval as promptly as possible, provided that FNBO will exercise commercially reasonable efforts to minimize disclosure of any confidential or proprietary information relating to the Company and to seek confidential treatment for any such information, in each case to the maximum extent allowed under applicable Law.

(iv) Notwithstanding the foregoing but subject to Section 4.09(g), the obligations of the Company contained in Section 2.04(b)(i)-(iii) shall be deleted and of no force and effect following a Large Acquisition or when FNBO and its Affiliates hold less than 15% of the outstanding Units, in which case CDEC shall have a right to call FNBO’s Units from FNBO (and FNBO shall be obligated to sell to CDEC (or its Affiliates) all of FNBO’s Units and FNBO shall have the right to put its Units to CDEC (and CDEC (or its Affiliates)) shall be obligated to purchase from FNBO) all of FNBO’s Units for cash in the event the Company determines actual or proposed activities of the Company are regulated, restricted or prohibited by Law due to FNBO’s ownership of the Units or FNBO determines it is in violation of applicable banking Laws due to its ownership of the Units and such regulation, restriction, prohibition or violation is not resolved within 120 days of such determination. FNBO shall indemnify the Company, CDEC and CDEC’s Affiliates for all Losses resulting out of such regulation, restriction, prohibition or violation during such 120 day period. “Losses” means any losses, liabilities, damages and claims and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation,

settlement, judgment, interest and penalties). The valuation of the Units shall be consistent with the methodology used in Section 4.09(f). Such call and put rights shall begin following such 120 day period and continue for so long as such restriction, regulation, prohibition or violation is occurring.

(c) Company Action. Subject to the provisions of this Agreement, except as prohibited by applicable Law, (i) the Company may, with the approval of the Board of Directors, enter into and perform any and all documents, agreements and instruments contemplated by such approval, all without any further act, vote or approval of any Member, and (ii) the Board of Directors may authorize any Person (including any Member or Officer) to enter into and perform any document on behalf of the Company.

Section 2.05. Foreign Qualification. Prior to the Company’s or any Subsidiary’s conducting business in any jurisdiction other than Delaware, the Board of Directors shall cause the Company or such Subsidiary to comply, to the extent procedures are available and those matters are reasonably within the control of the Officers, with all requirements necessary to qualify the Company or any Subsidiary as a foreign limited liability company conducting business in that jurisdiction.

Section 2.06. Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the initial registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Board of Directors may designate from time to time in the manner provided by Law. The registered agent of the Company in the State of Delaware shall be the initial registered agent named in the Certificate or such other Person or Persons as the Board of Directors may designate from time to time in the manner provided by Law. The principal office of the Company shall be at such place as the Board of Directors may designate from time to time, which need not be in the State of Delaware, and the Company shall maintain records at such place. The Company may have such other offices as the Board of Directors may designate from time to time.

Section 2.07. No State-law Partnership. The Members intend that the Company shall not be a partnership (including a limited partnership) or joint venture, and that no Member, Director or Officer shall be a partner or joint venturer of any other Member, Director or Officer by virtue of this Agreement, for any purposes other than as set forth in the last sentence of this Section 2.07, and this Agreement shall not be construed to the contrary. The Members intend that the Company shall be treated as a partnership for federal, state or local income tax purposes, and each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment.

ARTICLE III

UNITS

Section 3.01. Authorized Units. The only beneficial interests in the Company shall be units (“Units”). The Company shall have authority to issue Class A Units having the rights, preferences, privileges and restrictions set forth in this Agreement (each, a “Class A Unit” and,

collectively, the “Class A Units”), Class B Units having the rights, preferences, privileges and restrictions set forth in this Agreement (each, a “Class B Unit” and, collectively, the “Class B Units”), and Class C Units having the rights, preferences, privileges and restrictions set forth in Section 4.09(g) (each, a “Class C Unit” and, collectively, the “Class C Units”); provided, however, that, subject to Section 4.01(h)(xii), (i) the Board of Directors may from time to time authorize the issuance of additional Class A Units and Class B Units and such other Units with such rights, preferences, privileges and restrictions as the Board of Directors shall designate in accordance with the terms and conditions of this Agreement (provided that such rights, preferences or privileges shall not disproportionately impact the Economic Interests or voting rights of a Member in any material and adverse respect without the written consent of such Member except as otherwise set forth in Section 4.09(g)), and (ii) this Agreement shall be amended in order to document such new classes of Units and their rights, preferences, privileges and restrictions and/or such authorized number of Units of existing classes of Units, in each case with no further action required by the Members. Except as otherwise set forth in Section 4.09(g), the issuance of any Units after the Effective Date shall be subject to the Members’ Preemptive Rights and FNBO’s rights under Section 4.09(b)(ii), as applicable, shall be issued at a price at least equal to or greater than Fair Market Value and shall be paid for in cash or, in connection with an acquisition by the Company or any Subsidiary or the contribution by a Member of assets to the Company or any Subsidiary related to the Business or its strategic direction as outlined in the Business Plan, cash or other property the Fair Market Value of which shall be determined in good faith by the Board of Directors. The initial holdings of Units shall be as set forth on Schedule I.

Section 3.02. General. Except as otherwise expressly provided in this Agreement, all Units shall have identical rights and privileges in every respect.

Section 3.03. Voting. Each Member shall be entitled to one vote per Class A Unit and one vote per Class B Unit that it holds with respect to any matter as to which the Members holding such Units are entitled to vote, provided that any Class A Units or Class B Units held by any Assignee shall be nonvoting, in each case except as otherwise provided in this Agreement.

Section 3.04. Preemptive Rights.

(a) General. At any time before the consummation of the IPO, the Company shall not be authorized to issue any New Securities (other than Exempt Securities) unless each Member is granted the opportunity to purchase for cash up to its Pro Rata Portion of such New Securities (other than Exempt Securities) (“Preemptive Rights”), provided that, for the avoidance of doubt, (i) the Board of Directors may waive the Preemptive Rights of all Members with respect to any issuance of New Securities that otherwise meets the requirements specified in clause (c) of the definition of Exempt Securities, (ii) no Member shall have Preemptive Rights with respect to the IPO and (iii) no Member shall have Preemptive Rights with respect to any Units purchased by FNBO pursuant to Section 4.09(b)(ii).

(b) Offer Period. Promptly following the Board’s determination to issue New Securities (other than Exempt Securities), the Company shall provide each Member with a written notice describing in reasonable detail the New Securities being offered, the

purchase price thereof, the basis for the determination of the purchase price thereof, the payment terms, such Member’s Pro Rata Portion of the New Securities and all other facts that would be material to any determination by a Member as to whether to purchase such New Securities (the “Preemptive Rights Notice”). In order to exercise its Preemptive Rights, each Member must deliver a written notice to the Company describing its election to exercise its Preemptive Rights within five Business Days after receipt of the Preemptive Rights Notice.

(c) Expiration of Offer Period. For 120 days following the expiration of the offering period described in Section 3.04(b), the Company shall be entitled to sell such New Securities that the Members have not elected to purchase on terms and conditions no more favorable to the purchasers thereof than those offered to the Members. Any New Securities to be sold by the Company to any Person after such 120-day period must be reoffered to the Members pursuant to the terms of this Section 3.04.

Section 3.05. Units Held by New SPC. All Units held by New SPC shall be deemed to be held by FNBO for purposes of this Agreement (other than, with respect to those Units owned by New SPC, for purposes of the economic rights to allocations and distributions set forth in Article V hereof and the economic rights upon dissolution of the Company pursuant to Section 6.02 and the Act), and New SPC shall be obligated to comply with the terms, conditions and obligations applicable to FNBO as set forth herein, including with respect to any obligation to Transfer Units as contemplated by Articles IV and VI. New SPC shall be solely a passive investor in the Company, and any rights with respect the Units held by New SPC pursuant to the terms and conditions of this Agreement shall be deemed to be held by FNBO for purposes of this Agreement (other than, with respect to those Units owned by New SPC, for purposes of the economic rights to allocations and distributions set forth in Article V hereof and the economic rights upon dissolution of the Company pursuant to Section 6.02 and the Act).

Section 3.06. Large Acquisition — Limitation on Rights, Powers and Privileges. Each Member acknowledges and agrees that the rights, powers and privileges set forth herein of the Members shall be subject to the terms and conditions of Section 4.09(g).

ARTICLE IV

MANAGEMENT

Section 4.01. Board of Directors.

(a) Management by the Board of Directors. Subject to the Business Plan and the terms of this Agreement, the business and affairs of the Company shall be managed and controlled by, or under the direction of, a Board of Directors (the “Board of Directors,” and each director on the Board of Directors is referred to individually as a “Director” and collectively as the “Directors”), which may exercise all such powers of the Company and do all such lawful acts and things as are not, by Law or by this Agreement, directed or required to be exercised or done by a Member or the Members.

(b) Waiver of Fiduciary Duties. Each of the Members and the Company acknowledges and agrees that (i) each Director is the designee of the Member(s) that appointed such Director, is acting as a proxy for such Member(s) with respect to the management of the Company and does not have any duties (including fiduciary duties) to the Company, any Subsidiary or any other Member, nor shall any Member have any such duty, and (ii) each Member hereby acknowledges and agrees that each Director, in determining whether or not to vote in support of or against any particular decision for which the Board of Directors’ consent is required, may act in and consider the best interest of the Member who designated such Director and shall not be required to act in or consider the best interests of the Company or the other Members or parties hereto. Each of the Members and the Company agree that any duties, whether express or implied (including fiduciary duties), of a Director to the Company or to any other Member that would otherwise apply at law or in equity are hereby eliminated to the fullest extent permitted under the Act (including Section 18-1101(c) of the Act) and any other applicable Law, and each Member hereby waives all rights to, and releases each Director from, any such duties. Notwithstanding anything to the contrary contained in this Agreement, (i) the foregoing shall not eliminate or limit the obligation of the Members or any Director to act in compliance with the express terms of this Agreement (other than the foregoing), including an obligation in this Agreement to make determinations in good faith, and (ii) the foregoing shall not be deemed to eliminate the implied contractual covenant of good faith and fair dealing of the Members. Except as otherwise expressly provided in this Agreement, nothing contained in this Agreement shall be deemed to constitute any Director or Member an agent or legal representative of any other Member or to create any fiduciary relationship for any purpose whatsoever, apart from such obligations between the members of a limited liability company as may be created by the Act. A Member shall not have any authority to act for, or to assume any obligation or responsibility on behalf of, any other Member, the Company or any Subsidiary.

(c) No Individual Authority. No Director has the authority or power to act for, or on behalf of, the Company, to do any act that would be binding on the Company or any Subsidiary, to make any expenditures or incur any obligations on behalf of the Company or any Subsidiary or to authorize any of the foregoing, other than acts that are expressly authorized by the Board of Directors.

(d) Designation of the Directors.

(i) Number and Designation. The Board of Directors shall consist of five Directors as of the Effective Date. The number of Directors constituting the entire Board of Directors may be changed only with the written approval of a majority of the Directors, subject to the supermajority voting requirements of Section 4.01(h)(xv). The Directors shall be determined by the Members as provided in this Section 4.01(d)(i). Directors need not be Members or officers of Members. At any time at which Members shall have the right to, or shall, vote for Directors of the Company, the Members shall vote all Units as to which they are then entitled to vote generally in the election of Directors so as to fix the number of Directors at five (or such other number as is approved pursuant to this Section 4.01(d)(i)) and for the election of a Board of Directors in the manner set

forth below or in such other manner as is approved pursuant to any change in the number of Directors approved pursuant to this Section 4.01(d)(i):

(A) Three Directors designated by the Members holding a majority of the Class A Units then held by all Members (each, a “Class A Director” and, collectively, the “Class A Directors”); and

(B) Two Directors designated by the Members holding a majority of the Class B Units then held by all Members (each, a “Class B Director” and, collectively, the “Class B Directors”), provided that, subject to Section 4.09(g), for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, FNBO shall designate at least one of such two Directors. Notwithstanding any other provisions of this Agreement including Section 4.09(g), in the event that FNBO shall cease to be a Member or becomes a holder of only Class C Units, for so long as FNBO sponsors the Company for registration with any Card Association, FNBO shall be entitled to one observer seat on the Board of Directors, to notice of and to attend all meetings of the Board of Directors and committees thereof and to all information provided to the Board of Directors and committees thereof.

The Board of Directors as of the Effective Date shall be comprised of the individuals set forth on Exhibit B.

(ii) Term. Each Director shall hold office until the earlier of (A) the appointment or election and qualification of the Director’s successor and (B) the Director’s death, resignation or removal. There is no limit to the number of terms a Director may serve.

(iii) Removal; Election of Successors. If the Company receives a written notice that either the Members holding a majority of the Class A Units then held by all Members or the Members holding a majority of the Class B Units then held by all Members desire to remove a Director designated by the applicable Members, the Company and each of the Members agrees to take such action as is necessary to call a special meeting of the Members of the Company (or effect a written consent in lieu thereof) for the purpose of effecting any such removal, and at such meeting (or in effecting such consent for any reason) each of the Members shall vote to accomplish said result, provided that, subject to Section 4.09(g), for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, only FNBO may deliver such written notice in respect of the removal of any Director designated by FNBO. In the event that any Director is removed or shall have resigned or become unable to serve, the Member that had the power to designate such Director pursuant to Section 4.01(d)(i) shall have the power to designate a person to fill such vacancy, and shall nominate an individual to fill such vacancy within thirty (30) days of any removal or resignation, whereupon the Company and each

of the Members agrees to take such action as is necessary to elect such person to fill such vacancy promptly (including, if necessary, calling a special meeting of the Members of the Company (or effecting a written consent in lieu thereof) and voting all Units owned by such Members to accomplish such result). Other than as provided in this Section 4.01(d)(iii), no Member shall, nor have the power of authority to, vote in favor of the removal of any Director who shall have been designated or nominated pursuant to Section 4.01(d)(i). Any Director designated by a majority of the Board of Directors pursuant to Section 4.01(e) to fill a newly created Director position may be removed by a vote of the majority of the Board of Directors.

(e) Vacancies; Resignation. Vacancies shall be filled in accordance with Section 4.01(d)(i), other than vacancies of newly created Director positions resulting from any increase in the number of Directors pursuant to Section 4.01(h)(xv), which vacancies shall be filled in the manner dictated at the time of the creation of the newly created Director position. Newly created Director positions resulting from any increase in the number of Directors, unless filled in another manner approved in connection with the approval of such newly created Director position, may be filled by a vote of the majority of the Board of Directors, and each Director so chosen shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal by the Board of Directors. A Director may resign at any time by giving written notice to the Board of Directors.

(f) Meetings.

(i) Regular Meetings. Regular meetings of the Board of Directors shall be held within sixty (60) days of the end of each fiscal year and at least once every fiscal quarter, in each case at such times and places as shall be designated from time to time by resolution of the Board of Directors. Written notice of each regular meeting of the Board of Directors shall be given to each Director at least five Business Days before the date of the meeting unless waived by each Director.

(ii) Special Meetings. Special meetings of the Board of Directors may be called on at least five Business Days’ notice (unless waived by each Director) to each Director and may be called by any Director.

(iii) Notice; Waiver. Notice of any regular or special meeting of the Board of Directors or any committee of the Board of Directors may be given personally or by mail, facsimile or courier and shall be deemed given upon any of the following: (A) when personally delivered to the Director; (B) when sent by first class mail to the Director; (C) when faxed to the Director (provided such fax is confirmed); or (D) one Business Day after being sent to the Director by reputable national overnight courier service (charges prepaid), at the mailing address or fax number, as applicable, of the Director as listed on the books and records of the Company. The name, address, facsimile and telephone number of each of the current Directors are as set forth on Exhibit B. Attendance of a Director at a meeting in person or by proxy shall constitute a waiver of notice of

such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Any Director appointed shall be entitled to appoint another Director as a proxy to attend and vote at meetings in his absence.

(iv) Place of Meetings. All meetings of the Board of Directors may be held either within or without the State of Delaware at such place or places as shall be determined from time to time by resolution of the Board of Directors.

(v) Attendance by Telephone. Members of the Board of Directors may participate in any meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at a meeting.

(vi) Quorum; Actions at a Meeting.

(A) Provided that notice is given to or waived by all Directors pursuant to Section 4.01(f)(iii), a majority of the total number of Directors (which majority shall include at least two Class A Directors and at least two Class B Directors) shall constitute a quorum for the transaction of business of the Board of Directors and, subject to Section 4.01(h), the acts of a majority of the Directors present at a meeting of the Board of Directors at which a quorum is present shall be the acts of the Board of Directors, provided that such acts include the affirmative vote of at least one Class A Director. Approval of the Board of Directors shall be required for any contracts between a Member and the Company, subject to the supermajority voting requirements of Section 4.01(h).

(B) Notwithstanding Section 4.01(f)(vi)(A), if it is determined after the calling of any Board of Directors meeting pursuant to the provisions of this Agreement that the number of Directors able to attend such meeting will not constitute a quorum (as set forth in Section 4.01(f)(vi)(A)), then such meeting shall be rescheduled by the Board of Directors for a date within five Business Days after the date on which such meeting was initially proposed to be held (the “Rescheduled Board of Directors Meeting”). If it is determined that the number of Directors able to attend such Rescheduled Board of Directors Meeting will not constitute a quorum, then, for purposes of such Rescheduled Board of Directors Meeting only, a quorum shall be considered present when a majority of the Directors are in attendance which shall include at least one Class A Director, provided that no matter may be considered at the Rescheduled Board of Directors Meeting that was not the subject of the notice of meeting delivered pursuant to Section 4.01(f)(iii) with respect to the initial meeting.

(C) Notwithstanding Section 4.01(f)(vi)(A), following a Trigger Event, a quorum shall exist when a majority of the Directors are in attendance, provided that notice is given to or waived by all Directors pursuant to Section 4.01(f)(iii).

(D) A Director who is present in person or by proxy at a meeting of the Board of Directors at which action on any matter is taken shall be presumed to have assented to the action unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file his or her written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof or shall deliver such dissent to the Company immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favor of such action.

(g) Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all of the members of the Board of Directors consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board of Directors.

(h) Supermajority Voting. Notwithstanding anything to the contrary contained herein but subject to the last sentence of this Section 4.01(h) and Section 4.09 (g), the following matters relating to the business and operations of the Company and/or the Subsidiaries shall be presented to the Board of Directors and shall require the affirmative vote of at least four out of the five Directors, or, in the event that the Board of Directors is expanded pursuant to Section 4.01(d)(i), a number of Directors that includes at least one Class B Director who is designated by FNBO (a “Board Supermajority”):

(i) any Change of Control of the Company or Opco (A) during the first two years following the Effective Date, (B) during the third year following the Effective Date that implies an Enterprise Value of the Company and the Subsidiaries of less than $295,000,000 or (C) during the fourth or fifth years following the Effective Date that implies an Enterprise Value of the Company and the Subsidiaries of less than $400,000,000 (in each case other than in connection with a Qualifying Acquisition or a Large Acquisition);

(ii) any sale, transfer or disposition, in one or a series of related transactions, of any assets or other property of the Company and/or any Subsidiary having a Fair Market Value in excess of $29,500,000 in the aggregate (other than pursuant to a Change of Control or as contemplated by the Business Plan or in connection with a Qualifying Acquisition or a Large Acquisition);

(iii) any transfer of a Business function or service from the Company or Opco to a person other than FNBO or its Affiliates, unless such transfer is included in the process provided for in the initial Business Plan agreed to by CDEC and FNBO as of the Effective Date or is done pursuant to the Transition Services Agreement (as defined in the Investment Agreement), or otherwise does

not increase costs attributable to the Company for functions or services of equivalent quality and service levels;

(iv) any contract between a Member (or an Affiliate), other than CDEC or its Affiliates, and the Company or Opco, other than in connection with a Qualifying Acquisition or a Large Acquisition;

(v) the engagement by the Company or any Subsidiary, either directly or indirectly, in a transaction or series of related transactions with TSYS or any entity in which TSYS holds equity securities or debt convertible into equity securities or any executive management employee of the Company or any Subsidiary, including ownership by TSYS or an executive management employee or a member of any such individual’s family group of any supplier, contractor, subcontractor, customer or other entity with which the Company or any Subsidiary does business or seeks to do business (other than as a shareholder of less than 2% of a publicly traded class of securities), where either (X) such transaction or transactions are not on arm’s-length terms or (Y) such transaction or transactions would require the Company or any Subsidiary to pay or incur obligations of more than $500,000 other than in connection with a Qualifying Acquisition or a Large Acquisition;

(vi) any material expansion in the scope of services provided by the Business to its customers (it being understood that the provision of services reasonably related to the current Business shall not constitute such a material expansion) other than in connection with a Qualifying Acquisition or a Large Acquisition;

(vii) any loan or series of related loans (other than in connection with Independent Sales Organizations’ and Agent Banks’ residuals financing) by the Company or any Subsidiary (except in the ordinary course of business or in connection with a Qualifying Acquisition or a Large Acquisition) in an amount exceeding $1,000,000 or a loan in connection with an acquisition from FNBO or its Affiliates;

(viii) the effectuation of any Non-Qualified IPO before the third anniversary of the Effective Date other than in connection with a Qualifying Acquisition or a Large Acquisition;

(ix) [Intentionally Deleted.]

(x) the declaration, setting aside for payment of, or payment of, any Distribution by the Company to the Members other than Quarterly Distributions or as contemplated by the Business Plan;

(xi) any request for any additional capital contribution from FNBO and/or from New SPC in its capacity as a Member for any purposes other than for acquisitions made by the Company;

(xii) issuances of interests in the Company, other than in connection with a Qualifying Acquisition or Large Acquisition, constituting on a fully diluted basis more than 20% of the Company (the “Issuance Threshold”); provided, however that no Board Supermajority consent will be necessary at any time after the third anniversary date of this Agreement if the Company’s EBITDA for the most recently completed twelve month period preceding a designated measurement date is less than $17,500,000. For purposes of clarification, the issuance of interests below the Issuance Threshold may include issuances of interests to one or more of the Members or their Affiliates (which shall not be subject to Sections 4.01(h)(iv) or (v)), provided that such issuances are at least at Fair Market Value;

(xiii) approval and submission to any applicable tax authority of any material tax elections (other than a Section 754 election or an election to make Section 704(c) or “reverse Section 704(c)” allocations in the manner specified herein or an election to treat any new direct or indirect subsidiaries acquired or organized by the Company as a partnership or disregarded entity for U.S. federal income tax purposes), including any permitted determinations related to any Adjusted Capital Account Deficit or Gross Asset value, or matters in Sections 5.03(d)(iv), 5.03(f), 7.02(e) and 7.03, provided that the following review and deadlock resolution procedure shall apply with respect to the matters subject to this Section 4.01(h)(xiii): The Class A Directors shall provide draft copies of any such material tax elections to the Class B Directors at least thirty (30) days before the filing deadline and shall provide the Class B Directors with any information requested by the Class B Directors to review such tax elections. The Class B Directors will notify the Class A Directors within 15 days of receipt of such draft tax election of their approval or disapproval of the draft tax election. If a Board Supermajority cannot agree on whether to make any such tax election, then the election shall not be made. If a Board Supermajority cannot agree on any other tax position in a material tax election where an election must be made, then, at the Company’s expense, any Big Four accounting firm agreed to by a Board Supermajority shall determine whether the tax position proposed by the Class A Directors or the tax position proposed by the Class B Directors is more likely to prevail or, if such positions are equally likely to prevail, whether the tax election proposed by the Class A Directors or the tax election proposed by the Class B Directors is more neutral to the Members, and in each case such determination shall be binding for purposes of this Section 4.01(h)(xiii);

(xiv) other than in connection with a Qualifying Acquisition or a Large Acquisition any change to the capitalization or organization of any Subsidiary or any change at any Subsidiary or any governance provisions of any Subsidiary that, in any case, would in any way have the effect of circumventing the provisions, including the protections afforded the Members in Section 4.01(h), of this Agreement, or materially and adversely affecting any Member that, together with its Affiliates, collectively holds 15% or more of the Units in a manner differently than or disproportionate to the other Members, including the amendment of the Opco LLC Agreement, it being understood that it is intended

that no action may be effected at a Subsidiary that could not be effected at the Company under this Agreement;

(xv) any determination to increase the size of the Board of Directors or to grant to any Person, other than CDEC and FNBO pursuant to the terms of this Agreement, the right to appoint a member of the Board of Directors.

Notwithstanding the foregoing, following a Trigger Event, only the affirmative vote of a majority of the Directors present at a meeting shall be required with respect to the actions described in Section 4.01(h) (other than clauses (i), (iii), (v) and (xii) thereof); provided that such approval includes the affirmative vote of at least one Class A Director.

(i) Approval of Business Plan. The Company shall conduct its business affairs at all times in accordance with the Business Plan in effect from time to time. Not less frequently than once a year, the Board of Directors shall review, amend and update the Business Plan to account for any acquisitions, dispositions or other Board of Directors-approved actions that were not contemplated by the Business Plan at the time of its adoption, and the adoption of each Business Plan shall require the approval of a majority of the Board of Directors.

(j) Compensation. The Company will reimburse all Directors for reasonable out-of-pocket expenses (including travel expenses) actually incurred in connection with their service on the Board of Directors or any committee thereof, promptly upon written request. In the discretion of the Board of Directors, each Director (other than an employee of the Company or any Subsidiary, FNBO, CDEC or any of their respective Affiliates) may be paid such fees for such Director’s services as Director or as a member of any committee as the Board of Directors may determine from time to time.

(k) Committees.

(i) Authorization; Composition; Powers. The Board of Directors shall, by resolution adopted by a majority of the Directors then in office, designate such committees as the Board of Directors from time to time may determine, and prior to a Trigger Event each such committee shall consist of at least one Class A Director and at least one Class B Director as members (which Class A Director and Class B Director shall be designated by the Members holding a majority of the Class A Units then held by all Members and the Members holding a majority of the Class B Units then held by all Members, respectively, voting as a separate class, provided that, subject to Section 4.09(g), for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, FNBO shall designate such Class B Director). Except as expressly limited by applicable Law, any such committee shall have and may exercise such powers and authority as the Board of Directors may determine and specify in the resolution designating such committee or any amendment thereto, but subject to the limitations in this Agreement, including Section 4.01(h), applicable to the Board of Directors.

(ii) Quorum; Actions at a Meeting.

(A) Provided that notice is given pursuant to Section 4.01(f)(iii) to or waived by all Directors who are members of the committee, the presence in person or by proxy of at least one Class A Director and at least one Class B Director shall be required for any committee to have a quorum, except as otherwise provided in Sections 4.01(k)(ii)(C) and (D).

(B) The affirmative vote of a majority of the committee members present at a meeting shall be sufficient for effective committee action when a quorum is present, provided that such majority includes at least one Class A Director.

(C) Notwithstanding Sections 4.01(k)(ii)(A) and (B), if it is determined after the calling of any committee meeting pursuant to the provisions of this Agreement that the Directors able to attend such meeting will not constitute a quorum (as set forth in Section 4.01(k)(ii)(A)), then such meeting shall be rescheduled for a date within 10 Business Days after the date on which such meeting was initially proposed to be held (the “Rescheduled Committee Meeting”). If it is determined that the number of Directors able to attend such Rescheduled Committee Meeting will not constitute a quorum, for purposes of such Rescheduled Committee Meeting only, a quorum shall be considered present when a majority of the Directors that are members of such committee are in attendance, which shall include at least one Class A Director, provided that no business may be considered at the Rescheduled Member Meeting that was not the subject of the notice of meeting delivered pursuant to Section 4.01(f)(iii) with respect to the initial meeting.

(D) Notwithstanding Sections 4.01(k)(ii)(A), following a Trigger Event, a quorum shall exist when a majority of the Directors that are members of such committee are in attendance, provided that notice is given to or waived by all Directors pursuant to Section 4.01(f)(iii).

(iii) Attendance by Telephone. Members of a committee of the Board of Directors may participate in any meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at a meeting.

(iv) Action Without Meeting. Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all of the members of such committee consent thereto in writing and the writing or writings are filed with the minutes of proceedings of such committee.

Section 4.02. Meetings of the Members.

(a) Meetings.

(i) Regular Meetings. The Company may hold annual meetings to transact such business as the Members may determine, provided that no action may be taken at any regular meeting of Members that would in any way have the effect of circumventing the provisions of this Agreement, including the protections afforded the Members in Section 4.01(h). The date of the annual meeting, if held, shall be determined by the Board of Directors.

(ii) Special Meetings. Special meetings may be called by a majority of the Board of Directors upon at least two Business Days’ notice to the Members or by any Member upon at least five Business Days’ notice given in accordance with Section 8.07 to the other Members, provided that no action may be taken at any special meeting of Members that would in any way have the effect of circumventing the provisions of this Agreement, including the protections afforded the Members in Section 4.01(h).

(iii) Notice; Waiver. Written notice of each regular meeting of the Members setting the place, date and time of the meeting shall be given in accordance with Section 8.07, not less than 10 or more than 60 calendar days before the date of the meeting, to each Member. Attendance of a Member at a meeting shall constitute a waiver of notice of such meeting, except where a Member attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

(iv) Place of Meetings. All meetings of the Members shall be held at such time and place within or without the State of Delaware as shall be designated by the Board of Directors or, if called by a Member, at the principal place of the Company and the Subsidiaries. In the absence of any such designation by the Board of Directors, each such meeting shall be held at the principal place of business of the Company and the Subsidiaries.

(v) Attendance by Telephone. Members may participate in any meeting of Members by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at a meeting.

(b) Quorum; Actions at a Meeting.

(i) Provided that notice is given pursuant to Section 4.02(a)(ii) or (iii), as applicable, to or waived by all Members, a quorum shall be considered present when Members holding two-thirds of the Units then held by all Members are in attendance, except as otherwise provided in Sections 4.02(b)(iii) and (iv).

(ii) Approval for any matter submitted to the Members for a vote shall require the affirmative vote or consent of the Members holding a majority of the Units then held by all Members, voting together as a single class, present at a meeting in which a quorum is present, except as otherwise expressly provided by this Agreement.

(iii) Notwithstanding Sections 4.02(b)(i) and (ii), if it is determined after the calling of any meeting of Members pursuant to the provisions of this Agreement that the number of Members able to attend such meeting will not constitute a quorum (as set forth in Section 4.02(b)(i)), then such meeting shall be rescheduled for a date within 10 Business Days after the date on which such meeting was initially proposed to be held (the “Rescheduled Member Meeting”). If it is determined that the number of Members able to attend such Rescheduled Member Meeting will not constitute a quorum, for purposes of such Rescheduled Meeting only, a quorum shall be considered present when Members holding a majority of the Units then held by all Members are in attendance (which in any event shall include Members holding a majority of the Class A Units), provided that no business may be considered at the Rescheduled Member Meeting that was not the subject of the notice of meeting delivered pursuant to Section 4.02(a) with respect to the initial meeting; provided, further, that no action may be taken at any Rescheduled Member Meeting that would in any way have the effect of circumventing the provisions of this Agreement, including the protections afforded the Members in Section 4.01(h).

(iv) Notwithstanding Section 4.02(b)(i), following the occurrence of a Trigger Event, a quorum shall be considered present when Members holding a majority of the Units then held by all Members are in attendance.

(c) Informal Action by Members. Any action required to be taken at a meeting of the Members, or any other action which may be taken at a meeting of the Members, may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by those Members that would be necessary to approve such action at a meeting of the Members at which a quorum was present. Notice of any such action shall be delivered to all Members as promptly as practicable.

(d) Approval or Ratification of Acts or Contracts. Any act or contract that shall be approved or be ratified by the Board of Directors in accordance with this Agreement shall be valid and binding upon the Company.

(e) Actions Requiring Member Approval. The prior written consent of the Members holding a majority of the Class A Units then held by all Members and the Members holding a majority of the Class B Units then held by all Members, each voting separately as a single class, shall be required for the following, provided that, subject to Section 4.09(g), for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, FNBO’s (and only FNBO’s) written consent in respect of the Class B Units will be required:

(i) any matters required by the Act to be approved by each class of Units;

(ii) any amendment to the Certificate; and

(iii) any amendments to this Agreement

provided that, following the occurrence of a Trigger Event, any amendments to the Certificate or this Agreement shall only require the prior consent of the Members holding a majority of the Units, voting together as a single class. Notwithstanding anything to the contrary contained herein, if an amendment to the Certificate or this Agreement would (i) materially and adversely affect any Member’s rights to distributions or the allocations set forth in this Agreement, (ii) modify the limited liability of a Member in a manner adverse to such Member, or (iii) amend the definition of Arbitration Dispute, Change of Control, Exempt Securities, Lauritzen Group, New Securities, Pro Rata Portion, Trigger Event or Section 2.04(b), Section 3.03, Section 7.02, Section 8.11 or any provision Articles IV, V or VI, then the consent of a majority of each group of Members affected in the same manner shall be required, provided that, subject to Section 4.09(g), if the affected Members are Class B Members (as a Class) for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, then FNBO’s (and only FNBO’s) written consent in respect of the Class B Units will be required; provided, further, that any Members that are Affiliates of any Member who has proposed an amendment to the Certificate or this Agreement shall be deemed to be affected in the same manner by such amendments as the Affiliated Member proposing it (and not of any other group affected differently than the Member proposing the amendment), it being understood that any amendment to Section 4.01(h) shall be considered material and adverse. Except for the matters listed above and as otherwise specifically contemplated in this Agreement, the consent of the Members shall not be required for any other matter or action.

Section 4.03. Chairperson. A majority of the Class A Directors shall designate a Director to serve as Chairperson of the Board of Directors (the “Chairperson”). For the avoidance of doubt, a Director serving as the Chairperson shall be entitled to vote with the Board of Directors on all matters, including the designation of a Chairperson. The Chairperson shall preside at all meetings of the Board of Directors. If the Chairperson is absent at any meeting of the Board of Directors, a majority of the Directors present shall designate another Director to serve as interim Chairperson for that meeting. The Chairperson shall have no authority or power to act for or on behalf of the Company, to do any act that would be binding on the Company or to make any expenditure or incur any obligations on behalf of the Company or authorize any of the foregoing. The initial Chairperson is noted on Exhibit B.

Section 4.04. Officers.

(a) Designation and Appointment. The Board of Directors may, from time to time, employ and retain Persons as may be necessary or appropriate for the conduct of the Company’s and the Subsidiaries’ business (subject to the supervision and control of the Board of Directors), including employees, agents and other Persons (any of whom may

be a Member or Director) who may be designated as Officers of the Company or of one or more Subsidiaries, with titles as and to the extent authorized by the Board of Directors. Any number of offices may be held by the same Person. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable. Officers need not be residents of the State of Delaware or Members. Any Officers so designated shall have such authority and perform such duties as the Board of Directors may, from time to time, delegate to them. The Board of Directors may assign titles to particular Officers. Each Officer shall hold office until his successor shall be duly designated and shall qualify or until his death or until he shall resign or shall have been removed in the manner provided in this Agreement.

(b) Resignation/Removal. Any Officer may resign his or her office at any time. Such resignation shall be made in writing and shall take effect at the time specified therein or, if no time is specified, at the time of its receipt by the Board of Directors. The acceptance of a resignation shall not be necessary to make it effective, unless expressly so provided in the resignation. Any Officer may be removed as such, either with or without cause at any time by the Board of Directors. Designation of an Officer shall not of itself create any contractual or employment rights.

(c) Duties of Officers Generally. The Officers, in the performance of their duties as such, shall owe to the Company duties of loyalty and due care of the type owed by the officers of a corporation to such corporation and its stockholders under the Laws of the State of Delaware.

(d) President. The Board of Directors shall appoint a President of the Company (the “President”). The President (i) shall be in general and active charge of the entire business and affairs of the Company and shall be its chief policy-making officer and (ii) shall, subject to the powers of the Board of Directors and the limitations set forth in Section 4.01, have the power and authority to cause the Company to enter into and perform contracts and agreements in the ordinary course of business without action of the Board of Directors in accordance with the Business Plan. The President shall have such other powers and perform such other duties as may be prescribed by the Board of Directors. In the event that the President resigns or is removed for any reason, the Board of Directors will consult with FNBO in good faith regarding the successor President.

(e) Chief Financial Officer. The chief financial officer of the Company (the “Chief Financial Officer”) shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the Company, including accounts of its assets, liabilities, receipts, disbursements, gains, losses and capital. The Chief Financial Officer shall have the custody of the funds and securities of the Company, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company, and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board of Directors. The Chief Financial Officer shall have such other powers and perform such other duties as may from time to time be prescribed by the President or the Board of Directors, subject to the limitations set forth in Section 4.01 and the Business Plan. For the sake of clarity, no

separate vote of the Members holding Class B Units or the Class B Directors shall be required to hire the initial or any successor Chief Financial Officer.

(f) Vice President(s). The vice president(s) of the Company shall perform such duties and have such other powers as the Board of Directors may from time to time prescribe.

(g) Secretary.

(i) The secretary of the Company (the “Secretary”) shall attend all meetings of the Board of Directors, and shall record all the proceedings of the meetings in a book to be kept for that purpose, and shall perform like duties for the standing committees of the Board of Directors when required.

(ii) The Secretary shall keep all documents described in Article VII and such other documents as may be required under the Act. The Secretary shall perform such other duties and have such other authority as may be prescribed elsewhere in this Agreement or from time to time by the President or the Board of Directors. The Secretary shall have the general duties, powers and responsibilities of a secretary of a corporation.

(iii) If the Board of Directors chooses to appoint an assistant secretary or assistant secretaries, the assistant secretaries, in the order of their seniority, in the absence, disability or inability to act of the Secretary, shall perform the duties and exercise the powers of the Secretary, and shall perform such other duties as the President or the Board of Directors may from time to time prescribe.

Section 4.05. Management Matters. The Board of Directors shall take all action which may be necessary or appropriate (a) for the continuation of the Company’s valid existence as a limited liability company under the Laws of the State of Delaware (and of each other jurisdiction in which such existence is necessary to enable the Company to conduct the business in which it is engaged) and (b) for the maintenance, preservation and operation of the business of the Company and the Subsidiaries in accordance with the provisions of this Agreement and applicable Laws and regulations. The Board of Directors shall file or cause to be filed for recordation in the office of the appropriate authorities of the State of Delaware, and in the proper office or offices in each other jurisdiction in which the Company or any Subsidiary is formed or qualified, such certificates (including certificates of limited liability companies and fictitious name certificates) and other documents as are required by the applicable Laws of any such jurisdiction or as are required to reflect the identity of the Members and the amounts of their respective Capital Accounts.

Section 4.06. Liability of Members.

(a) No Personal Liability. Except as otherwise required by applicable Law or as expressly set forth in this Agreement, no Member shall have any personal liability whatsoever in such Person’s capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company or any Subsidiary or to any other

third party, for the debts, liabilities, commitments or any other obligations of the Company or any Subsidiary or for any losses of the Company or any Subsidiary.

(b) Limited Liability of the Member. The liability of each Member, in its capacity as such, cannot exceed (i) the amount of its Capital Contributions, if any, (ii) its share of any assets and undistributed profits of the Company and (iii) the amount of any distributions wrongfully distributed to it to the extent set forth in the Act, except to the extent such Member (including through its nominated Directors) has breached this Agreement.

(c) Return of Distributions. In accordance with the Act and the Laws of the State of Delaware, a member of a limited liability company may, under certain circumstances, be required to return amounts previously distributed to such member. It is the intent of the Members that no distribution to any Member pursuant to Article V of this Agreement shall be deemed a return of money or other property paid or distributed in violation of the Act. The payment of any such money or distribution of any such property to a Member shall be deemed to be a compromise within the meaning of the Act, and the Member receiving any such money or property shall not be required to return to any Person any such money or property, except to the extent such Member has breached this Agreement with respect to the receipt of such money or property. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of any Director or other Member.

Section 4.07. Exculpation; Indemnification by the Company.

(a) Exculpation. To the fullest extent permitted by Law, no past, present or future Member or Affiliate of any of the foregoing, or Tax Matters Member or Director or any of their respective employees (each, in their capacity as such, a “Covered Person”), shall be liable to the Company or the Subsidiaries or any other Person who is bound by this Agreement for any or all losses, damages, claims, judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including reasonable attorneys’ fees and expenses) (collectively, “Expenses”) actually incurred by reason of any act or omission performed or omitted by such Covered Person on behalf of the Company or the Subsidiaries and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person in accordance with this Agreement, except to the extent such Expenses are due to the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by, such Covered Person (each, a “Covered Claim”). The provisions of this Agreement, to the extent that they restrict, limit or eliminate the duties and liabilities of a Covered Person to the Company or any Subsidiary or the Members otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities at law or in equity of such Covered Person, and each Member to the fullest extent permitted by applicable Law hereby waives any right to make any claim, bring any action or seek any recovery based on such other duties or liabilities for breach thereof.

(b) Indemnification. Subject to the limitations and conditions provided in this Section 4.07, each Covered Person who was or is made a party or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or arbitrative, with respect to a Covered Claim (a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding (a “Covered Proceeding”), by reason of the fact that he, she or it, or a Person of which he, she or it is or was a Covered Person, shall be indemnified by the Company or, to the extent applicable, a Subsidiary to the fullest extent permitted by applicable Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such Law permitted the Company to provide prior to such amendment), against all Expenses actually incurred by such Person in connection with such Covered Proceeding, and indemnification under this Section 4.07 shall continue as to a Covered Person who has ceased to serve in the capacity which initially entitled such Covered Person to indemnity under this Agreement. The indemnification provided in this Section 4.07 is recoverable only out of the assets of the Company and/or the Subsidiaries, and no Member, Director, Officer or employee of the Company or any Subsidiary has any personal liability, or obligation to make a capital contribution, on account thereof.

(c) Reliance. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and the Subsidiaries and upon such information, opinions, reports or statements presented to the Company or the Subsidiaries by any person as to matters the Covered Person reasonably believes are within such other person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, Net Profits or Net Losses of the Company and the Subsidiaries, or the value and amount of assets or reserves or contracts, agreements or other undertakings that would be sufficient to pay claims and obligations of the Company and the Subsidiaries or to make reasonable provision to pay such claims and obligations, or any other facts pertinent to the existence and amount of assets from which distributions to the Members or creditors of the Company and the Subsidiaries might properly be paid.

(d) Advancement of Expenses. The Company shall advance reasonable expenses (including reasonable attorneys’ fees) incurred by or on behalf of a Covered Person who is a Director or Officer in connection with a Covered Proceeding (ignoring for purposes of this clause (d) the exception contained therein relating to gross negligence or willful misconduct or breach of this Agreement) within 20 days after receipt by the Company from such Covered Person of a statement requesting such advances from to time, provided such statement provides reasonable documentary evidence of such expenses and provides a written undertaking by the Covered Person to repay any and all advanced expenses in the event such Covered Person is ultimately determined by a Court of competent jurisdiction not to be entitled hereunder to indemnification by the Company.

(e) Indemnification Agreements and D&O Insurance. The Company may enter into agreements with Directors to provide for indemnification consistent with the

terms and conditions set forth in this Section 4.07. The Company and the Subsidiaries will purchase and maintain director and officer liability insurance at appropriate levels of coverage as determined by the Board of Directors.

(f) Nature of Rights. The rights granted pursuant to this Section 4.07 shall be deemed contract rights, and no amendment, modification or repeal of this Section 4.07 shall have the effect of limiting or denying any such rights with respect to actions taken or Covered Proceedings arising prior to any amendment, modification or repeal.

(g) Third-party Beneficiaries. Notwithstanding anything to the contrary in this Agreement, each of the Members and the Company acknowledges and agrees that the Covered Persons have relied on this Section 4.07 and are express third-party beneficiaries of Section 4.07 with the express right and ability to enforce the Company’s obligations under Section 4.07 directly against the Company to the full extent of such obligations. The Company and each Member shall not in any way hinder, compromise or delay the rights and ability of the Covered Persons to enforce any of the Company’s obligations under this Section 4.07 directly against the Company to the full extent of such obligations. Notwithstanding anything to the contrary in this Agreement, (a) this Section 4.07 may not be amended, modified, supplemented or waived in any manner and (b) the other provisions of this Agreement may not be amended, modified, supplemented or waived in any manner that adversely affects any Covered Person’s rights to enforce any of the Company’s obligations under this Section 4.07 directly against the Company without the prior written consent of each of the Members, which consent may be withheld, conditioned or delayed for any reason in their sole discretion.

(h) Survival. This Section 4.07 shall survive any termination of this Agreement. It is expressly acknowledged that the indemnification provided in this Section 4.07 could involve indemnification for negligence or under theories of strict liability.

Section 4.08. Participation by FNBO in Debt Financings. CDEC and FNBO acknowledge that if the Company undertakes debt financing for the purpose of an acquisition (other than a Qualifying Acquisition) or otherwise with respect to the Business, the Company shall provide FNBO the opportunity to compete to participate in such financing as administrative agent for lenders and as a lender; for the avoidance of doubt, any such determination shall be made by CDEC or the Company, as applicable, in its sole discretion. CDEC and FNBO acknowledge that if the Company undertakes debt financing for the purpose of a Qualifying Acquisition, the Company shall provide FNBO the opportunity to participate in such financing as administrative agent for lenders and as a lender so long as FNBO’s final proposal for such financing is on terms and conditions at least as favorable to CDEC (or its Affiliates) or Company, as applicable, as the best other final proposal received by CDEC (or its Affiliates) or Company, as applicable, for the same financing and FNBO’s participation is not otherwise prohibited by CDEC’s or its Affiliates other financing arrangements; provided, however, FNBO shall not be required to so participate.

Section 4.09. Non-Competition; Acquisitions.

(a) Exclusivity; Merchant Customers. CDEC and FNBO agree and acknowledge that, subject to Section 4.09(b) and (c), the Company shall be the exclusive Person through which CDEC and FNBO and their respective Affiliates shall acquire Merchant Customers and that the Company shall be the exclusive Person to which CDEC and FNBO and their respective Affiliates refer potential Merchant Customers and Independent Sales Organizations requiring BIN sponsorship, except as set forth in this Agreement. CDEC and FNBO will not, through any direct sales force, other alliance or third party channel not controlled by CDEC or FNBO or their respective Affiliates (for the avoidance of doubt, such entities include Independent Sales Organizations, Agent Banks, independent agents and Third Party Referral Providers), solicit directly or indirectly financial interests in U.S. based merchant card acquiring agreements other than through the Company (for the avoidance of doubt, such restriction does not include CDEC’s or its Affiliate’s backend processing business, which does not include BIN sponsorship), except as set forth in this Agreement. CDEC acknowledges and agrees that FNBO and its Affiliates, through the normal course of business of their consumer and commercial banking operations, shall have the right to market and provide financial service products, including automated clearing house (ACH) services, remote deposit capture services, cash and treasury management services, as such services are currently being or proposed to be provided by FNBO and its Affiliates and any natural extension of such services, so long as such services do not constitute part of the Business (collectively, the “Permitted Business Activities”). CDEC acknowledges and agrees that such Permitted Business Activities shall not constitute part of the Business and the conduct thereof shall not violate this Section 4.09.

(b) Exclusivity; U.S. Based Acquisitions.

(i) Qualifying Acquisitions. During the term of this Agreement, CDEC and FNBO and their respective Affiliates will not directly or indirectly acquire an interest in a U.S. based merchant portfolio or U.S. based merchant acquiring and processing business in which either CDEC or FNBO or their respective Affiliates would obtain a financial interest in Merchant Customer contracts (a “Qualifying Acquisition”) other than through the Company; provided, however, that this Section 4.09 shall not apply to the acquisition by CDEC or its Affiliates of a merchant portfolio or merchant acquiring and processing business that is primarily based outside the U.S. and either (x) such portfolio or business has no assets or operations in the U.S. or (y) such portfolio or business has assets or operations in the U.S. that acquires or processes less than $2 billion in Visa and MasterCard credit sales volume for the trailing 12 month period.

(ii) FNBO Capital Contribution Election. Notwithstanding Sections 4.01(h), 5.04 or 5.05, if a Qualifying Acquisition closes and FNBO’s percentage of Units owned would be reduced as a result, FNBO may elect to make a Capital Contribution in any amount not to exceed that which would allow it to maintain its same percentage of issued Units as of the time immediately prior to such closing. In connection therewith, the Company shall provide FNBO fifteen (15) days’ prior written notice of the anticipated closing of the Qualifying Acquisition. Within five (5) days of such notice, FNBO shall deliver a written notice (the

“FNBO Capital Contribution Notice”) to CDEC and the Company stating that FNBO has either (i) elected to exercise such right in which case the notice shall contain the amount of FNBO’s Capital Contribution or (ii) elected not to exercise such right. If FNBO fails to deliver the FNBO Capital Contribution Notice within such period, FNBO will be deemed to have elected not to exercise such right. FNBO must make its Capital Contribution concurrently with the closing of the Qualifying Acquisition.

(iii) Supermajority Voting. For purposes of clarification, no supermajority voting provisions of Section 4.01(h) shall apply with respect to a vote to approve a Qualifying Acquisition.

(iv) Put or Call Upon Dilution. If FNBO and its Affiliates collectively hold fewer than 15% of the total Units issued and outstanding after one or more Qualifying Acquisitions are made and FNBO has either made or failed to make a Capital Contribution pursuant to Section 4.09(b)(ii) sufficient to maintain its ownership of Units in an amount equal to or greater than such percentage, CDEC shall have the right to call FNBO’s Units pursuant to Section 4.09(d) and FNBO shall have the right to put its Units to CDEC pursuant to Section 4.09(e).

(c) Large Acquisitions. If CDEC or its Affiliates determines to pursue the acquisition of an interest in (i) a business primarily domiciled outside of the United States which includes a Qualifying Acquisition of a business that acquires or processes over $2 billion in Visa and MasterCard credit sales volume for the trailing 12 months or (ii) any Qualifying Acquisition of a business that is determined by CDEC or its Affiliates to have Enterprise Value of $295 million or more (collectively or singularly, a “Large Acquisition”) and consummates such Large Acquisition, CDEC shall have the right to call FNBO’s Units and FNBO shall have the right to put its Units to CDEC (or its Affiliates) (in each case regardless of whether or not the Large Acquisition is made through the Company), pursuant to this Section 4.09. Large Acquisitions shall not be subject to the supermajority voting provisions of Section 4.01(h) and may be made by CDEC or its Affiliates as an exception to this Section 4.09 through or outside the Company at the election of CDEC or its Affiliates, as applicable. If CDEC or its Affiliates determines to approve a Large Acquisition (or at such earlier time as determined by CDEC or its Affiliates, as applicable), CDEC shall deliver a written notice (the “CDEC Large Acquisition Notice”) to FNBO stating that CDEC or its Affiliates have made such determination, including the current anticipated closing date of the Large Acquisition (the “Projected Closing Date”). Notwithstanding the foregoing, CDEC acknowledges that if CDEC or its Affiliates determine to pursue a Large Acquisition, CDEC or its Affiliates, as applicable, may, in its sole discretion, provide FNBO the opportunity to compete to participate in the Large Acquisition through an equity investment or debt financing.

(d) CDEC Call Right. If CDEC (or its Affiliates) determines to approve a Large Acquisition (regardless of whether or not the Large Acquisition is made through the Company), upon the closing of such Large Acquisition, CDEC shall have the right to purchase from FNBO, and FNBO shall be obligated to sell to CDEC (or its Affiliates), all

of FNBO’s Units by paying cash in an amount determined pursuant to Section 4.09(f) (the “CDEC Call Right”). Within five (5) days following the CDEC Large Acquisition Notice, CDEC shall deliver a written notice (the “CDEC Call Notice”) to FNBO stating that concurrent with the closing of such Large Acquisition CDEC has either (i) elected to exercise the CDEC Call Right in which case the notice shall represent a binding obligation, conditioned solely upon the closing of the Large Acquisition, of CDEC (or its Affiliates) to purchase all of FNBO’s Units pursuant to this Section 4.09 or (ii) elected not to exercise the CDEC Call Right. If CDEC fails to deliver the CDEC Call Notice within such period, CDEC will be deemed to have elected not to exercise the CDEC Call Right.

(e) FNBO Put Right. If CDEC has delivered a CDEC Call Notice and elected not to exercise the CDEC Call Right or CDEC is deemed to have elected not to exercise such right pursuant to Section 4.09(d), FNBO shall have the right to sell to CDEC, and CDEC (or its Affiliates) shall be obligated to buy from FNBO, concurrent with the closing of such Large Acquisition, all of FNBO’s Units by paying cash in an amount determined pursuant to Section 4.09(f) (the “FNBO Put Right”). Within ten (10) days of the delivery to FNBO of the CDEC Large Acquisition Notice, FNBO shall deliver a written notice (the “FNBO Put Notice”) to CDEC stating that FNBO has either (x) elected to exercise its FNBO Put Right in which case the notice shall represent a binding obligation, conditioned solely upon the closing of the Large Acquisition, by FNBO to sell all of its Units pursuant to this Section 4.09 or (y) elected not to exercise its FNBO Put Right. If FNBO fails to deliver the FNBO Put Notice within such period, FNBO will be deemed to have elected not to exercise its FNBO Put Right.

(f) Valuation and Purchase Price. If either the CDEC Call Right or the FNBO Put Right is exercised, CDEC and FNBO shall each appoint a valuation agent of nationally recognized stature in the valuation of businesses similar to the Business within at least five (5) days after receipt of the CDEC Call Notice or the FNBO Put Notice, as the case may be, and shall require each valuation agent to provide its final valuation no later than thirty (30) days after such appointment. Each valuation agent shall perform a valuation of the Units. If the valuations differ by less than 10% of the higher valuation, the average of the two valuations shall be the value of the Units. If the valuations differ by 10% of the higher valuation or more, the valuation agents shall appoint a third valuation agent of nationally recognized stature in the valuation of businesses similar to the Business who shall value the Units and provide its final valuation no later than thirty (30) days after its appointment. The valuation experts shall be instructed to determine the fair value of the Units (without knowledge of the results of the first two valuations) by determining the fair market value of the Company as if sold as a going concern, using such methods as the valuation experts shall deem appropriate, and then dividing that value by the total number of Units calculated on a fully diluted basis, the result being the fair value of each Unit outstanding as of such date. The value of the Units will be the average of the two valuations with the smallest difference in the reported value unless one valuation is the average of the other two valuations, in which case such valuation shall be the value of the Units (measured on an absolute basis) (the “Unit Value”). Any seller of Units shall deliver such Units free and clear of all Liens and shall provide representations and warranties or indemnities as are customary in a transaction of this

nature, including with respect to capacity, title and authority. For purposes of this Section 4.09(f), the fair market value of the Company means the fair market value of the Company as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arm’s-length transaction, taking into account all relevant factors.

(g) Termination of FNBO Rights. If a Large Acquisition is consummated, either through the Company or CDEC or its Affiliates, and neither the CDEC Call Right nor the FNBO Put Right is exercised, or shall be deemed not to have been exercised, then each Class B Unit shall automatically, and without further action by any Member, the Board of Directors or the Company, be converted into a Class C Unit of the Company and all Class B Units as of the consummation of such Large Acquisition shall no longer be considered outstanding for any purpose. No differences between the Class B Units and Class C Units will be taken into account in converting the Class B Units to Class C Units for purposes of valuation of such Units. For purposes of such conversion, the Class C Units shall have no rights or privileges in any respect whatsoever with regard to the Company except as set forth in this Section 4.09(g), but shall be subject to all the restrictions or obligations of membership control herein, and FNBO (or any other holder of Class B Units) notwithstanding anything in this Agreement to the contrary, shall have no rights or privileges as a Member in the Company with respect thereto other than (i) such rights or privileges required by the Act, (ii) the economic rights to allocations and distributions as set forth in Article V hereof applicable to Class B Units immediately prior to the consummation of such Large Acquisition, (iii) the economic rights upon dissolution of Company pursuant to Section 6.02 and under the Act, (iv) rights or obligations contained in Sections 2.04(b), 4.06, 4.07, 4.08, 4.09(e), 4.09 (f), 4.09(h), 6.03(f), 7.02, 8.03, 8.05 and 8.11 and (v) in connection with a Sale of the Company to receive the same price for each Class C Unit as CDEC receives for each of its Units, with no differences between the Class C Units and other Units being taken into account for purposes of valuing the Class C Units. The rights associated with the Class B Units formerly outstanding immediately prior to the consummation of the Large Acquisition shall be deemed terminated and of no further force or effect whatsoever, including, without limitation, with respect to the current supermajority voting provisions of Section 4.01(h) and the appointment of Directors. Immediately upon consummation of the Large Acquisition (unless otherwise directed by CDEC in writing) and notwithstanding anything in this Agreement to the contrary, all the Class B Directors shall be removed from the Board of Directors automatically without further action by any Member, the Company or the Board of Directors. CDEC shall be permitted to amend this Agreement without the approval of the Board of Directors or any other Member to reflect the terms and conditions set forth in this Section 4.09(g); provided, however that this Section 4.09(g) and the sections of this Agreement recited in this Section 4.09(g) with respect to which FNBO continues to have rights may not be amended without the prior written consent of FNBO. For purposes of clarification, New SPC shall be subject to the terms and conditions of this Section 4.09(g) as contemplated by Section 3.05 hereof. To the extent any class voting is required pursuant to the Act, this Agreement, or otherwise, the Class C Units will vote collectively in the same class as the Class A Units.

(h) Survival of CDEC Call Right and FNBO Put Right. If neither the CDEC Call Right nor the FNBO Put Right is exercised, or shall be deemed not to have been

exercised, in connection with a Large Acquisition, such rights shall survive and continue with respect to each subsequent Large Acquisition until such time, if any, either of such rights is exercised and all of FNBO’s Units are purchased by CDEC or its Affiliates.

(i) Growth of Company’s Business. Consistent with and in furtherance of Section 4.09(a) and (b), CDEC and FNBO each acknowledge that they shall cause the Company to use commercially reasonable efforts to grow its Business through means that include the acquisition of Merchant Customers, merchant portfolios and merchant acquiring and processing businesses and entering into agreements with additional sponsoring banks to support such growth.

(j) Company Structure. In connection with a Large Acquisition, CDEC shall either cause such Large Acquisition to be made through the Company or shall cause the Company to be contributed to the new acquisition structure containing the Large Acquisition. In the event of such contribution to a new entity, each Member hereby consents to such action, and shall provide reasonable cooperation necessary to effect any such transfer, provided only that the rights contained in Section 4.09(g)(ii), (iii), (iv) and (v) are preserved in connection with such transfer. For the avoidance of doubt, any obligations of the Members pursuant to this Agreement may at the discretion of CDEC be similarly transferred or replicated.

Section 4.10. Preferred Providers. TSYS, FNBO and their respective Affiliates shall be preferred service providers with respect to services necessary or incidental to the conduct of the Business by the Company and its Subsidiaries, including, without limitation, plastic embossing, prepaid processing, terminal related services and other similar services, pursuant to the terms and conditions of the agreements regarding such services. The provision of such services by any of TSYS, FNBO or their respective Affiliates to the Company shall be on an arm’s length basis and on pricing terms no less favorable from those available from an independent third party providing a commensurate quality of service.

ARTICLE V

CAPITAL CONTRIBUTIONS; ALLOCATIONS; DISTRIBUTIONS

Section 5.01. Capital Account Creation. There shall be established for each Member on the books of the Company a Capital Account, which shall be increased or decreased in the manner set forth in this Agreement. On February 25, 2010, FNBO made an initial Capital Contribution to the Company in exchange for Units and then transferred two percent (2%) of such Units to New SPC, thereby causing the Company to become a partnership for federal income tax purposes. On March 31, 2010, as contemplated by the Investment Agreement, FNBO made another Capital Contribution to the Company in exchange for additional Units and then transferred two percent (2%) of such additional Units to New SPC. In each case, New SPC succeeded to the Capital Account attributable to the Units that it acquired from FNBO. On the Effective Date, in connection with CDEC’s purchase of 51 Class A Units, representing 51% of the Units, from FNBO pursuant to the Investment Agreement, CDEC succeeded to the Capital Account attributable to such Class A Units. The Members’ Capital Accounts as of the Effective Date are as set forth on Schedule I.

Section 5.02. Capital Account Negative Balance. A Member shall not have any obligation to the Company or to any other Member to restore any negative balance in the Capital Account of such Member.

Section 5.03. Allocations of Net Income and Net Loss.

(a) Timing and Amount of Allocations of Net Income and Net Loss. The rules set forth below in Sections 5.03(b) and (c) shall apply for the purpose of determining each Member’s allocable share of the items of income, gain, loss and expense of the Company comprising Net Income or Net Loss of the Company for each fiscal year (or as of the end of such other period or periods as circumstances otherwise require or allow), determining special allocations of other items of income, gain, loss and expense, and adjusting the balance of each Member’s Capital Account to reflect the aforementioned general and special allocations. For each fiscal year, the Regulatory Allocations in Section 5.03(c) shall be made immediately prior to the general allocations of Section 5.03(b).

(b) General Allocations.

(i) Hypothetical Liquidation. The items of income, gain, loss and expense of the Company comprising Net Income or Net Loss for a fiscal year shall be allocated among the Persons who were Members during such fiscal year in a manner that will, as nearly as possible, cause the Capital Account balance of each Member at the end of such fiscal year to equal the excess (which may be negative) of:

(A) the amount of the hypothetical distribution (if any) that such Member would receive if, on the last day of the fiscal year, (1) all Company assets, including cash, were sold for cash in an amount equal to their Gross Asset Values, taking into account any adjustments thereto for such fiscal year, (2) all Company liabilities were satisfied in cash according to their terms (limited, with respect to each Nonrecourse Liability or Member Nonrecourse Debt in respect of such Member, to the Gross Asset Values of the assets securing such liability), and (3) the net proceeds thereof (after satisfaction of such liabilities) were distributed in full pursuant to Section 6.02(c)(ii), over

(B) the sum of (1) the amount, if any, without duplication, that such Member would be obligated to contribute to the capital of the Company, (2) such Member’s share of Company Minimum Gain determined pursuant to Regulations Section 1.704-2(g) and (3) such Member’s share of Member Nonrecourse Debt Minimum Gain determined pursuant to Regulations Section 1.704-2(i)(5), all computed as of the hypothetical sale described in Section 5.03(b)(i)(A) above.

For purposes of the foregoing hypothetical sale described in Section 5.03(b)(i)(A), all assets and liabilities of any entity that is wholly owned by the Company and

disregarded as an entity separate from the Company for federal income tax purposes shall be treated as assets and liabilities of the Company.

(ii) Loss Limitation. Notwithstanding anything to the contrary in this Section 5.03(b), the amount of items of Company expense and loss allocated pursuant to this Section 5.03(b) to any Member shall not exceed the maximum amount of such items that can be so allocated without causing such Member to have an Adjusted Capital Account Deficit at the end of any fiscal year, unless each Member would have an Adjusted Capital Account Deficit. All such items in excess of the limitation set forth in this Section 5.03(b)(ii) shall be allocated first, to Members who would not have an Adjusted Capital Account Deficit, pro rata, in proportion to their Capital Account balances, adjusted as provided in clauses (i) and (ii) of the definition of Adjusted Capital Account Deficit, until no Member would be entitled to any further allocation, and thereafter, to all Members, pro rata, in proportion to their ownership of Units.

(i) Notwithstanding Section 5.03(b):

(A) In the event that there is a net decrease during a fiscal year in either Company Minimum Gain or Member Nonrecourse Debt Minimum Gain, then notwithstanding any other provision of this Article V, each Member shall receive such special allocations of items of Company income and gain as are required in order to conform to Regulations Section 1.704-2. It is intended that this Section 5.03(c)(i)(A) qualify and be construed as a “minimum gain chargeback” and a “chargeback of partner nonrecourse debt minimum gain” within the meaning of such Regulations, which shall be controlling in the event of a conflict between such Regulations and this Section 5.03(c)(i)(A).

(B) If any Member unexpectedly receives an adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to the Member in an amount and manner sufficient to eliminate, to the extent required by such Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible. It is intended that this Section 5.03(c)(i)(B) qualify and be construed as a “qualified income offset” within the meaning of Regulations Section 1.704-1(b)(2)(ii)(d), which shall be controlling in the event of a conflict between such Regulations and this Section 5.03(c)(i)(B).

(C) In the event that a Member has an Adjusted Capital Account Deficit, such Member shall be specially allocated items of Company income and gain (consisting of a pro rata portion of each item of income and gain of the Company for such fiscal year in accordance with

Regulations Section 1.704-1(b)(2)(ii)(d)) in the amount of such excess as quickly as possible; provided, however, that any allocation under this Section 5.03(c)(i)(C) shall be made only if and to the extent that a Member would have a deficit Capital Account balance in excess of such sum after all allocations provided for in this Article V have been tentatively made as if this Section 5.03(c)(i)(C) were not in this Agreement.

(D) Any Nonrecourse Deductions for any fiscal year shall be specially allocated to the Members pro rata in accordance with their Units. Any Member Nonrecourse Deductions for any fiscal year shall be specially allocated to the Member(s) that bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable, in accordance with Regulations Section 1.704-2(i).

(E) To the extent that an adjustment to the adjusted tax basis of any Company assets pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of its Units, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Members in accordance with their interests in the Company in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Members to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

(F) The allocations set forth in Sections 5.03(c)(i)(A), (B), (C) (D) and (E) (the “Regulatory Allocations”) are intended to comply with certain regulatory requirements, including the requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Section 5.03(b), the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred.

(G) If any Member (1) is required to make an indemnity payment to the Company pursuant to Article VII of the Investment Agreement or (2) pays any amount which gives rise to an item of in the nature of expense or loss of the Company, the loss giving rise to the indemnity payment or the item attributable to the payment shall be allocated to such Member.

(ii) For any fiscal year during which a Member’s interest in the Company is assigned by such Member, the portion of the Net Income and Net Loss of the Company that is allocable in respect of such Member’s interest shall be apportioned between the assignor and the assignee of such Member’s interest using any permissible method under Code Section 706 and the Regulations thereunder, as determined by the Board of Directors.

(d) Required Tax Allocations.

(i) Section 704(b) Allocations.

(A) Each item of income, gain, loss or deduction for federal income tax purposes that corresponds to an item of income, gain, loss or expense that is either taken into account in computing Net Income or Net Loss or is specially allocated pursuant to Section 5.03(c) (a “Book Item”) shall be allocated among the Members in the same proportion as the corresponding Book Item is allocated among them pursuant to Section 5.03(b) or (c) of this Agreement; provided, however, that such tax allocations shall be made, and, for purposes of such tax allocation, all references to fiscal years shall be construed, in accordance with the requirements of Section 706 of the Code.

(B) (1) If the Company recognizes Depreciation Recapture (as defined below) in respect of the sale of any Company asset, (x) the portion of the gain on such sale which is allocated to a Member pursuant to Section 5.03(b) or (c) shall be treated as consisting of a portion of the Company’s Depreciation Recapture on the sale and a portion of the Company’s remaining gain on such sale under principles consistent with Regulations Section 1.1245-1; and (y) if, for federal income tax purposes, the Company recognizes both “unrecaptured Section 1250 gain” (as defined in Section 1(h) of the Code) and gain treated as ordinary income under Section 1250(a) of the Code in respect of such sale, the amount treated as Depreciation Recapture under Section 5.03(d)(i)(B)(1)(x) shall be comprised of a proportionate share of both such types of gain.

(2) For purposes of this Section 5.03(d)(i)(B)(2), “Depreciation Recapture” means the portion of any gain from the disposition of an asset of the Company which, for federal income tax purposes (x) is treated as ordinary income under Section 1245 of the Code; (y) is treated as ordinary income under Section 1250 of the Code; or (z) is “unrecaptured Section 1250 gain” as such term is defined in Section 1(h) of the Code.

(ii) Section 704(c) Allocations. In the event any property of the Company is credited to the Capital Account of a Member at a value other than its tax basis (whether as a result of a contribution of such property or a revaluation of such property pursuant to subparagraph (b) of the definition of “Gross Asset Value”), then allocations of taxable income, gain, loss and deductions with

respect to such property shall be made in accordance with the “traditional” allocation method described in Regulation Section 1.704-3(b).

(iii) Tax Items Allocable to Particular Members. If the Company is required to recognize items of income, gain, deduction or loss for tax purposes that is attributable to a particular Member, such items shall be allocated to such Member.

(iv) Credits. All tax credits shall be allocated among the Members as determined by the Board of Directors in its sole and absolute discretion, consistent with applicable Law.

The tax allocations made pursuant to this Section 5.03(d) shall be solely for tax purposes and shall not affect any Member’s Capital Account or share of non-tax allocations or distributions under this Agreement.

(e) Withholding. Each Member hereby authorizes the Company to withhold and to pay over any taxes payable by the Company or any of its Affiliates as a result of the participation by such Member (or any Assignee of, or Successor in Interest to, such Member) in the Company. If and to the extent that the Company shall be required to withhold any taxes, such Member shall be deemed for all purposes of this Agreement to have received a distribution from the Company as of the time such withholding is required to be paid, including for purposes of Section 5.04(a), Section 5.04(c) or Section 6.02. To the extent that the aggregate of such deemed distributions to a Member for any period exceeds the distributions to which such Member is entitled for such period, the amount of such excess shall be considered a demand loan from the Company to such Member, with interest at an interest rate of 5% compounded annually, which interest shall be treated as an item of Company income until discharged by such Member by repayment. The Company may, in the sole discretion of the Board of Directors, elect to satisfy such demand loan out of distributions to which such Member would otherwise be subsequently entitled. The withholdings referred to in this Section 5.03(e) shall be made at the maximum applicable statutory rate under applicable tax Law unless the Board of Directors receives documentation, satisfactory to the Board of Directors, to the effect that a lower rate is applicable, or that no withholding is applicable.

(f) Other Tax Matters.

(i) In the event that the Code or any Regulations require allocations of items of income, gain, loss, deduction or credit different from those set forth in this Section 5.03, the Board of Directors is hereby authorized to make new allocations in reliance on the Code and such Regulations, provided that if any such new allocation shall be proposed to be made in a manner that disproportionately adversely impacts any Member, such Member shall have the right to consent to such allocation (such consent not to be unreasonably withheld, conditioned or delayed). No such new allocation shall give rise to any claim or cause of action by any Member.

(ii) All decisions and other matters concerning the computation and allocation of items of income, gain, loss, deduction and credits among the Members, and accounting procedures not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Board of Directors in its sole and absolute discretion. Any determination made pursuant to this Section 5.03(f)(ii) by the Board of Directors shall be conclusive and binding on all Members.

(g) Allocation of Excess Nonrecourse Liabilities. For purposes of determining each Member’s share of excess nonrecourse liabilities, if any, of the Company in accordance with Regulations Section 1.752-3(a)(3), the Members’ interests in Company profits shall be in proportion to their Units.

Section 5.04. Distributions. Subject to any restrictions in any indebtedness of the Company or the Subsidiaries, the Board of Directors shall cause the Company to distribute to the Members, pro rata according to the number of Units held by such Member, cash distributions equal to the amount necessary to satisfy the “Quarterly Estimated Tax Liability with respect to the Company’s Income” (the “Quarterly Distributions”).

(a) Amount of Distribution. The “Quarterly Estimated Tax Liability with respect to the Company’s Income” shall mean the quarterly estimated tax liability calculated using the annualized income installment method of Code Section 6655(e)(2)(A) (installment calculations based on income annualized on a 3/3/6/9 method, with a true-up of annual estimated taxes by March 15 of the following year based on income from a full fiscal year, and with any excess distributions previously made to the Members to be applied against the next distribution owed under this Section 5.04(a)) assuming that (i) the Company has a single Member, (ii) the items of income, gain, deduction, loss and credit (all as determined for federal income tax purposes and in accordance with Code Section 704(b), but without regard to any Code Section 704(c) gains or adjustments pursuant to any Code Section 754 election) in respect of the Company were the only such items entering into the computation of tax liability of such Member for the fiscal year in respect of which the Quarterly Distribution was made and (iii) the taxable income of the Member determined in accordance with clause (ii) was subject to tax at the highest marginal effective rate of federal, state and local income tax applicable to a corporation resident and doing all of its business in New York City, taking account of any difference in rates applicable to particular items of income, and any allowable deductions in respect of such state and local taxes in computing such Member’s liability for federal income taxes. No account shall be taken of any items of deduction or credit attributable to an interest in the Company that may be carried back or carried forward from any other taxable year. The amount of hypothetical tax liability determined under clause (iii) in excess of Quarterly Distributions made previously with respect to such taxable year shall be distributed to the Members pro rata according to the number of Units held by each Member.

(b) Time for Making Quarterly Distributions. Quarterly Distributions shall be made on or before three Business Days before the end of the quarter to which the Quarterly Distribution relates, with an additional Distribution made, if necessary, on or

before March 1 each year to true-up estimated taxes based on the actual 12 months of income for the preceding fiscal year.

(c) Other Distributions. The Board of Directors may cause the Company to make distributions other than the Quarterly Distributions at any time, in cash or in kind, as shall be determined by a vote of the Board of Directors to the extent that such distributions are permissible under the Act and/or any indebtedness of the Company or the Subsidiaries (such distributions, together with the Quarterly Distributions, “Distributions”). All Distributions shall be made pro rata to each Member according to the number of Units held by each Member.

(d) Successors. For purposes of determining the amount of Distributions under this Section 5.04, each Member shall be treated as having received amounts received by its predecessors in respect of any of such Member’s Units.

Section 5.05. Capital Contributions. Upon not less than 10 Business Days prior written notice from the Company, the Company may request (each such request being referred to herein as a “Capital Call”) that each Member make, and each Member shall make, a Capital Contribution in the amount specified in the Capital Call (such Capital Call notice shall contain the per Unit value following such Capital Contribution as determined by the Board of Directors); provided that each Capital Call shall be approved by the Board of Directors in accordance with the terms and conditions of this Agreement (including Section 4.01(h) to the extent applicable). Each cash Capital Contribution to the Company shall be made by wire transfer of immediately available funds in United States dollars to an account designated by the Company. If a Member fails to timely make a Capital Contribution in the amount specified in a Capital Call, the Member shall have no liability for the failure to make such Capital Contribution; provided, however, that its percentage ownership of Units will be reduced proportionate with the Capital Contributions that are made pursuant to the Capital Call. Notwithstanding the foregoing, each Member is obligated to make a Capital Contribution in the amount specified in a Capital Call that was approved by at least one director appointed by such Member.

ARTICLE VI

WITHDRAWAL; DISSOLUTION; TRANSFER OF
MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS

Section 6.01. Member Withdrawal. No Member shall have the power or right to withdraw, otherwise resign, or require the repayment of its Capital Contribution (if any) or the redemption of its Units, prior to the dissolution and winding up of the Company, except pursuant to a Transfer of Units permitted under this Agreement as provided in Section 6.03. Notwithstanding anything to the contrary contained in the Act, in no event shall any Member be deemed to have withdrawn from the Company or ceased to be a Member upon the occurrence of any event, unless such Member, after the occurrence of any such event, indicates in a written instrument that such Member has so withdrawn.

Section 6.02. Dissolution.

(a) Events. The Company shall be dissolved and its affairs shall be wound up on the first to occur of the following:

(i) the written consent of the Members collectively holding 75% of the Units then held by all Members;

(ii) the termination of the legal existence or the membership in the Company of the last remaining Member (unless within ninety (90) days (A) such Member’s personal representative or nominee agrees in writing to continue the Company and to be admitted as a Member or (B) a Member is otherwise admitted in accordance with this Agreement, in each case effective as of the occurrence of the event that terminated the continued membership of such Member);

(iii) any event that makes it unlawful for the entire or any material part of the Business of the Company and its Subsidiaries to continue;

(iv) the consent of the Members collectively holding a majority of the Units then held by all Members following a sale of all or more than 90% (by value) of the assets of the Company and the Subsidiaries or, to the extent the nonconsenting Members are not materially and adversely affected, a sale of substantially all the assets of the Company and the Subsidiaries; and

(v) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act.

Except as provided in this Agreement, the death, retirement, resignation, expulsion, incapacity, bankruptcy or dissolution of a Member, or the occurrence of any other event that terminates the continued membership of a Member in the Company, shall not cause a dissolution of the Company, and the Company shall continue in existence subject to the terms and conditions of this Agreement.

(b) Actions Upon Dissolution. When the Company is dissolved, the business and property of the Company and the Subsidiaries shall be wound up and liquidated by the Board of Directors or, in the event of the unavailability of the Board of Directors, such Member or other liquidating trustee as shall be named by the Board of Directors (such Person, the “Liquidator”). In such event, the Liquidator shall have the full right and discretion to manage such process, including the power to prosecute and defend suits, collect debts, dispose of property, settle and close the business of the Company and the Subsidiaries, discharge the liabilities of the Company and the Subsidiaries, pay reasonable costs and expenses incurred in the winding up, distribute remaining assets to Members in accordance with this Agreement and execute and file a certificate of cancellation under the Act.

(c) Priority. Within 120 calendar days after the effective date of dissolution of the Company, whether by expiration of its full term or otherwise, the assets of the Company shall be distributed in the following manner and order:

(i) first, to the satisfaction (whether by payment or the reasonable provision for payment) of the liabilities of the Company to creditors, in the order of priority established by the instruments creating or governing such obligations and to the extent otherwise permitted by Law, including to the establishment of reserves which the Liquidator considers necessary for the reasonable provision for payment for (A) any known contingent, conditional or unmatured contractual claims against the Company, (B) any claim against the Company that is the subject of a pending action, suit or proceeding to which the Company is a party and (C) any claim that is not known to the Company or has not arisen but that, based on the facts known to the Company, are likely to arise or to become known to the Company within ten years after the date of dissolution, which reserves shall be held by the Liquidator for the purpose of disbursing such reserves in payment in respect of any of the aforementioned claims. At the expiration of such period as the Liquidator shall deem advisable, any balance of any such reserves not required to discharge such liabilities or obligations shall be distributed as provided in Section 6.02(c)(ii); and

(ii) second, to the Members pro rata according to the number of Units held by each Member as of the effective date of such dissolution.

(d) No Recourse. Each Member shall look solely to the assets of the Company for all distributions with respect to the Company and shall have no recourse therefor, upon dissolution or otherwise, against any Director or Member. No Member shall have any right to demand or receive property other than cash upon dissolution of the Company, provided that, for the sake of clarity, the Liquidator shall have the right to cause the Company to make distributions of property other than cash upon dissolution of the Company.

(e) Cancellation of Certificate. On completion of the distribution of the Company assets as provided in this Agreement, the Company shall file a certificate of cancellation with the Secretary of State of the State of Delaware and take such other actions as may be necessary to terminate the Company, and the Company shall at such time be terminated.

Section 6.03. Transfer by Members.

(a) Transfers Generally.

(i) No Member may Transfer any Units (or any part of its Membership Interest), except as provided in this Section 6.03. No Member may transfer any Units to any Person listed on Schedule II without the prior written consent of FNBO or CDEC for so long as it holds Units. No Member may Transfer any part of a Membership Interest that is not an Economic Interest other than pursuant to a Transfer of a Unit. No Member may Transfer any Units (or any part of its Membership Interest) before the earlier to occur of the second anniversary of the Effective Date and the consummation of the IPO without the prior written consent of all other Members, except in connection with a Change of

Control approved by the Board of Directors, provided that, subject to Section 4.09(g), for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, FNBO’s (and only FNBO’s) prior written consent in respect of the Class B Units shall be required. Thereafter, any Member may Transfer any Units (or any part of its Membership Interest) so long as such Transfer is in compliance with this Section 6.03. CDEC and FNBO or their respective Affiliates can each pledge its Units pursuant to its credit facility or other financing arrangements in effect as of the Effective Date or that may become effective in the future, provided that any such pledge by CDEC or FNBO and their respective Affiliates shall not affect any obligations in this Agreement. For the avoidance of doubt, nothing in this Section 6.03 shall affect CDEC’s rights in connection with Section 4.09(j).

(ii) Any Member who Transfers any Units in accordance with this Section 6.03 shall cease to be a Member with respect to such Units and shall no longer have any rights or privileges of a Member with respect to such Units, provided that no Member shall cease to be a Member upon the collateral assignment of, or the pledging or granting of a security interest in, its Units until the foreclosure of such pledge or security interest.

(iii) Any Person who acquires any Units in accordance with this Section 6.03 shall agree in writing to assume the responsibility of the transferring Member with respect to such Units. In the event that such Person fails to do so entirely or fails to do so in a timely manner, such Person shall be deemed by its acceptance of the benefits of the acquisition of such Units to have agreed to be subject to, and bound by, all of the terms and conditions of this Agreement to which the predecessor in such Units was subject, and by which such predecessor was bound, and for all purposes shall be deemed to be a Member.

(iv) No Transfer shall be given effect unless the transferee delivers to the Company the representations reasonably determined by the Board, and no Member may Transfer any of such Member’s Units (including any Economic Interest therein) unless (A) the Board of Directors determines, in its reasonable discretion, that such Transfer or attempted Transfer would not cause the Company to be treated as a “publicly traded partnership” within the meaning of Code Section 7704, it being understood that such determination shall be made promptly and in good faith, or (B) the transferring Member delivers an opinion of counsel with a determination that such Transfer or attempted Transfer would not cause the Company to be treated as a “publicly traded partnership” within the meaning of Code Section 7704 (provided such legal counsel is of national reputation and specializes in such matters of determination);

(v) Notwithstanding any provision of this Agreement to the contrary, no Transfer of Units may be made except in compliance with all federal, state and other applicable Laws, including federal and state securities Laws.

(vi) Any attempted Transfer of Units by any Member not in accordance with this Section 6.03 shall be ineffective, null and void ab initio.

(vii) Notwithstanding clause (i) above, a Transfer of Units by a Member to any of the following Persons shall be permitted and constitute a “Permitted Transfer” and shall not be subject to the Right of First Purchase, Rights of First Refusal (with respect to paragraph (x) below only), the Tag-Along Rights or give rise to Drag Along Rights (except as otherwise provided below):

(x) (A) any Person who is a direct or indirect wholly owned subsidiary of such Member or an Affiliate of such Member or (B) any Person who owns, directly or indirectly, a majority of the equity interests of such Member prior to such Transfer (any such Person in clause (A) or (B), a “Permitted Affiliate”), or

(y) subject to Section 2.04(b)(iv), any Person (except Persons listed in Schedule II), in the event that, as a result of any change in applicable Law or the scope of business activities in which the Company and the Subsidiaries are engaged, ownership by such Member of such Member’s Units is no longer legally permissible, as determined reasonably and in good faith by such Member’s legal counsel (provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination); provided, however, that to the extent such Member is given time to divest its Units, such Member shall comply with the Right of First Refusal and the parties shall agree to shorter time periods for notice and response thereunder as reasonably necessary, and such Member uses its reasonable efforts to have the purchaser of its Units in a divestiture also purchase the Units of the other Members that would otherwise be entitled to participate in the Tag-Along Rights;

(b) Right of First Purchase.

(i) Except in connection with or following a Large Acquisition and subject to Section 4.09(g) and 6.04, if a bona fide offer is received to (i) sell, assign, transfer or dispose of all or substantially all of the assets of the Company or Opco; (ii) sell, assign, transfer or otherwise dispose of more than 50% of the equity interests in the Company or Opco; or (iii) consummate a merger of the Company or Opco with another entity pursuant to which the holders of the issued and outstanding equity interests of the Company or Opco immediately prior to the merger would hold less than 50% of the issued and outstanding equity interests in the surviving entity after the merger (collectively, a “Sale of the Company”) and CDEC determines to accept such offer, CDEC will give FNBO prior written notice of CDEC’s desire to do so along with the name of the offeree, the proposed sale price and terms of the offer and a copy of any written offer (the “ROFP CDEC Notice”). FNBO shall have the irrevocable right to first consummate as the purchaser the Sale of the Company (the “Right of First Purchase”) at the price and on the terms specified in the offer if it is an all cash offer, or pursuant to the

valuation process set forth in this Section 6.03(b) if the offer is not an all cash offer or per the other applicable terms specified in the offer by providing CDEC within thirty (30) days of the date of the ROFP CDEC Notice written notice of FNBO’s exercise of its Right of First Purchase (the “ROFP FNBO Notice”). If a ROFP CDEC Notice is not timely given, CDEC may proceed with the Sale of the Company on terms in the aggregate no less favorable than as notified to FNBO pursuant to the FNBO CDEC Notice. In the event of a Sale of the Company, the Right of First Refusal in paragraph (c) below shall not be applicable.

(ii) Offers that are not all cash will be subject to the following valuation process. If FNBO exercises its Right of First Purchase with respect to an offer that is not all cash, CDEC and FNBO shall each appoint a valuation agent of nationally recognized stature in the valuation of businesses substantially similar to the Business. Each valuation agent shall perform a valuation of CDEC’s Units. If the valuations differ by less than 10% of the higher valuation, the average of the two valuations shall be the value of CDEC’s Units. If the valuations differ by 10% of the higher valuation or more, the valuation agents shall appoint a third valuation agent of nationally recognized stature in the valuation of businesses substantially similar to the Business, who shall value CDEC’s Units. The value of the Units will be the average of the two valuations with the smallest difference in the reported value unless one valuation is the average of the other two valuations, in which case such valuation shall be the value of the Units (measured on an absolute basis) (the “Unit Value”) and the amount payable by FNBO for CDEC’s Units. The valuation experts shall be instructed to determine the fair value of the Units (without knowledge of the results of the first two valuations) by determining the fair market value of the Company as if sold as a going concern, using such methods as the valuation experts shall deem appropriate, and then dividing that value by the total number of Units calculated on a fully diluted basis, the result being the fair value of each Unit outstanding as of such date. For purposes of this Section 6.03(b), the fair market value of the Company means the fair market value of the Company as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arm’s-length transaction, taking into account all relevant factors.

(iii) The closing of the Sale of the Company shall occur within thirty (30) days after the date of the ROFP FNBO Notice if the offer in the ROFP CDEC Notice is an all cash offer and within thirty (30) days after the date of the final valuation determined pursuant to this Section 6.03(b) if the offer in the ROFP CDEC Notice is not an all cash offer. At the closing of the Sale of the Company, FNBO shall deliver an amount in cash via wire transfer of immediately available funds equal to the value of CDEC’s Units determined in accordance with this Section 6.03(b).

(iv) FNBO’s rights pursuant to this Section 6.03(b) shall terminate at such time as FNBO ceases to be a Member.

(i) If, at any time before the consummation of the IPO and subject to the Right of First Purchase (if applicable), any Member (a “Transferring Member”) desires to Transfer all or any part of its Units to any Person other than a Permitted Affiliate (the “Offered Units”), then such Transferring Member shall submit and deliver a written notice, which notice shall disclose the number of Offered Units proposed to be Transferred (the “ROFR Notice”), to all Members other than the Transferring Member and any of its Affiliates (the “ROFR Offerees”), it being understood that such Transferring Member shall include in the ROFR Notice the material terms of any offer that it has received or is contemplating with respect to the Offered Units.

(ii) Each ROFR Offeree shall have the right (the “Rights of First Refusal”) to provide to the Transferring Member, within 20 days of the date of the ROFR Notice (the “ROFR Offer Period”), an irrevocable offer to acquire such ROFR Offeree’s Pro Rata Portion (but not less than all of its Pro Rata Portion) of the Offered Units and, subject to Section 6.03(c)(iii), such additional Units as such ROFR Offeree may offer to purchase in the event that other ROFR Offerees do not make an irrevocable offer to acquire such other ROFR Offeree’s Pro Rata Portion of the Offered Units, upon the price, terms and conditions set forth in the ROFR Notice (each, a “Proposed Offer”).

(iii) In the event that any other ROFR Offerees do not make an irrevocable offer to acquire such other ROFR Offeree’s Pro Rata Portion of the Offered Units, then all other ROFR Offerees who so elect shall have the right to accept the offer to purchase any remaining Offered Units, on a pro rata basis with all other electing ROFR Offerees (or on such other basis as the electing ROFR Offerees may mutually agree). The closing for any purchase of the Offered Units by the ROFR Offerees pursuant to this Section 6.03(c) shall take place within the later of thirty (30) days after the expiration of the ROFR Offer Period or upon the receipt of approval from any applicable Governmental Entity or the expiration of any “waiting period” requirements pursuant to applicable Law.

(iv) Subject to the Tag-Along Rights, in the event that the ROFR Offerees do not elect to exercise their right to purchase all of the Offered Units, the Transferring Member may sell all or an amount less than all of the remaining Offered Units to a Person (a “Proposed Transferee”) at and upon the price and other terms and conditions that are at least as favorable to the Transferring Member as those set forth in the Proposed Offer (such Transfer, a “Permitted ROFR Transfer”). In the event that the Transferring Member has not consummated a Permitted ROFR Transfer, or has not entered into a definitive agreement regarding a Permitted ROFR Transfer, within a 120-day period, the Transferring Member shall not thereafter Transfer such Offered Units, without first providing a new ROFR Notice to the ROFR Offerees in the manner provided above, and such proposed Transfer shall again be subject to the requirements of this Section 6.03(c).

(d) Tag-Along Rights.

(i) Tag-Along Notice. Prior to the consummation of the IPO and subject to the Right of First Purchase (if applicable), if the Transferring Member proposes to Transfer to any Person other than a Permitted Affiliate (including, for the sake of clarity, any Participating ROFR Offeree) (collectively, the “Tag-Along Purchasers”) Units, then such Transferring Member shall provide to all other Members (each, a “Tag-Along Offeree”) a notice disclosing the identity of the Tag-Along Purchasers, the number of Units proposed to be Transferred (the “Tag-Along Units”), the total number of Units owned by the Transferring Member, the price and other terms and conditions of such proposed Transfer (a “Tag-Along Notice”) within the earlier of five days following the execution of the agreement with respect to the proposed Transfer and 15 days prior to consummation of the proposed Transfer.

(ii) Each Tag-Along Offeree shall have the right to elect to exercise its tag-along rights pursuant to this Section 6.03(d) (the “Tag-Along Rights”) by providing written notice to such Transferring Member no later than ten (10) days after the date of the Tag-Along Notice (the “Tag-Along Notice Deadline”).

(iii) If any Tag-Along Offeree exercises its Tag-Along Right (a “Participating Tag-Along Offeree”), such Tag-Along Offeree shall have the right to Transfer to the Tag-Along Purchasers, as a condition to such proposed Transfer by the Transferring Member, a Pro Rata Portion of such Tag-Along Offeree’s Units, upon the same price, terms and conditions as those of the proposed Transfer as set forth in the Tag-Along Notice, provided that if such Transfer would be impermissible under applicable Law or adversely affect the Company’s and the Subsidiaries’ business in the good faith determination of the Board of Directors, then the Transferring Member shall allocate to the Transferring Member and the Participating Tag-Along Members their respective Pro Rata Portions of the maximum number of Units that would be permitted to be Transferred under applicable Law and would not adversely affect the Company’s and the Subsidiaries’ business in the good faith determination of the Board of Directors.

(iv) The Transferring Member and each Participating Tag-Along Offeree shall Transfer the Units to be acquired by the Tag-Along Purchaser (determined in accordance with Section 6.03(d)(iii)) at the closing of the Transfer contemplated by the Tag-Along Notice; provided that the terms and conditions of such transaction shall be on such terms and conditions that are no more favorable to the Transferring Member and each Participating Tag-Along Offeree as those set forth in the Tag-Along Notice.

(v) If no Member elects to exercise its Tag-Along Rights, the Transferring Member may Transfer the Units to the Tag-Along Purchaser as contemplated by the applicable Tag-Along Notice within ninety (90) days of the expiration of the Tag-Along Notice Deadline. Any such Units not sold within

such 90-day period shall again be subject to the requirements of this Section 6.03(d).

(vi) The Transferring Member shall use all reasonable efforts to cause the Tag-Along Purchaser to agree to acquire all Units identified by the Participating Tag-Along Offerees upon the same terms and conditions as applicable to the Transferring Member, as provided in this Agreement. If the Tag-Along Purchaser is unwilling or unable to acquire all Units proposed to be included in such sale upon such terms, then the Transferring Member may elect either to: (A) cancel such proposed sale or (B) allocate to the Transferring Member and the Participating Tag-Along Members their respective Pro Rata Portions of the maximum number of Units that the Tag-Along Purchaser is willing to purchase. Notwithstanding anything herein to the contrary, the exercise of Tag-Along Rights by a Tag-Along Offeree and the Transfer of a Tag-Along Offeree’s Units shall be conditioned upon the Tag-Along Offeree’s ability to make normal and customary representations and warranties to the Tag-Along Purchaser, including as to ownership and title to the relevant Units.

(e) Drag Along Rights.

(i) If, at any time before the consummation of the IPO and subject to the Right of First Purchase (if applicable), any Member holding a majority of the Units then held by all Members (the “Initiating Member”) desires to effect a Transfer to a Person constituting a Change of Control (the “Drag Along Sale”), then the Initiating Member may elect to exercise its rights pursuant to this Section 6.03(e) (the “Drag Along Rights”) by providing written notice to all Members other than the Initiating Member (each, a “Drag Along Member,” and collectively, the “Drag Along Members”). In order to exercise the Drag Along Rights, the Initiating Member must give written notice to the Drag Along Members disclosing the identity of the proposed transferee(s), the Person or Persons, if any, that control the proposed transferee(s), the number and classes of Units proposed to be Transferred and the terms and conditions, including price, of the proposed Transfer (the “Drag Along Notice”) within the earlier of five days following the execution of the agreement with respect to the proposed Transfer and ten (10) days prior to the proposed date upon which the contemplated Change of Control is to be effected.

(ii) If the Initiating Member exercises its Drag Along Right, except to the extent contrary to applicable Law, each Drag Along Member shall consent and raise no objections to such Change of Control and shall take all actions reasonably necessary or desirable to consummate such Change of Control, including by (A) Transferring to the proposed transferee(s) its Pro Rata Portion of its Units, (B) delivering such Units at the closing, free and clear of all Liens, (C) if Member approval of the transaction is required, voting its Units in favor thereof, (D) approving, executing and delivering any and all documents, certificates and instruments, necessary to the Transfer of such Drag Along Member’s Units pursuant to this Section 6.03(e), and (E) if required by the

Initiating Member, making the same representations, warranties, covenants and indemnities and agreements as the Initiating Member made in connection with such Change of Control, provided that (1) any indemnity is several and not joint and a Drag Along Member’s indemnity exposure with respect to any representations made thereby is subject to a cap on indemnity not exceeding 20% of such Drag Along Member’s pro rata share of the proceeds from the Drag Along Sale (other than with respect to the capacity, title and authority, which shall be capped at such Drag Along Member’s pro rata share of the proceeds from such Drag Along Sale), and (2) the Initiating Member shall consult with any Member owning 17.5% or more of the outstanding Units of the Company regarding the representations being given to the acquirer in a Drag Along Sale, (F) waiving any and all dissenters’ rights, appraisal rights or similar rights in connection with the Drag Along Sale that such Member might otherwise have and (G) permitting any escrow of proceeds of any such Change of Control to be withheld on a pro rata basis among all Members participating in such Change of Control. Each Member hereby grants to each of the Directors, each acting singly, an irrevocable proxy, coupled with an interest, to vote all Units owned by such Member or over which such Member has voting control, and to take such other actions to the extent necessary to carry out the provisions of this Section 6.03(e), in the event of any breach by such Member of its obligations under this Section 6.03(e).

(iii) The Transfer of Units by the Drag Along Members pursuant to this Section 6.03(e) shall be at the same price and on the same terms and conditions as the Initiating Member shall be Transferring its Units in such transaction or series of related transactions, except that the Drag Along Members shall each bear their ratable share (based on the number of Units sold) of the liabilities and expenses incurred in connection with such Change of Control, but only to the extent that such liabilities and expenses are incurred for the benefit of the Initiating Member and all Drag Along Members and are not otherwise paid by the Company or by an entity acquiring the Company or its assets, and liabilities and expenses incurred by any Members on its own behalf, including indemnities, shall not be considered liabilities and expenses incurred in connection with such Change of Control, it being understood that the price per Unit shall take into account all benefits (other than the benefits derived pursuant to Section 6.03(e)(v)) being obtained by the Initiating Member or any of its Affiliates in connection with, or as a consequence of, such Change of Control.

(iv) The Drag Along Right shall not apply to any Change of Control that would require a supermajority consent of the Board of Directors pursuant to Section 4.01(h), unless such consent has been obtained. For the sake of clarity, the Right of First Refusal shall not apply with respect to any Transfer made in connection with the exercise of the Drag Along Right, but the Right of First Refusal shall apply in connection with any Transfer prior to any Member exercising its Drag Along Right.

(v) If, upon the date ninety (90) days following the date of a particular Drag Along Notice (subject to extension for an additional sixty (60) days, in the

reasonable discretion of the Initiating Member), the Initiating Member has not consummated the Drag Along Sale, then each of the Drag Along Members shall be released from their obligations under such Drag Along Notice, such Drag Along Notice shall be null and void, and it shall be necessary for another Drag Along Notice to be furnished, and the terms and provisions of this Section 6.03(e) to be complied with, in order to consummate a Drag Along Sale pursuant to this Section 6.03(e).

(f) Buy Out.

(i) (X) CDEC or its designee shall have the right to purchase from each of the other Members, and each of the other Members shall be obligated to sell to CDEC or its designee and (Y) each of the Members (other than CDEC shall have the right to cause CDEC or its designee to purchase, and CDEC or its designee shall be obligated to purchase, all Units owned by each of the Members (other than CDEC on each of the fifth, sixth and seventh anniversary dates of this Agreement. If the purchase/sale right is exercised pursuant to this paragraph, CDEC or its designee shall purchase the Units by paying cash in an amount determined pursuant to the following valuation process no later than thirty (30) days following such applicable anniversary date. Each Member shall provide to CDEC or its designee such representations, warranties and indemnities as are customary in a transaction of this nature, including with respect to capacity, title and authority. CDEC and FNBO shall each appoint a valuation agent of nationally recognized stature in the valuation of businesses similar to the Business at least ninety (90) days prior to the fifth, sixth or seventh (as applicable) anniversary date of this Agreement (unless CDEC and FNBO agree in writing that they are not going to exercise the buy out rights set forth in this Section 6.03(f)) and shall require each valuation agent to provide its final valuation no later than sixty (60) days prior to the applicable anniversary date of this Agreement. Each valuation agent shall perform a valuation of the Units. If the valuations differ by less than 10% of the higher valuation, the average of the two valuations shall be the value of the Units. If the valuations differ by 10% of the higher valuation or more, the valuation agents shall appoint a third valuation agent of nationally recognized stature in the valuation of businesses similar to the Business who shall value the Units and provide its final valuation no later than thirty (30) days prior to the applicable anniversary date of this Agreement. The value of the Units will be the average of the two valuations with the smallest difference in the reported value unless one valuation is the average of the other two valuations, in which case such valuation shall be the value of the Units (measured on an absolute basis) (the “Unit Value”) and the amount payable by CDEC or its designee for the Units.

(ii) The valuation experts shall be instructed to determine the fair value of the Units (without knowledge of the results of the first two valuations) by determining the fair market value of the Company as if sold as a going concern, using such methods as the valuation experts shall deem appropriate, and then dividing that value by the total number of Units calculated on a fully diluted basis, the result being the fair value of each Unit outstanding as of such date. For

purposes of this Section 6.03(f), the fair market value of the Company means the fair market value of the Company as between a willing buyer and a willing seller not under a compulsion to buy or sell in an arm’s-length transaction, taking into account all relevant factors.

(g) Deadlock.

(i) A “Deadlock” shall occur if (x) the members of the Board of Directors appointed by one Member vote against any action (which is not subsequently withdrawn) requiring the supermajority vote of the Board of Directors pursuant to Section 4.01(h) and the members of the Board of Directors appointed by the other Member vote for such action and (y) the Board of Directors negotiating in good faith cannot resolve such disagreement within the thirty (30) days immediately following (a) such vote and (b) after escalation of such matter to good faith negotiations between the Chief Executive Officers of FNBO and CDEC.

(ii) If a Deadlock has occurred and has not been resolved pursuant to Section 6.03(g)(i), CDEC may initiate this Buy/Sell provision within thirty (30) days after the expiration of the 30 day period specified in Section 6.03(g)(i). If CDEC has not delivered the Triggering Notice (as defined below) to the Responding Party (as defined below) within such period, then CDEC’s right to initiate this Buy/Sell provision will be terminated with respect to such Deadlock. If, during a Deadlock, CDEC (the “Requesting Party”), in its sole and absolute discretion, elects to sell all of the Units owned by CDEC and its Affiliates or otherwise elects to purchase all of the Units owned by the other Member(s) and its/their Affiliates (collectively, the “Responding Party”) (provided that the Requesting Party is not in material default at such time under this Agreement), the following provisions shall apply (the “Buy/Sell Provisions”):

(A) The Requesting Party shall deliver a written notice (the “Triggering Notice”) to the Responding Party. The Triggering Notice shall include the Company Price, set forth the details of the Buy/Sell proposal and the matters required pursuant to Section 6.03(g)(ii)(C) and shall contain an unconditional offer by the Requesting Party to, at the election of the Responding Party, either (i) sell (in which case the Requesting Party shall be known as the “Selling Party” and the Responding Party shall be known as the “Purchasing Party”) its Units to the Responding Party or to one or more third parties designated by the Responding Party or (ii) acquire, or designate one or more third parties that shall acquire (in which case the Responding Party shall be known as the “Selling Party” and the Requesting Party shall be known as the “Purchasing Party”), the Units then owned by the Responding Party, in either case within the time periods specified in this Section 6.03(g)(ii). The “Company Price” means the aggregate value assigned by the Requesting Party to the Company. The price (the “Buy/Sell Price”) that shall be paid by the Purchasing Party for the Units of the Selling Party

(and its Affiliates) shall be the amount the Selling Party (and its Affiliates) would receive if the Company Price were distributed or paid to the Members pursuant to Section 6.02(c).

(B) The Triggering Notice shall also specify whether the preference of the Requesting Party is to be a Selling Party or a Purchasing Party (the “Preferred Option”).

(C) The Triggering Notice must describe the manner (the “Release Requirements”) in which the Purchasing Party will release the Selling Party (and its Affiliates) of its guarantees, pledges and other repayment obligations, if any, with respect to all Liabilities as a Member. Any proposal which does not include the information required pursuant to Sections 6.03(g)(ii)(A) and (C) shall not qualify as a Triggering Notice for purposes of this Section 6.03(g)(ii).

(D) Within thirty (30) days after the date of receipt of the Triggering Notice by the Responding Party, the Responding Party shall deliver a written notice to the Requesting Party declaring its intention to be either the Selling Party or the Purchasing Party subject to the terms proposed in the Triggering Notice (the “Responding Party Notice”).

(E) If the Responding Party fails or is deemed to have failed to deliver the Responding Party Notice within the thirty (30) day period specified in Section 6.03(g)(ii)(D), the Responding Party will be deemed to have elected and accepted the Requesting Party’s Preferred Option either to sell or to acquire, as the case may be, the Units at the Buy/Sell Price and otherwise in the manner specified in the Triggering Notice.

(F) If the Responding Party chooses or, pursuant to Section 6.03(g)(ii)(E), is deemed to have chosen to purchase the Requesting Party’s Units, then (i) the Responding Party shall purchase the Requesting Party’s Units at the Buy/Sell Price and otherwise in the manner specified in the Triggering Notice and satisfy the Release Requirements applicable to the Requesting Party and (ii) the Requesting Party shall sell its Units at the Buy/Sell Price and otherwise in the manner specified in the Triggering Notice.

(G) If the Responding Party chooses or, pursuant to Section 6.03(g)(ii)(E), is deemed to have chosen to sell its Units to the Requesting Party, then (i) the Requesting Party shall purchase the Responding Party’s Units at the Buy/Sell Price and otherwise in the manner specified in the Triggering Notice and satisfy the Release Requirements applicable to the Responding Party and (ii) the Responding Party shall sell its Units at the Buy/Sell Price and otherwise in the manner specified in the Triggering Notice.

(H) The transfer of any Units pursuant to this Section 6.03(g)(ii) shall be effected on a Business Day selected by the Purchasing Party (the “Buy/Sell Closing Date”) that is not later than one hundred eighty (180) days after delivery of the Triggering Notice; and notice of such Buy/Sell Closing Date shall be delivered by the Purchasing Party to the Selling Party in writing not less than sixty (60) days in advance thereof. The Buy/Sell Price shall be paid, in immediately available funds, against the execution of the corresponding assignment agreement to evidence the transfer of the Selling Party’s Units to the Purchasing Party or its designee. The transferred Units shall be delivered free and clear of all Liens and the transferor shall provide representations and warranties or indemnities as are customary in a transaction of this nature, including with respect to capacity, title and authority.

(I) Each of the Members shall pay its own expenses in connection with such purchase and sale, including all costs, expenses and taxes each is obligated to pay by applicable Law, in order to consummate the transfers and other transactions contemplated by these Buy/Sell Provisions.

(J) If, through no fault of the Selling Party, the Purchasing Party is unable to complete the transactions specified in this Section 6.03(g)(ii) on or prior to the Buy/Sell Closing Date, the Purchasing Party shall be prohibited from exercising any rights as a Selling Party pursuant to the Buy/Sell Provisions with respect to such Deadlock but the Selling Party shall have the option to be exercised within five (5) days to become the Purchasing Party.

Section 6.04. Transfers and Other Actions in Connection With Public Offering.

(a) Prior to the third anniversary of the Effective Date and other than with respect to an IPO in connection with or following a Large Acquisition: subject to Section 4.09(g), if the Board of Directors has approved the IPO where CDEC does not retain a majority of the voting rights with respect to the Units, CDEC shall prior to consummating any such IPO afford FNBO the right to exercise its Right of First Purchase with respect to all Units owned by CDEC, its Affiliates or others. The purchase price for such Units shall be determined based on the valuation process set forth for a Buy Out under Section 6.03(f).

(b) If the Company undertakes an IPO approved in accordance with this Agreement, the Members shall take such actions, including causing the Company to contribute the operating business into a successor corporation, as may be necessary to give effect to such IPO; provided that reasonable efforts shall be made at the request of any Member to allow such Member to convert its Units into an interest in any successor corporation on a tax-free basis (excepting any tax attributable to any deemed distribution to FNBO pursuant to Section 752) (“Tax-Free Basis”), and provided further that no such action shall be taken if such structure shall adversely affect any Member (other than “adverse” tax effects that are inherent in using a corporate form as opposed to a partnership (for tax purposes) form); it being understood that if the IPO

restructuring is not effected on a Tax-Free Basis with respect to any Member, CDEC shall use its commercially reasonable efforts to have the IPO entity enter into a “tax receivable agreement” or otherwise compensate the Company or the Members for tax attributes or benefits provided to such entity (other than tax attributes or benefits attributable to any deemed distribution to FNBO pursuant to Section 752), (e.g., tax benefits received by the IPO entity upon the taxable exchange of Company interests by such Members for IPO entity shares, without adversely affecting the IPO price or terms, and any such agreements or compensation shall be issued to the Members who provided such tax attributes or benefits in accordance with the amount of tax attributes or benefits provided by each such Member.)

Section 6.05. Admission or Substitution of New Members.

(a) Admission. The Board of Directors shall have the right, subject to the provisions of Section 6.03, to admit as a Substitute Member or an Additional Member any Person who acquires Units pursuant to the terms of this Agreement from a Member or from the Company, respectively, it being understood that no approval of the Board of Directors shall be required to admit a Person as a Substitute Member if such Person acquires Units in compliance with all of the provisions of this Agreement. Concurrently with the admission of a Substitute Member or an Additional Member, the Board of Directors shall forthwith cause any necessary papers to be filed and recorded and notice to be given wherever and to the extent required showing the substitution of a transferee as a Substitute Member in place of the Transferring Member, or the admission of an Additional Member, all at the expense, including payment of any professional and filing fees incurred, of the Substitute Member or the Additional Member.

(b) Conditions. Subject to Section 6.03(a)(iii), the admission of any Person as a Substitute Member or Additional Member shall be conditioned upon such Person’s written acceptance and adoption of all the terms and provisions of this Agreement, by execution and delivery of a counterpart signature page to this Agreement. Any such Person shall constitute solely an Assignee for purposes of this Agreement until satisfaction of the proceeding condition.

(c) Assignees. Any Assignee that does not become admitted as a Member shall have no rights (other than those rights pertaining solely to such Assignee’s Economic Interest), but all of the obligations (other than those pertaining to voting), of a Member under this Agreement.

Section 6.06. TSYS as Public Company. FNBO acknowledges that TSYS is a public company listed currently on the New York Stock Exchange and that, as such, no transfer of any equity interest in TSYS shall constitute a Transfer of Units for purposes of this Agreement. In addition, nothing herein shall be deemed to limit or prohibit a TSYS Change of Control Event or otherwise create any rights or obligations with respect to CDEC’s Units in connection with a TSYS Change of Control Event. For purposes of this Agreement, “TSYS Change of Control Event” means any (i) merger, consolidation or other business combination of TSYS that results in the shareholders of TSYS receiving consideration in exchange for their shares in TSYS, (ii) the transfer of shares of TSYS representing 50% or more of the voting power of TSYS, to a Person or group of related Persons, (iii) transaction in which a majority of the Board of Directors

of TSYS following such transaction is comprised of Persons other than the members of such Board of Directors immediately prior thereto, (iv) a so-called “going private” or similar transaction, (v) sale of all or substantially all of the assets of TSYS or (vi) any other similarly structured transaction resulting in a transfer of control of TSYS.

ARTICLE VII

REPORTS TO MEMBERS; TAX MATTERS

Section 7.01. Books of Account. Appropriate books of account shall be kept by the Company and the Subsidiaries, in accordance with the generally accepted accounting principles of the United States (“GAAP”), at the principal place of business of the Company, and each Member shall have access to all books, records and accounts of the Company and the Subsidiaries and the right to make copies thereof for any purpose reasonably related to the Member’s interest as a member of the Company, in each case under such conditions and restrictions as the Board of Directors may reasonably prescribe.

Section 7.02. Reports. All reference to Members in this Section 7.02 refer to only those Members holding at least 1% of the Units then held by all Members.

(a) Monthly Financial Reports. As promptly as practicable, but in no event later than thirty (30) days after the end of each month, the Board of Directors shall cause to be prepared and delivered to each Member unaudited monthly consolidated financial statements of the Company and the Subsidiaries for the immediately preceding month.

(b) Quarterly Financial Reports. As promptly as practicable, but in no event later than 45 days after the end of the first three fiscal quarters and sixty (60) days after the end of the fourth fiscal quarter, as the case may be, of each fiscal year, the Board of Directors shall cause to be prepared and delivered to each Member unaudited quarterly consolidated financial statements of the Company and the Subsidiaries for the immediately preceding quarter, prepared in accordance with GAAP.

(c) Quarterly Tax Reports. As promptly as possible, but in no event later than three Business Days prior to the estimated tax due date of each fiscal quarter, the Board of Directors shall cause to be prepared and delivered to each Member a statement of the Quarterly Estimated Tax Liability with respect to the Company’s Income calculated pursuant to Section 5.04(a).

(d) Annual Financial Reports. As promptly as practicable after the close of each fiscal year of the Company, but in no event later than ninety (90) days after the end of each fiscal year, the Board of Directors shall cause an examination of the financial statements of the Company and the Subsidiaries as of the end of each such fiscal year to be made in accordance with GAAP, as in effect on the date thereof, by a firm of certified public accountants selected by the Board of Directors. Within ninety (90) days after the close of each fiscal year, a copy of the audited financial statements of the Company and the Subsidiaries, including the report of such certified public accountants, shall be furnished to each Member and shall include, as of the end of such fiscal year:

(i) a statement prepared by the Company setting forth the balance of each Member’s Capital Account and the amount of that Member’s allocable share of the Company’s items of Net Income or Net Loss and deduction, capital gain and loss or credit for such year; and

(ii) a balance sheet, a statement of income and expense and a statement of changes in cash flows of the Company and the Subsidiaries for that fiscal year.

(e) Schedules K-1. Within sixty (60) days after the close of each taxable year, the Board of Directors shall cause to be provided to each Member an estimate of taxable income for such taxable year. Within 180 days after the close of each taxable year, the Board of Directors shall cause to be provided completed IRS Schedule K-1 to each Member and such other financial, tax or other information as reasonably requested by a Member at such times as may be required to comply with any applicable public disclosure, external financial reporting, federal, state or local tax filings or any other legal requirements to which such Member is subject.

(f) Members’ Tax Filings. To the extent permitted by the Code, each Member agrees to file all tax returns consistently with the treatment of the Company as a partnership with respect to the determination of the taxable income of the Company.

(g) Determinations. All determinations, valuations and other matters of judgment required to be made for nontax accounting purposes under this Agreement shall be made in good faith by the Board of Directors.

(h) Reports and Information Required by Regulatory Authorities. The Board of Directors shall cause to be prepared and delivered promptly to each Member any reports or information related to the Company or the Business required or requested by banking regulatory authorities of FNBO and its Affiliates upon request by FNBO.

Section 7.03. Fiscal Year. The fiscal year of the Company shall end on December 31 of each calendar year unless otherwise determined by the Board of Directors in accordance with Section 706 of the Code.

Section 7.04. Independent Auditor. The initial independent auditor of the Company shall be KPMG LLP.

Section 7.05. Certain Tax Matters.

(a) Certain Tax Elections.

(i) Partnership Treatment. The Company shall not file any election pursuant to Regulations Section 301.7701-3(c) to be treated as an entity other than a partnership. The Company shall not elect, pursuant to Section 761(a) of the Code, to be excluded from the provisions of subchapter K of the Code. If requested by the Board of Directors, each Member agrees to provide the Company with such assistance as would be required (including signing any election forms) to cause any new direct or indirect Subsidiaries acquired by the

Company or any Subsidiary or organized by the Company or any Subsidiary to elect to be treated as a partnership or disregarded entity for U.S. federal tax purposes, such election to be effective on or before the date such new Subsidiary is acquired or organized.

(ii) Elections by the Company. Except as provided in Section 7.05(a)(i), relating to the tax classification of the Company, and Section 7.05(a)(v), relating to Section 754 elections, the Board of Directors may make, but shall not be obligated to make, any tax election provided under the Code, or any provision of state, local or foreign tax Law. All decisions and other matters concerning the computation and allocation of items of income, gain, loss, deduction and credit among the Members, and accounting procedures not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Board of Directors. Any determination made pursuant to this Section 7.05(a)(ii) by the Board of Directors shall be conclusive and binding on all Members.

(iii) Elections by Members. Without the consent of the Board of Directors, no Member shall make the election provided by Section 732(d) of the Code, relating to the basis of property distributed by a Company to certain Members. In the event any Member makes any tax election that requires the Company to furnish information to such Member to enable such Member to compute its own tax liability, or requires the Company to file any tax return or report with any tax authority, or adjust the basis of Company property, in any case that would not be required in the absence of such election made by such Member, the Board of Directors may, as a condition to furnishing such information, or filing such return or report, or making such basis adjustment, require such member to pay to the Company any incremental expenses incurred in connection therewith.

(iv) Member Obligations. Promptly upon request, each Member shall provide the Board of Directors with any information related to such Member necessary to allow the Company to comply with any tax reporting, tax withholding or tax payment obligations of the Company.

(v) Section 754 Elections. As required by the Investment Agreement, the Company shall make a Section 754 election on its tax return for the short taxable year caused by CDEC’s purchase of the Class A Units from FNBO, which resulted in a partnership termination under Section 708(b)(1)(B) of the Code, such election to be effective for CDEC’s benefit as provided by Regulations Section 1.708-1(b)(5). Accordingly, the basis of Company property shall be adjusted under Section 734(b) and Section 743(b) of the Code, as follows:

(A) the Board of Directors shall make such adjustments to the definition of Gross Asset Value and Net Income and Net Loss, and to the Regulatory Allocations required by Section 5.03(c) as are necessary to

carry out the provisions of Regulations Section 1.704-1(b)(2)(iv)(m)(2) and 1.704-1(b)(2)(iv)(m)(4); and

(B) a Member who acquires any Units shall furnish to the Board of Directors such information as the Board of Directors shall reasonably require to enable it to compute the adjustments required by Section 755 of the Code and the Regulations thereunder.

(b) Preparation of Returns. The Board of Directors shall cause to be prepared all federal, state and local tax returns of the Company for each year for which such returns are required to be filed and shall cause such returns to be timely filed. Except to the extent otherwise expressly provided in this Agreement, the Board of Directors shall determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax Laws of the United States, the several states and other relevant jurisdictions as to the treatment of any such item or any other method or procedure related to the preparation of such tax returns.

(i) Designation and Powers. CDEC is hereby designated as the tax matters partner within the meaning of Section 6231(a)(7) of the Code (“Tax Matters Member”) until such time as CDEC or its Affiliates are no longer the sole Class A Member, after which time the Members shall determine the Tax Matters Member pursuant to the voting provisions in Section 4.02. The Tax Matters Member shall have all of the rights, authority and power, and shall be subject to all of the obligations, of a tax matters partner to the extent provided in the Code and the Regulations. The Tax Matters Member shall take such action as may be reasonably necessary to cause each other eligible Member to become a “notice partner” within the meaning of Code Section 6231(a)(8). To the extent and in the manner provided by applicable Code sections and Regulations thereunder, the Tax Matters Member (A) shall furnish the name, address, profits interest and taxpayer identification number of each Member to the IRS and (B) shall keep the Members informed of all administrative and judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes. Notwithstanding anything in this Agreement to the contrary, the Tax Matters Member, in its capacity as such, shall not, without the prior approval of the Members holding a majority of the Class B Units (provided that, subject to Section 4.09(g), for so long as FNBO and its Affiliates collectively hold Class B Units representing 17.5% or more of the outstanding Units, FNBO’s (and only FNBO’s) prior approval is required), such approval not to be unreasonably withheld, conditioned or delayed, (1) extend the statute of limitations for the assessment of any Tax, (2) file a petition for judicial review of a “final partnership administrative adjustment” within the meaning of Section 6226(a) of the Code, (3) file a tax claim, on behalf of the Company, in any court, (4) submit any request for administrative adjustment on behalf of the Company or (5) bind the Members to any tax settlement. The Tax Matters

Member shall notify the other Members within 20 Business Days after it receives notice from the IRS (or any state and local tax authority) of any administrative proceeding with respect to an examination of, or proposed adjustment to, any Company tax items.

(ii) State and Local Tax Law. If any state or local tax Law provides for a tax matters partner or person having similar rights, powers, authority or obligations, the Tax Matters Member shall also serve in such capacity. In all other cases, the Tax Matters Member shall represent the Company in all tax matters to the extent allowed by Law.

(iii) Expenses of the Tax Matters Member. All reasonable out-of-pocket expenses incurred by the Tax Matters Member in its capacity as such shall be borne by the Company as an ordinary expense of its business. Such expenses shall include fees of attorneys and other tax professionals, accountants, appraisers and experts, filing fees and reasonable out-of-pocket costs.

(iv) Inconsistent Return Positions. No Member shall file a notice with the IRS under Section 6222(b) of the Code in connection with such Member’s intention to treat an item on such Member’s federal income tax return in a manner that is inconsistent with the treatment of such item on the Company’s federal income tax return, unless such Member has, not less than thirty (30) days prior to the filing of such notice, provided the Board of Directors with a copy of the notice and thereafter in a timely manner provides such other information related thereto as the Board of Directors shall reasonably request.

(v) Election Into TEFRA. In the event that the Company is not subject to the consolidated audit rules of Sections 6221 through 6234 of the Code during any fiscal year, each Person who was a Member at any time during such fiscal year hereby agrees to sign an election pursuant to Section 6231(a)(1)(B)(ii) of the Code and Regulations Section 301.6231(a)(1)1(b)(2) to be filed with the Company’s federal income tax return for such fiscal year to have such consolidated audit rules apply to the Company.

ARTICLE VIII

MISCELLANEOUS

Section 8.01. Exhibits. Without in any way limiting the provisions of Section 7.02, a Director may from time to time execute on behalf of the Company and deliver to the Members exhibits which set forth the then-current Capital Account balances of each Member and any other matters deemed appropriate by the Board of Directors or required by applicable Law. Such exhibits shall be for information purposes only and shall not be deemed to be part of this Agreement for any purpose whatsoever.

Section 8.02. Governing Law; Severability; Selection of Forum; Waiver of Trial by Jury. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN

ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and any provision of the Certificate, this Agreement shall control; in the event of a direct conflict between the provisions of this Agreement and any mandatory provision of the Act, the applicable provision of the Act shall control. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or circumstance, is invalid or unenforceable to any extent, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, and such invalidity or unenforceability shall not affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction. Each party agrees, subject to Section 8.03, that it shall bring any action, suit, demand or proceeding (including counterclaims) in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby, exclusively in the United States District Court for the District of Delaware or any Delaware State court, in each case sitting in the City of Wilmington, Delaware (the “Chosen Courts”), and solely in connection with claims arising under this Agreement or the transactions contemplated hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action, suit, demand or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service of process upon such party in any such action, suit, demand or proceeding shall be effective if notice is given in accordance with Section 8.07. Each party irrevocably waives any and all right to trial by jury in any action, suit, demand or proceeding (including counterclaims) arising out of or related to this Agreement or the transactions contemplated hereby.

Section 8.03. Dispute Resolution. Any Arbitration Disputes shall be resolved as provided in this Section 8.03.

(a) Negotiation of Disputes.

mutually acceptable time and place, and thereafter as often as they deem reasonably necessary, to attempt to resolve the Arbitration Dispute.

(b) Arbitration. If any such Arbitration Dispute has not been resolved by the Parties in accordance with Section 8.03(a) within forty-five (45) days of the disputing Party’s request notice, or if the Parties fail to meet within thirty (30) days of such request notice, then each of the Parties agrees that such Arbitration Dispute shall be finally and exclusively settled without appeal by arbitration in New York City, New York, administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect as of the date of the request for arbitration, which rules are deemed to be incorporated into this Section 8.03(b); provided, however, that in the event of any conflict between such rules and the other provisions of this Agreement, such other provisions of this Agreement shall control. The arbitration shall be conducted before a panel of three (3) arbitrators. Each Party shall appoint one (1) arbitrator within thirty (30) days of receiving notice of the request for arbitration in accordance with the Commercial Arbitration Rules of the AAA. The two party-appointed arbitrators shall then attempt to appoint a third arbitrator who shall act as the chairman of the panel (the “Chairman”) within twenty (20) days of the appointment of the second arbitrator. If the Party-appointed arbitrators fail to agree on the Chairman within such period, the Chairman shall be appointed by the AAA upon the written request of either Party. The decision of the arbitrators shall be by majority vote, shall be in writing, shall set forth the facts found by the arbitrators to exist, their decision and the basis for that decision and shall be final and binding upon the parties and not subject to appeal. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof, including any court having jurisdiction over any of the Parties or their assets. Each Party shall bear its own costs and expenses in connection with the arbitration, including reasonable attorneys’ fees, disbursements, arbitration expense, arbitrators’ fees and the administrative fee of the AAA.

Section 8.04. Successors and Assigns; No Third-person Beneficiaries. This Agreement is binding upon the parties to this Agreement and their respective permitted successors and assigns. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and each of their respective permitted successors and assigns and other than the Covered Persons with respect to Section 4.07.

Section 8.05. Confidentiality. The Company shall use reasonable best efforts to preserve the confidentiality of the confidential information of the Company and the Subsidiaries (except the Company may disclose such confidential information in connection with acquisitions where the receiving party executes a customary confidentiality agreement). By executing this Agreement, for the period during which a Member is a party to this Agreement and for three years thereafter, each Member expressly agrees to maintain the confidentiality of, and not to disclose to any Person other than the Company or any Subsidiary, another Member or any of their respective financial advisors, accountants, attorneys or other advisors, without the consent of a majority of the Board of Directors, any information relating to the business, financial structure, financial position or financial results, customers, suppliers or affairs of the Company and the Subsidiaries that shall not be generally known to the public, except (a) as otherwise required by Law or by any Government Entity or Self-Regulatory Organization having authority or jurisdiction over such Members, provided that the disclosing Member will exercise reasonable

best efforts to minimize disclosure of such information that is confidential or proprietary and to seek confidential treatment for any such information to the maximum extent permissible, or (b) the delivery by a Member of financial statements of the Company and the Subsidiaries to its direct or indirect partners, stockholders or members, provided that such parties are bound by appropriate confidentiality provisions, including in their ability to use such information. This provision shall survive any termination of this Agreement either generally or in regard to any Member. Each Member agrees that monetary damages may not be an adequate remedy for a breach of this Section 8.05, and that, in addition to any other remedies, each Member shall be entitled to seek injunctive relief to restrain any such breach, whether threatened or actual, without the necessity of proving the inadequacy of monetary damages as a remedy.

Section 8.06. Amendments. Except as otherwise provided in this Agreement (including any amendment by CDEC pursuant to Section 4.09(g)), no amendment of any provision of this Agreement shall be effective against the Company or the Members unless such amendment is approved in accordance with Section 4.02(e) or 4.09(g). This Agreement and any provision hereof may only be waived by a writing signed by the party against whom the waiver is to be effective. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

Section 8.07. Notices. Whenever notice is required or permitted by this Agreement to be given, such notice shall be in writing and shall be given to any Member at its address, telecopy number or e-mail address shown on Schedule I, or, if given to the Company, at the addresses listed on Schedule I or such other address as may be designated from time to time in accordance with this Section 8.07. Each proper notice shall be effective upon any of the following: (a) personal delivery to the recipient, (b) when telecopied or e-mailed to the recipient if the telecopy is promptly confirmed by automated or telephone confirmation thereof or if the e-mail is promptly confirmed by e-mail or telephone confirmation thereof or (c) one Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid).

Section 8.08. Counterparts. This Agreement may be executed in any number of counterparts (including by means of telecopied signature pages), each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.

Section 8.09. Power of Attorney. Each Member hereby irrevocably appoints each Director as such Member’s true and lawful representative and attorney-in-fact, each acting alone, in such Member’s name, place and stead, (a) to make, execute, sign and file all instruments, documents and certificates which, from time to time, may be required to set forth any otherwise approved amendments to this Agreement or which may be required by this Agreement or by the Laws of the United States of America, the State of Delaware or any other state in which the Company and/or the Subsidiaries shall determine to do business, or any political subdivision or agency thereof, and (b) to execute, implement and continue the valid and subsisting existence of the Company and/or the Subsidiaries or to qualify and continue the Company and/or the Subsidiaries as a foreign limited liability company in all jurisdictions in which the Company may conduct business. Such power of attorney is coupled with an interest and shall survive and continue in full force and effect notwithstanding the subsequent withdrawal from the Company

of any Member for any reason and shall survive and shall not be affected by the disability or incapacity of such Member.

Section 8.10. Entire Agreement. This Agreement, including the Exhibits and Schedules to this Agreement, embodies the entire agreement and understanding of the parties hereto in respect of the subject matter contained in this Agreement. This Agreement and the Registration Rights Agreement supersede all prior agreements and understandings between the parties with respect to the subject matter hereof and thereof.

Section 8.11. Guarantee. TSYS hereby unconditionally and irrevocably guarantees, to and for the benefit of FNBO, the full and timely performance by CDEC of its obligations to comply with any payment obligations pursuant to Sections 2.04(b)(iv), 4.09(d), 4.09(e), 6.03(f) and 6.03(g) of this Agreement. TSYS agrees to make any such payments in accordance with this Agreement as if such obligation were the direct contractual obligation of TSYS, and TSYS hereby waives any defense (a) that may arise by reason of the lack of capacity, power or authority of CDEC or TSYS and (b) that may arise by reason of any failure or lack of demand, presentment, protest or notice of any kind. For the avoidance of doubt, this Section 8.11 is a guarantee of payment and not of collection and shall be subject to the provisions contained in Sections 8.02, 8.03, 8.04, 8.06, 8.08 and 8.10.

[Remainder of page intentionally left blank]

[Signature pages follow]

IN WITNESS WHEREOF, the parties have executed this Amended and Restated Limited Liability Company Agreement as of the day and year first above written.


	THE COMPANY: FNMS HOLDING, LLC
	By	/s/ Troy Woods
		M. Troy Woods
		President and Chief Executive Officer

	THE MEMBERS: COLUMBUS DEPOT EQUIPMENT COMPANY
	By	/s/ Jim Lipham
		James B. Lipham
		Chief Financial Officer

	FIRST NATIONAL BANK OF OMAHA
	By	/s/ Michael Summers
		Michael Summers
		Chief Financial Officer

	FN MERCHANT PARTNERS, INC.
	By	/s/ Michael Summers
		Michael Summers
		President


TOTAL SYSTEM SERVICES, INC. Acknowledging and agreeing to be bound solely by the provisions of Section 8.11 of this Agreement.
By	/s/ Troy Woods
	M. Troy Woods
	President and Chief Operating Officer

EX-10.4 5 g23272exv10w4.htm EX-10.4 exv10w4

Exhibit 10.4

TOTAL SYSTEM SERVICES, INC.
STOCK OPTION AGREEMENT

THIS AGREEMENT (“Agreement”) is made effective as of , by and between TOTAL SYSTEM SERVICES, INC., a Georgia corporation (the “Company”), a Georgia corporation having its principal office at One TSYS Way, Columbus, Georgia, and you (“Option Holder”), an employee of the Company or a Subsidiary of the Company.

W I T N E S S E T H:

WHEREAS, the Board of Directors of the Company has adopted the Total System Services, Inc. 2008 Omnibus Plan (the “Plan”); and

WHEREAS, the Company recognizes the value to it of the services of the Option Holder and intends to provide the Option Holder with added incentive and inducement to contribute to the success of the Company; and

WHEREAS, the Company recognizes the potential benefits of providing employees the opportunity to acquire an equity interest in the Company and to more closely align the personal interests of employees with those of other shareholders; and

WHEREAS, effective , pursuant to the Plan, the Compensation Committee of the Board of Directors of the Company: (a) granted to the Option Holder, pursuant to Section 6 of the Plan, an Option in respect of the number of shares herein below set forth, (b) designated the Option a Non-Qualified Stock Option, and (c) fixed and determined the Option price and exercise and termination dates as set forth below.

NOW THEREFORE, in consideration of the mutual promises and representations herein contained and other good and valuable consideration, it is agreed by and between the parties hereto as follows:

1. The terms, provisions and definitions of the Plan are incorporated by reference and made a part hereof. All capitalized terms in this Agreement shall have the same meanings given to such terms in the Plan except where otherwise noted.

2. Subject to and in accordance with the provisions of the Plan, the Company hereby grants to the Option Holder a Non-Qualified Stock Option to purchase, on the terms and subject to the conditions hereinafter set forth, all or any part of the aggregate shares of the Common Stock ($0.10 par value) so granted of the Company at the purchase price of $ per share, exercisable in the amounts and at the times set forth in this Paragraph 2, unless the Compensation Committee, in its sole and exclusive discretion, shall authorize the Option Holder to exercise all or part of the Option at an earlier date.

The Option may be exercised in accordance with the following schedule as provided in the Plan:


If employment		Percentage of
continues through		Option Exercisable

		%

		%

		%

In the event of Option Holder’s death or total and permanent disability, Option Holder (or the legal representative of Option Holder’s estate or legatee under Option Holder’s will) shall be able to exercise the Option in full for the remainder of the Option’s term.

In the event Option Holder’s employment with Company terminates on or after Option Holder’s early retirement date (which is defined as attainment of age 62 with 15 or more years of service) or Option Holder’s normal retirement date (which is defined as attainment of age 65), the Option may be exercised to the extent exercisable upon such termination pursuant to the schedule above. In addition, if such termination occurs prior to , the Option also will be exercisable for an additional percentage of the Option determined by multiplying (i) the incremental percentage of the Option that would have become exercisable under such schedule on the next anniversary date if Option Holder’s employment had not terminated, by (ii) the ratio of the number of months since the immediately preceding anniversary date (or since the date of grant, if the termination occurs prior to ) that Option Holder has been employed to 12. Partial months of employment will be counted as full months for purposes of this proration calculation. To the extent the Option is exercisable pursuant to this paragraph, it will be exercisable for the remainder of the Option’s term.

The Option may also be exercised in full for the remainder of the Option’s term in the event the Option Holder’s employment is involuntarily terminated by the Company without Cause (as defined in Paragraph 7 below) after Option Holder has attained 10 years of service.

In the event of Option Holder’s separation of employment for any reason other than the reasons listed above, Option Holder shall be able to exercise the Option to the extent the Option was exercisable at the time of such separation of employment for 90 days following the date of such separation of employment.

Unless sooner terminated as provided in the Plan or in this Agreement, the Option shall terminate, and all rights of the Option Holder hereunder shall expire on . In no event may the Option be exercised after .

3. The Option or any part thereof, may, to the extent that it is exercisable, be exercised in the manner provided in the Plan. Payment of the aggregate Option price for the number of shares purchased and any withholding taxes shall be made in the manner provided in the Plan.

4. The Option or any part thereof may be exercised during the lifetime of the Option Holder only by the Option Holder and only while the Option Holder is in the employ of the Company, except as otherwise provided in the Plan.

5. Unless otherwise designated by the Compensation Committee, the Option shall not be transferred, assigned, pledged or hypothecated in any way. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of a nontransferable Option or any right or privilege confirmed hereby contrary to the provisions hereof, the Option and the rights and privileges confirmed hereby shall immediately become null and void.

6. In the event of any merger, reorganization, consolidation, recapitalization, stock dividend, or other change in corporate structure affecting the Company’s Stock, any necessary adjustment shall be made in accordance with the provisions of Section 4.4 of the Plan.

7. In the event of a Change of Control (as defined in Section 2.8 of the Plan) and Option Holder’s subsequent termination of employment within two years following the date of such Change of Control either (i) by the Company for any reason other than Cause or (ii) by the Option Holder for Good Reason (as the terms “Cause” and “Good Reason” are defined in the Company’s applicable Change of Control Agreement, the provisions of which are incorporated herein by reference), the Option may be immediately exercised in full as of the date of such employment termination and the Option may be exercised in full for the remainder of the Option’s term.

8. Any notice to be given to the Company shall be addressed to the President of the Company at One TSYS Way, Columbus, Georgia 31901.

9. Nothing herein contained shall affect the right of the Option Holder to participate in and receive benefits under and in accordance with the provisions of any pension, insurance or other benefit plan or program of the Company as in effect from time to time and for which the Option Holder is eligible.

10. Nothing herein contained shall affect the right of the Company, subject to the terms of any written contractual arrangement to the contrary, to terminate the Option Holder’s employment at any time for any reason whatsoever.

11. This Agreement shall be binding upon and inure to the benefit of the Option Holder, his personal representatives, heirs legatees, but neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by the Option Holder except as expressly set forth in this Agreement or in the Plan.

Company has issued the Option subject to the foregoing terms and conditions and the provisions of the Plan.

EX-10.5 6 g23272exv10w5.htm EX-10.5 exv10w5

Exhibit 10.5

PERFORMANCE SHARE AGREEMENT

Total System Services, Inc. (“Company”) confirms that, effective (the “Grant Date”), you were awarded the opportunity to receive Performance Shares with an initial economic value equal to the product of (a) your base salary on the Grant Date multiplied by (b) your LTIP multiplier as determined by the Committee prior to the Grant Date (such initial economic value being the “ Performance Opportunity”), subject to adjustment based on specified performance measures for the period . The Performance Opportunity will be converted into Performance Shares pursuant to the provisions of Section 1 below, with one-half of the Performance Opportunity converted pursuant to Section 1(d) and the other half converted pursuant to Section 1(e). The Performance Shares that you receive in connection with this Performance Opportunity, if any, are subject to the terms and conditions of this Performance Share Agreement (this “Agreement”) and the Company’s 2008 Omnibus Plan (the “Plan”). Any other capitalized word used in this Agreement and not defined in this Agreement, including each form of that word, is defined in the Plan.

1. Standard Performance Terms.

(a) In General. The terms of this Section 1 shall be referred to as the “Standard Performance Terms” and will apply to your Performance Shares except in so far as Sections 2 (Change of Employment Status) or 3 (Change of Control) apply.

(b) Performance Period. The number of Performance Shares you receive in connection with the Performance Opportunity will be determined on the basis of the Company’s performance during the performance period beginning on and ending on (the “Performance Period”).

(c) Initial Performance Shares. The Performance Opportunity initially will equal a number of Performance Shares determined by dividing the Performance Opportunity by the closing price of the Company’s Shares on the New York Stock Exchange on the Grant Date (your “Initial Performance Shares”).

(d) Performance Goals Based on Revenue Growth. The Committee will set the performance goals for one-half of your Initial Performance Shares based on the compounded annual growth rate of the Company’s revenue before reimbursables (as shown on the Company’s financial statement) for the Performance Period, subject to adjustment as provided in Section 1(f) (the “Revenue Growth”). Within 90 days after the beginning of the Performance Period, the Committee will establish a target Revenue Growth, as well as minimum and maximum threshold levels of Revenue Growth.

After the end of the Performance Period, the Committee will certify the Revenue Growth and the number of Performance Shares payable based on the Company’s performance against the pre-established target, minimum and maximum threshold levels of Revenue Growth as set forth in this Section 1(d); provided; however, without regard to the Revenue Growth, in no event will the number of Performance Shares payable pursuant to this Section 1(d) exceed the number of Performance Shares payable pursuant to Section 1(e).

	•		If the Revenue Growth equals the target for the Performance Period, then the number of Performance Shares payable will equal 50% of your Initial Performance Shares that are subject to this Section 1(d);

	•		If the Revenue Growth equals the minimum threshold for the Performance Period, then the number of Performance Shares payable will equal 25% of your Initial Performance Shares that are subject to this Section 1(d);

	•		If the Revenue Growth equals or exceeds the maximum threshold for the Performance Period, then the number of Performance Shares payable will equal 100% of your Initial Performance Shares that are subject to this Section 1(d);

	•		If the Revenue Growth falls between the minimum threshold and the target for the Performance Period, or between the target and the maximum threshold for the Performance Period, then the percentage of your Initial Performance Shares that are subject to this Section 1(d) and the number of Performance Shares that are payable will be mathematically interpolated; and

	•		If the Revenue Growth is less than the minimum threshold for the Performance Period, then none of your Initial Performance Shares that are subject to this Section 1(d) will be payable.

(e) Performance Goals Based on Income Growth. The Committee will set the performance goals for the other half of your Initial Performance Shares based on the compounded annual growth rate of the Company’s income from continuing operations (as shown on the Company’s financial statement) for the Performance Period, subject to adjustment as provided in Section 1(f) (the “Income Growth”). Within 90 days after the beginning of the Performance Period, the Committee will establish a target Income Growth, as well as minimum and maximum threshold levels of Income Growth.

After the end of the Performance Period, the Committee will certify the Income Growth and the number of Performance Shares payable based on the Company’s performance against the pre-established target, minimum and maximum threshold levels of Income Growth as follows:

•

If the Income Growth equals the target for the Performance Period, then the number of Performance Shares payable will equal 50% of your Initial Performance Shares that are subject to this Section 1(e);

	•		If the Income Growth equals the minimum threshold for the Performance Period, then the number of Performance Shares payable will equal 25% of your Initial Performance Shares that are subject to this Section 1(e);

	•		If the Income Growth equals or exceeds the maximum threshold for the Performance Period, then the number of Performance Shares payable will equal 100% of your Initial Performance Shares that are subject to this Section 1(e);

	•		If the Income Growth falls between the minimum threshold and the target for the Performance Period, or between the target and the maximum threshold for the Performance Period, then the percentage of your Initial Performance Shares that are subject to this Section 1(e) and the number of Performance Shares that are payable will be mathematically interpolated; and

	•		If the Income Growth is less than the minimum threshold for the Performance Period, then none of your Initial Performance Shares that are subject to this Section 1(e) will be payable.

(f) Adjustments. In determining the Revenue Growth and Income Growth, the Committee will (i) make adjustments for regulatory changes in accounting, tax rates, and laws, (ii) exclude any uncapitalized expenses associated with conversion of a major client, (iii) exclude costs and benefits associated with changes in foreign currency exchange rates, (iv) exclude extraordinary non-recurring income/expenses, (v) include acquisitions, and (vi) exclude a quantitative amount of income from the Income Growth performance result to adjust for any dilutive EPS effect from any transaction or series of transactions during the performance period.

2. Change of Employment Status. Except as otherwise provided in this Section 2 or Section 3, you must remain employed with the Company or an Affiliate through the Performance Period in order to fully vest in your Performance Shares. For purposes of this Section 2, your transfer between the Company and an Affiliate, or among Affiliates, will not be a termination of employment. In the event of a Change of Control, any applicable terms of Section 3 (Change of Control) will supersede the terms of this Section 2.

(a) Long-Term Disability or Death. If (i) you qualify for long-term disability benefits under a plan or arrangement offered by the Company or an Affiliate for its employees, or (ii) your employment with the Company or an Affiliate terminates due to your death during the Performance Period, the number of Performance Shares you will receive will equal the product of 50% of the number of your Initial Performance Shares multiplied by the ratio of the number of days you were employed during the Performance Period to the total number of days in the Performance Period.

(b) Retirement. If your employment with the Company or an Affiliate terminates on or after your early retirement date (which is defined as attainment of age 62 with 15 or more years of service) or your normal retirement date (which is defined as attainment of age 65), the Standard Performance Terms applicable to the entire Performance Period will continue to apply to determine the number of Performance Shares, except that the amount payable to you at the end of

the Performance Period will be prorated based on the ratio of number of day you were employed during the Performance Period to the total number of days in the Performance Period.

(c) Other Termination of Employment. Except as set forth in Section 2(a) or (b), if you voluntarily terminate employment or if you are involuntarily terminated by the Company or an Affiliate before the end of the Performance Period, your Performance Shares received in connection therewith will be forfeited immediately.

3. Change of Control. In the event of a Change of Control and your subsequent termination of employment within two (2) years following the date of such Change of Control (and before the end of the Performance Period) either (i) by the Company for any reason other than Cause or (ii) by you for Good Reason (as the terms “Cause” and “Good Reason” are defined in the Company’s Change of Control Plan Document, the provisions of which are incorporated herein by reference), the number of Performance Shares you receive will equal the product of 50% of the number of your Initial Performance Shares multiplied by the ratio of the number of days you were employed during the Performance Period to the total number of days in the Performance Period.

4. Nontransferability of Awards. Except as provided in Section 5 or as otherwise permitted by the Committee, you may not sell, transfer, pledge, assign or otherwise alienate or hypothecate any of your Performance Shares, and all rights with respect to your Performance Shares are exercisable during your lifetime only by you.

5. Beneficiary Designation. You may name any beneficiary or beneficiaries (who may be named contingently or successively) who may then exercise any right under this Agreement in the event of your death. Each beneficiary designation for such purpose will revoke all such prior designations. Beneficiary designations must be properly completed on a form prescribed by the Committee and must be filed with the Company during your lifetime. If you have not designated a beneficiary, your rights under this Agreement will pass to and may be exercised by your estate.

6. Tax Withholding. The Company will withhold from any payment made under this Agreement or any other amounts payable to you by the Company an amount sufficient to satisfy the minimum statutory Federal, state, and local tax withholding requirements relating to such payment.

7. Adjustments. In accordance with Section 4.4 of the Plan, the Committee will make appropriate adjustments in the terms and conditions of your Performance Shares in recognition of a corporate event or transaction affecting the Company (such as a common stock dividend, common stock split, recapitalization, payment of an extraordinary dividend, merger, consolidation, combination, spin-off, distribution of assets to stockholders other than ordinary cash dividends, exchange of shares, or other similar corporate change), to prevent unintended dilution or enlargement of the potential benefits of your Performance Shares. The Committee’s determinations pursuant to this Section 7 will be conclusive.

8. Timing and Form of Payment.

(a) This Agreement is intended to comply with Code Section 409A and shall be interpreted accordingly. If Shares are to be paid to you, you will receive evidence of ownership of those Shares.

(b) If payment is due and payable under the Standard Performance Terms or under Section 2(a), payment will be made in Shares in as soon as administratively practicable following the date the Committee certifies the Revenue Growth and Income Growth, and the number of Performance Shares payable based on the applicable pre-established target, minimum threshold and maximum threshold annual growth rate percentages.

(c) If payment is due and payable under Section 3, it will be made in Shares six (6) months and one day after your “separation from service” under Code Section 409A.

9. Dividend Equivalents. The Initial Performance Shares will be credited with dividend equivalents equal to the amount of cash dividend payments that would have otherwise been paid if the shares of the Company’s common stock represented by the Initial Performance Shares (including deemed reinvested additional shares attributable to the Initial Performance Shares pursuant to this paragraph) were actually outstanding (the “Dividend Equivalents”). These Dividend Equivalents will be deemed to be reinvested in additional shares of the Company’s common stock determined by dividing the deemed cash dividend amount by the Fair Market Value of a share of the Company’s common stock on the applicable dividend payment date. Such credited amounts will be added to the Initial Performance Shares and will vest or be forfeited in accordance with Section 2 based on the vesting or forfeiture of the Initial Performance Shares to which they are attributable. In addition, the Initial Performance Shares will be credited with any dividends or distributions that are paid in shares of the Company’s common stock represented by the Initial Performance Shares and will otherwise be adjusted by the Committee for other capital or corporate events as provided for in the Plan.

10. No Guarantee of Employment. This Agreement is not a contract of employment and it is not a guarantee of employment for life or any period of time. Nothing in this Agreement interferes with or limits in any way the right of the Company or an Affiliate to terminate your employment at any time. This Agreement does not give you any right to continue in the employ of the Company or an Affiliate.

11. Governing Law; Choice of Forum. This Agreement will be construed in accordance with and governed by the laws of the State of Georgia, regardless of the law that might be applied under principles of conflict of laws. Any action to enforce this Agreement or any action otherwise regarding this Agreement must be brought in a court in the State of Georgia, to which jurisdiction the Company and you consent.

12. Miscellaneous. For purposes of this Agreement, “Committee” includes any direct or indirect delegate of the Committee (to the extent permitted by Code Section 162(m)), and the word “Section” refers to a Section in this Agreement. The Committee has absolute discretion to interpret and make determinations under this Agreement. Any determination or interpretation by

the Committee pursuant to this Agreement will be final and conclusive. In the event of a conflict between any term of this Agreement and the terms of the Plan, the terms of the Plan control. This Agreement and the Plan represent the entire agreement between you and the Company, and you and all Affiliates, regarding your Performance Shares. No promises, terms, or agreements of any kind regarding your Performance Shares that are not set forth, or referred to, in this Agreement or in the Plan are part of this Agreement. In the event any provision of this Agreement is held illegal or invalid, the rest of this Agreement will remain enforceable. If you are an Employee of an Affiliate, your Performance Shares are being provided to you by the Company on behalf of that Affiliate, and the value of your Performance Shares will be considered a compensation obligation of that Affiliate. Your Performance Shares are not Shares and do not give you the rights of a holder of Shares. The issuance of Shares pursuant to your Performance Shares is subject to all applicable laws, rules and regulations, and to any approvals by any governmental agencies or national securities exchanges as may be required. No Shares will be issued if that issuance would result in a violation of applicable law, including the federal securities laws and any applicable state or foreign securities laws.

13. Clawback Policy. The Committee may (in its sole discretion) direct that the Company recover all or a portion of the Performance Shares or Shares you receive pursuant to this Agreement if such Performance Shares or Shares are determined using materially misstated financial information or other performance metric criteria. The amount to be recovered shall be equal to the excess of the Performance Shares or Shares you receive over the Performance Shares or Shares that you would have received had such financial information or performance metric been fairly stated, or any greater or lesser amount (up to all of the Performance Shares or Shares) that the Committee shall determine. The Committee shall determine whether the Company shall effect any such recovery: (i) by seeking repayment, (ii) by reducing (subject to applicable law and the terms and conditions of the applicable plan, program or arrangement ) the amount that would otherwise be payable under any compensatory plan, program, or arrangement maintained by the Company, (iii) by withholding payment of future increases in compensation (including the payment of any discretionary bonus amount) or grants of compensatory awards that would otherwise have been made in accordance with the Company’s otherwise applicable compensation practices, or (iv) by any combination of the foregoing.

14. Amendments. The Committee has the exclusive right to amend this Agreement as long as the amendment does not adversely affect your Performance Opportunity in any material way (without your written consent) and is otherwise consistent with the Plan. The Company will give written notice to you (or, in the event of your death, to your beneficiary or estate) of any amendment as promptly as practicable after its adoption.

EX-10.6 7 g23272exv10w6.htm EX-10.6 exv10w6

Exhibit 10.6

TOTAL SYSTEM SERVICES, INC.
PERFORMANCE-BASED SPECIAL STOCK OPTION AGREEMENT

THIS AGREEMENT (“Agreement”) is made effective as of , by and between TOTAL SYSTEM SERVICES, INC., a Georgia corporation (the “Company”), a Georgia corporation having its principal office at One TSYS Way, Columbus, Georgia, and Option Holder, an employee of the Company or a Subsidiary of the Company.

W I T N E S S E T H:

WHEREAS, the Board of Directors of the Company has adopted the Total System Services, Inc. 2008 Omnibus Plan (the “Plan”); and

WHEREAS, the Company recognizes the value to it of the services of Option Holder and intends to provide Option Holder with added incentive and inducement to contribute to the success of the Company; and

WHEREAS, effective (“Grant Date”), pursuant to the Plan, the Compensation Committee of the Board of Directors of the Company: (a) granted to Option Holder, pursuant to Section 6 of the Plan, an Option in respect of the number of Shares herein below set forth, (b) designated the Option a Non-Qualified Stock Option, and (c) fixed and determined the Option price and exercise and termination dates and conditions as set forth below.

NOW THEREFORE, in consideration of the mutual promises and representations herein contained and other good and valuable consideration, it is agreed by and between the parties hereto as follows:

2. Subject to and in accordance with the provisions of the Plan, effective on the Grant Date the Company hereby grants to Option Holder a Non-Qualified Stock Option to purchase, on the terms and subject to the conditions hereinafter set forth, all or any part of Shares granted at the purchase price of $ per Share (the “Grant Price”), exercisable at such times and in such manner as described in this Agreement, unless the Compensation Committee, in its sole and exclusive discretion, shall authorize Option Holder to exercise all or part of the Option at an earlier date.

3. The Option shall become exercisable with respect to 100% of the Shares subject to the Option on the earlier of

	(a)		, if (i) Option Holder remains continuously employed from the Grant Date through such date, and (ii) either (A) the basic earnings per share for the Company (as shown in the Company’s financial statements) are $ or higher for the Company’s fiscal year or (B) the closing price for a Share on is at least % of the Grant Price, and

	(b)		the date of Option Holder’s death or total and permanent disability while employed by the Company.

Except as set forth in Paragraphs 5(b) and 10, if Option Holder terminates employment for any reason (except death or total and permanent disability) before , the Option shall be automatically forfeited in full. Furthermore, except as set forth in Paragraph 10, if neither of the requirements of Paragraph 3(a)(ii) are met, the Option shall be automatically forfeited in full (unless the Option otherwise becomes exercisable pursuant to Paragraph 3(b) upon Option Holder’s death or total and permanent disability prior to while employed by the Company).

4. Unless sooner terminated as provided in the Plan or in this Agreement, the Option shall terminate, and all rights of Option Holder hereunder shall expire on (“Expiration Date”). In no event may the Option be exercised after the Expiration Date.

5. (a) In the event of Option Holder’s death or total and permanent disability while employed by the Company, Option Holder (or the legal representative of Option Holder’s estate or legatee under Option Holder’s will) shall be able to exercise the Option, to the extent exercisable under Paragraph 3, through the Expiration Date.

(b) In the event Option Holder’s employment with the Company terminates before and on or after Option Holder’s early retirement date (which is defined as attainment of age 62 with 15 or more years of service) or Option Holder’s normal retirement date (which is defined as attainment of age 65), the Option will be exercisable for a percentage of the Shares subject to the Option determined by multiplying (i) the number of Shares subject to this Option, by (ii) the ratio of the number of months of Option Holder’s employment since the Grant Date to 36; provided that one of the requirements of Paragraph 3(a)(ii) are met. Partial months of employment will be counted as full months for purposes of this proration calculation. To the extent the Option is exercisable pursuant to this Paragraph 5(b), it will be exercisable from through the Expiration Date.

(c) Except as set forth in Paragraph 10, in the event of Option Holder’s termination of employment for any reason other than the reasons listed in Paragraphs 5(a) or 5(b), the Option shall cease to be exercisable on the date Option Holder’s employment terminates.

6. The Option or any part thereof, may, to the extent that it is exercisable, be exercised in the manner provided in the Plan. Payment of the aggregate Grant Price for the number of Shares purchased and any withholding taxes shall be made in the manner provided in the Plan.

7. The Option or any part thereof may be exercised during the lifetime of Option Holder only by Option Holder and only while Option Holder is in the employ of the Company, except as otherwise provided in the Plan.

8. Unless otherwise designated by the Compensation Committee, the Option shall not be transferred, assigned, pledged or hypothecated in any way. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of a nontransferable Option or any right or privilege confirmed hereby contrary to the provisions hereof, the Option and the rights and privileges confirmed hereby shall immediately become null and void.

9. In the event of any merger, reorganization, consolidation, recapitalization, stock dividend, or other change in corporate structure affecting the Company’s Stock, any necessary adjustment shall be made in accordance with the provisions of Section 4.4 of the Plan.

10. In the event of a Change of Control (as defined in Section 2.8 of the Plan) and Option Holder’s subsequent termination of employment within two years following the date of such Change of Control either (i) by the Company for any reason other than Cause or (ii) by Option Holder for Good Reason (as the terms “Cause” and “Good Reason” are defined in the Company’s applicable Change of Control Agreement, the provisions of which are incorporated herein by reference), the Option may (to the extent not already exercised in connection with the Change in Control (if required by the Compensation Committee) or otherwise) be immediately exercised in full as of the date of such employment termination and, may be exercised in full through the Expiration Date.

11. Any notice to be given to the Company shall be addressed to the President of the Company at One TSYS Way, Columbus, Georgia 31901.

12. Nothing herein contained shall affect the right of Option Holder to participate in and receive benefits under and in accordance with the provisions of any pension, insurance or other benefit plan or program of the Company as in effect from time to time and for which Option Holder is eligible.

13. Nothing herein contained shall affect the right of the Company, subject to the terms of any written contractual arrangement to the contrary, to terminate Option Holder’s employment at any time for any reason whatsoever.

14. This Agreement shall be binding upon and inure to the benefit of Option Holder, his personal representatives, heirs, and legatees, but neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by Option Holder except as expressly set forth in this Agreement or in the Plan.

15. In addition to any other rights the Company may have (including, without limitation, under Section 20.1 of the Plan), if the Board of Directors of the Company determines after due inquiry that Option Holder has participated in a material manipulation of the Company’s financial information or engaged in conduct that would constitute Cause (as defined in Paragraph 10) or a breach of noncompetition, confidentiality, or other restrictive covenants that apply to Option Holder, the Company has the right (a) to immediately cancel any outstanding portion of the Option and (b) to purchase any Shares previously purchased by Option Holder pursuant to the Option by paying Option Holder an amount per Share equal to the lesser

of the Grant Price for such Share under Paragraph 2 or 90% of the Fair Market Value of such Share on the purchase date.

The Company has issued the Option subject to the foregoing terms and conditions and the provisions of the Plan.

EX-31.1 8 g23272exv31w1.htm EX-31.1 exv31w1

EXHIBIT 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER

I, Philip W. Tomlinson, certify that:

1.		I have reviewed this quarterly report on Form 10-Q of Total System Services, Inc.;

2.		Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.		Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.		The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

	(a)		Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

	(b)		Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

	(c)		Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

	(d)		Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

	(a)		All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

	(b)		Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.



Date: May 7, 2010	/s/ Philip W. Tomlinson
	Philip W. Tomlinson
	Chairman of the Board and Chief Executive Officer

EX-31.2 9 g23272exv31w2.htm EX-31.2 exv31w2

EXHIBIT 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER

I, James B. Lipham, certify that:

1.		I have reviewed this quarterly report on Form 10-Q of Total System Services, Inc.;

2.		Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3.		Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4.		The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a- 15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

	(a)		Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

	(b)		Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

	(c)		Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

	(d)		Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

	(a)		All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

	(b)		Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.



Date: May 7, 2010	/s/ James B. Lipham
	James B. Lipham
	Senior Executive Vice President and Chief Financial Officer

EX-32 10 g23272exv32.htm EX-32 exv32

EXHIBIT 32

CERTIFICATION OF PERIODIC REPORT

Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, Philip W. Tomlinson, the Chairman of the Board and Chief Executive Officer of Total System Services, Inc. (the “Company”), and James B. Lipham, the Senior Executive Vice President and Chief Financial Officer of the Company, hereby certify that, to the best of his knowledge:

(1)		The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010 (the “Report”) fully complies with the requirements of section 13(a) or section 15(d) of the Securities Exchange Act of 1934; and

(2)		The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.



May 7, 2010	/s/ Philip W. Tomlinson
	Philip W. Tomlinson
	Chairman of the Board and Chief Executive Officer


May 7, 2010	/s/ James B. Lipham
	James B. Lipham
	Senior Executive Vice President and Chief Financial Officer

This certification “accompanies” the Form 10-Q to which it relates, is not deemed filed with the SEC and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q, irrespective of any general incorporation language contained in such filing).

GRAPHIC 11 g23272g2327200.gif GRAPHIC begin 644 g23272g2327200.gif M1TE&.#EAA0`N`.8``)RY$]CHB;G!U7B!I_'Y^]KC[0T-8NKR]Z2]$Z$N[N];*]TY.7PU5;>HR4M___^`L.6)FDO-+:XOG\ M_34Z=(")I;_)VXF1I^7K\M/>ZQPC5/W^Y2PS9PP,7@H,2^'OH?#Q][O/3J;! M$:2IQPP057%ZFVAHE;"VR1D::"(I9/S^_N+G[D)*=0X-:$E4A2HM6:&\$8.* ML]7E?AXB8M/?A:JXU*BV$/CZ_-+=<`T12TY9DPT/8Y*6K1072E=@?]#7Y)^L MOR\T=$U3?/___$=+@/?Y^\30X`L.70@,0$A+;?W[_9S`$PL*5]WF\?S]_D!1 MB0\-;PL+6_O\_9^Y%:^Y M#M[>Z5AII'1PF_;W^FEPCJJQTIBO$EA;:@X'41\F>L7&S?___R'Y!``````` M+`````"%`"X```?_@'^"@X2%AH>(B8J+C(V.CY"1C`QH*FH6DI,,F9R+#'E6 M!9VC8U-(-:.(#)NIK8)C(5)4KI(_4VL?M+J[?PPA&QI_6%B\A,.%*+>YQRQ`@PT``PH<2%#@F09)"#$0,6[0#QHA\>#U53 M9>@`CP%3@F3@P"%#D"DZ+HCJ=4]0`1$5'+#HT$(0AI]`@PH-*J!'KR@QK*A)P<&*E1AJ_ZQD MH!!RD(4%,5CJ56N%@Y>>?VI<>.)CPX,'6[>&"9.FQ`8D0:*X^!6,0941&2;H MPT4@:@&%-F!Y(PLX70MFT[C6TN:68X M"4*F1^4H2C@,4:&$A:`B^//GE\"_OW_]`)2V%!JJB=#'"#[,((,0#`H!A0QI MI/&5;@8PV(8!TW4@QAA*.,'@5[D9\(80,QCQQ2%BQ/#`;1-6*,0#0[2`@@`Q M=/&`$",:L!5Z7#Q8FU=O/#!##N[U`D('4X`PP/\`5=RG7Q$W%"$!`D_JAX`' M6$J`08`V$$C-`F98U880$$(!1V)PI+&5CG"$829M#Q"1`!,Z(,9%#CF$4:$, M#\@RC4,#S*`;%$(^`(<9<'"0``-;(/$`6%IQ%:&$,ABW)A1NF%%"&CW@%#0@0I,"++$J1A,><,3&V'*UL=BKCEQ5*@0; M.61`!1`03_Q1ZQ]4;!`A%\5A9<8;8?#`Q`$9B$AF"3.XB6<) MCYKYX(4B/MCI(%I0X8<&=PS2GU)%7#G'$J))B4"J6O9W@QPV0$#(K5#DNMMX MAZ&+7L,ER'`;AB]0@`K_%4CDQH49(%K7!@XH#`+$%0H:AYB:0G!1P1_/=!&Q M#+FFP48;#Z2A8QK)3<=L#L[ZAD\BIIFF%``8>'##:%-Z@!\`20U]A@('XYJ; M>0GGX$,&6,>`1`XVBILP$55@TLL`&RRHL;!"&-O+#R8X41R?-7<5AAJBC)PK MA+GJEMX+'*C$P=:(&5!"ST4JDD021QQQ>!)-G($!TACF-;I8'$ M"L*L@(1X!IAQW(-.=+!%Z`2TD(`2%?C@!!Q"Y`!%X8E`H#T$6)```0Q'Z-&O M_Y8W*+#]-]L7AQ`_P05DJX(0* MT>8K4.""YT+VARKD@$'%:TR%?+`"UE'#'"ZH$Q^>4`?L/8($`0"`J_B#`*@Q M8@%CFM"C2O""!-##2X2H@0JB4(.ZC`$$4@@/AL!RF"DHX04E@&!B9#`#G@RB M"C)$`, M!&#"&$A`#`M88!7$,(0%!E`E/"1OQQ:^X*/^!0G*"#\A0`1;PP`6W M8X`%$=&"%"B("^B!0P+=9QM@Q<8)%R@$#V`3QIA5B%PEZ$$&1L6#$T"Q%RRH M9"8P"1I-=E$1G0PCA&SVJS2T04]KV$$56C`&13"`"D"DC6Q@-BR)Q2P\%2@5 M(2*0`MJ,"&;%*4$.PEB;XX2A#V2H`AU0\(L3+%.$F>2/!YYI#:<8"@XYF$'[ MJ#D>"(XS!U:80`$HT0M#,$`%3I#!B.#PJ$IYA8]L,,`,.("*0MS!#ET@4V,B M]@;!Y0V6Z,%9&'*`A`E,(!K_=)64!IJ(.#)@`3.PS@H7>BT*_4]'5_%!%22) MB#L\H3B'S(I'$8@H'X``$1'_((*>8!:B9>%IGIM*C(YJ!@6<9A&@S=PI01%Q MJPV$@4&)F=1A5EB=/\Y`"E%@H/XR8+/_B54K!O"<.BW*`Q_HJ6.=FR=8U;0@ M\10G#6:])%H_(P&UTC?HN`RDJ` MIR?<`%3N@(,A2`\KRL*11V57WAZ%P0<)4(0+,BJ>Z[[("'I=Q!T$,`4B2"%G M86B#_VY!Q*<(J=<1['4O?+TH7VH0H``"F,I]KZ(G(8)(/%+`@2((X`.J&<=F M;\C!51VQ"A2TH`P4:'`7=JQ0*+"VPI#]F6\GV][@>K$'+6!"#56#`@*(8044 ML`,'#.._E=XF!T98\0N2^&*-SF#&D_B`%LIQ@"V88`!!,`QG:Q;DG&;2R-#L M@0LH((*96+0&5#`"$B(E(<#F8`!:GH%M#BDA(3A!`(W0`@\6P(-5JD8+!7"` M#P8'Y`LW(L-P3L0"H$`&\'J!#J9EP`$Z$%280@A#@$X$`5X@Z#Y"J(]=0+0B MQD"'*4AA!C$00(*1,0'K\8FW0EXOD36\UD.(0-#,ZD(*0/]0+VILX@M?H$,6 M#HNS-N1@65E6-1#)U#^8O6$&LD:$!21-F^,@P0$'0`0!.N`$=*V("Y9F!*;? M6VQ#B.`!+6V,>F)0@0NLP`5B*,`*1J"&P?F18P]X`?"T71PW%3A(8$;&!;*@ M4-DU1I05H(```%Z`!)C@"6Z+35=D$.]%S'O#T`S#&\RP%71=90,^2$$&4N"# M'*",OUZ9P16<!HY6V0YSQI<\V[$\H) M9!##2+0]N/X]O`01-T0-*+#E'D7(*[F9&(]LUC\V3*>LQQ]R\J]^L!P\@=5I M.-.K*<39XPBI"QR@`OG3"$SP`C:"7XF]&>HP@`B_@`CR@`W^S`;"T(^C2!IKB!"^0`0.0`%K@:(F@!5Z0 M%C%P@S?8RA<+IPAH<``",``9X`,],#&Y94#.@@0H!%N)8`$$D(8$H`5:H(:[IAJ' M@`)B(``AT(5>,',9D`4[,`!Y0`7'1`%.^`[#,(B$V`AC\!11-`9,<`=N9`%W M\`5FZ`[>]`6,Z(B/&!(U(8F(<(@-H8F>N`B9^(F2IPRB6(J&$(JFR``=L`8E ?98JN&`)(\(2BV`)TT$VNZ(HU0`>#=8N\V(N+$`@`.S\_ ` end -----END PRIVACY-ENHANCED MESSAGE-----